THIRD AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
SEATTLE FILMWORKS, INC.
Except for the amendments to the Amended and Restated Articles of
Incorporation made pursuant to the Certificate of Information attached hereto as
Exhibit A, these Third Amended and Restated Articles of Incorporation correctly
set forth without change the corresponding provisions of the Second Amended and
Restated Articles of Incorporation as theretofore amended and, together with the
amendments which have been incorporated herein, supersede the Second Amended and
Restated Articles of Incorporation and all amendments thereto.
ARTICLE I
The name of this corporation is SEATTLE FILMWORKS, INC.
ARTICLE II
This corporation has perpetual existence.
ARTICLE III
The purpose or purposes for which this corporation is organized are:
(1) To advertise and market various products and services, to distribute
film, to provide various film developing and processing services and to develop
and market various test preparation materials.
(2) To engage in any other lawful business or activity whatsoever which may
hereafter from time to time be authorized by the Board of Directors.
ARTICLE IV
(1) Authorized Capital. The total number of shares which the corporation is
authorized to issue is one hundred three million two hundred fifty thousand
(103,250,000), consisting of one hundred one million two hundred fifty thousand
(101,250,000) shares of common stock, par value $.01, and two million
(2,000,000) shares of preferred stock, par value $.01. Shares shall be issued at
such prices as shall be determined by the Board of Directors. The common stock
is subject to the rights and preferences of the preferred stock as hereinafter
set forth.
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(2) Issuance of Preferred Stock in Series. The preferred stock may be
issued from time to time in one or more series in any manner permitted by law
and the provisions of these Restated Articles of Incorporation, as determined
from time to time by the Board of Directors and stated in the resolution or
resolutions providing for the issuance thereof, prior to the issuance of any
shares thereof. The Board of Directors shall have the authority to fix and
determine and to amend, subject to the provisions hereof, the rights and
preferences of the shares of any series that is wholly unissued or to be
established. Unless otherwise specifically provided in the resolution
establishing any series, the Board of Directors shall further have the
authority, after the issuance of shares of a series whose number it has
designated, to amend the resolution establishing such series to decrease the
number of shares of that series, but not below the number of shares of such
series then outstanding.
(3) Dividends. The holders of shares of the preferred stock shall be
entitled to receive dividends, out of the funds of the corporation legally
available therefor, at the rate and at the time or times as may be provided by
the Board of Directors in designating a particular series of preferred stock. If
such dividends on the preferred stock shall be cumulative, and if dividends
shall not have been paid, then the deficiency shall be fully paid or the
dividends declared and set apart for payment at such rate, but without interest
on cumulative dividends, before any dividends on the common stock shall be paid
or declared and set apart for payment. The holders of the preferred stock shall
not be entitled to receive any dividends thereon other than the dividends
referred to in this section, unless otherwise provided by the Board of Directors
in designating a particular series of preferred stock.
(4) Redemption. The preferred stock may be redeemable in such amounts, and
at such time or times, as may be provided by the Board of Directors in
designating a particular series of preferred stock. In any event, such preferred
stock may be repurchased by the corporation to the extent legally permissible.
(5) Liquidation. In the event of any liquidation, dissolution or winding up
of the affairs of the corporation, whether voluntary or involuntary, then,
before any distribution shall be made to the holders of the common stock, the
holders of the preferred stock at the time outstanding shall be entitled to be
paid the preferential amount or amounts per share as may be provided by the
Board of Directors in designating a particular series of preferred stock plus
dividends accrued thereon to the date of such payment. The holders of the
preferred stock shall not be entitled to receive any distributive amounts upon
the liquidation, dissolution or winding up of the affairs of the corporation
other than the distributive amounts referred to in this section, unless
otherwise provided by the Board of Directors in designating a particular series
of preferred stock.
(6) Conversion. Shares of preferred stock may be convertible to shares of
common stock at such rate and subject to such adjustments as may be provided by
the Board of Directors in designating a particular series of preferred stock.
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(7) Voting Rights. Holders of preferred stock shall have such voting rights
as may be provided by the Board of Directors in designating a particular series
of preferred stock.
ARTICLE V
Shareholders of this corporation have no preemptive rights to acquire
additional shares issued by the corporation.
ARTICLE VI
At each election for directors, every shareholder entitled to vote at such
election has the right to vote in person or by proxy the number of shares of
stock held by him for as many persons as there are directors to be elected. No
cumulative voting for directors shall be permitted.
ARTICLE VII
(1) No contracts or other transactions between the corporation and any
other corporation, and no act of the corporation shall in any way be affected or
invalidated by the fact that any of the directors of the corporation are
pecuniarily or otherwise interested in, or are directors or officers of, such
other corporation; and
(2) Any director individually, or any firm of which any director may he a
member, may be a party to, or may be pecuniarily or otherwise interested in, any
contracts or transactions of the corporation, provided that the fact that he or
such firm is so interested shall be disclosed or shall have been known to the
Board of Directors or a majority thereof.
ARTICLE VIII
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in these Articles of Incorporation, in the manner now or
hereafter prescribed by law, and all rights and powers conferred herein on
shareholders and directors are subject to this reserved power.
ARTICLE IX
(1) Prevention of Greenmail. Any purchase by the corporation of voting
shares from an interested shareholder (as hereinafter defined), other than
pursuant to an offer to the holders of all of the outstanding shares of the same
class of voting shares as those so purchased, at a per share price in excess of
its fair market value (as hereinafter defined) at the time of such purchase of
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the shares so purchased, shall require the affirmative vote of the holders of at
least a majority of the shares entitled to be counted under this Article IX, or
if any class of shares is entitled under these Restated Articles of
Incorporation or under law to vote thereon as a class, then by the affirmative
vote of at least a majority of the shares of each class entitled to be counted
under this Article IX and of the total shares entitled to be counted under this
Article IX. All outstanding shares entitled to vote under these Restated
Articles of Incorporation or under law shall be entitled to be counted under
this Article IX except shares owned by or voted under the control of an
interested shareholder may not be counted to determine whether shareholders have
approved such purchase for purposes of this Article IX. The vote of the shares
owned by or under the control of an interested shareholder, however, shall be
counted in determining whether a quorum exists.
(2) Definitions. For the purpose of this Article:
(a) A "person" means any individual, firm, corporation or other entity.
(b) An "interested shareholder" means any person (other than the
corporation or any subsidiary) or group of affiliated persons who beneficially
own twenty percent (20%) or more of the outstanding voting shares of the
corporation, excluding any person who, in good faith and not for the purpose of
circumventing this Article IX, is an agent, bank, broker, nominee or trustee for
another person, if such person is not an interested shareholder.
(c) A "subsidiary" means any corporation of which a majority of each class
of equity security is owned directly or indirectly by the corporation.
(d) An "affiliated person" means any person who either her acts jointly or
in concert with, or directly or indirectly controls, is controlled by, or is
under common control with another person.
(e) "beneficially own" has the meaning ascribed to such term in Rule 13d-3
of the Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on January 1, 1986.
(f) "fair market value" means the closing sale price on the trading day
immediately preceding the date in question of a share of such stock on the
Composite Tape for New York Stock Exchange - Listed Stocks, or, if such stock is
not quoted on the Composite Tape, on the New York Stock Exchange, or, if such
stock is not quoted on such exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on which such
stock is listed, or, if such stock is not listed on any such exchange, the last
sale price or closing bid quotation, whichever is available, with respect to a
share of such stock on the trading day immediately preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or, if no such quotations are
available, the fair market value on the date in question of a share of such
stock as determined by the Board of Directors in good faith.
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ARTICLE X
Pursuant to RCW 23B.17.020(3)(d), the Company expressly elects not to be
covered by the provisions of RCW 23B.17.020.
ARTICLE XI
LIMITATION OF DIRECTOR LIABILITY
No director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for his or her conduct as a
director on or after the date this Article become effective, except for: (i)
acts or omissions that involve intentional misconduct or a knowing violation of
law by the director, (ii) approval of certain distributions or loans in
violation of RCW 23B.08.310, or (iii) any transaction from which the director
will personally receive a benefit in money, property or services to which the
director is not legally entitled. If, after approval by shareholders of this
Article, the Washington Business Corporation Act, is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the corporation shall be
eliminated or limited to the fullest extent permitted by the Washington Business
Corporation Act, as so amended. Any amendment to or repeal of this Article shall
not adversely affect any right or protection of a director of the corporation
for or with respect to any acts or omissions of such director occurring prior to
such amendment or repeal.
ARTICLE XII
DIRECTORS
The number of directors which shall constitute the entire Board of
Directors of this corporation shall be not less than three (3) nor more than
fifteen (15). Within these limits, the number of directors shall be fixed from
time to time by resolutions of the Board of Directors. The Board shall be
divided into three classes: Class I Directors, Class II Directors and Class III
Directors. Each such class of directors shall be as nearly equal in number of
directors as possible. Each director shall serve for a term ending at the third
annual shareholders' meeting following the annual meeting at which such director
was elected; provided, however, that the directors first elected as Class I
Directors shall serve for a term ending at the annual meeting to be held in the
year following the first election of directors by classes, the directors first
elected as Class II Directors shall serve for a term ending at the annual
meeting to be held in the second year following the first election of directors
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by classes and the directors first elected as Class III Directors shall serve
for a term ending at the annual meeting to be held in the third year following
the first election of directors by classes. Notwithstanding the foregoing, each
director shall serve until his successor shall have been elected and qualified
or until his earlier death, resignation or removal.
At each annual election, the directors chosen to succeed those whose terms
then expire shall be identified as being of the same class as the directors they
succeed, unless, by reason of any intervening changes in the authorized number
of directors, the Board shall designate one or more directorships whose terms
then expire as directorships of another class in order more nearly to achieve
equality in the number of directors among the classes. Newly created
directorships resulting from any increase in the number of directors or any
vacancies on the Board of Directors resulting from death, resignation, removal
or other cause shall be filled by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board
of Directors. Any director elected to fill a vacancy in accordance with the
preceding sentence shall be of the same class as the director he succeeds and
shall hold office for the remainder of the full term of such class, unless, by
reason of any previous changes in the authorized number of directors, the Board
shall designate the vacant directorship as a directorship of another class in
order more nearly to achieve equality in the number of directors among the
classes.
Notwithstanding the rule that the three classes shall be nearly equal in
number of directors as possible, upon any change in the authorized number of
directors, each director then continuing to serve as such will nevertheless
continue as director of the class of which he is a member, until the expiration
of his current term or his earlier death, resignation or removal. If there are
any newly created directorships or vacancies on the Board, the Board shall
allocate any such directorship or vacancy to that of the available classes of
directors whose term of office is due to expire at the earliest date following
such allocation.
At any meeting of shareholders called expressly for that purpose, the
entire Board of Directors, or any member thereof, may be removed from office at
any time, but only (1) for Cause and (2) by the affirmative vote of the holders
of a majority of shares then entitled to vote at an election of such directors.
For purpose of this Article XII, "Cause" shall be construed to exist only if the
director whose removal is proposed (i) has been convicted of a felony by a court
of competent jurisdiction or (ii) has been adjudged by a court of competent
jurisdiction to be liable for engaging in an act involving willful malfeasance
which had a material adverse effect on this corporation.
Where a question of removal of a director for Cause is to be presented for
shareholder consideration, an opportunity must be provided such director to
present his or her defense to the shareholders by a statement which must
accompany or precede the notice of the meeting at which removal of such director
for Cause shall be considered. Under such circumstances the director involved
shall be served with notice of the meeting at which such action is proposed to
be taken together with a statement of the specific charges and shall be given an
opportunity to be present and to be heard at the meeting at which his or her
removal is considered.
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DATED as of this 27 day of January, 1998.
SEATTLE FILMWORKS, INC.
By /s/ Case Kuehn
Case Kuehn, Vice President - Finance
Exhibit A
CERTIFICATE OF INFORMATION
TO
THIRD AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
SEATTLE FILMWORKS, INC.
This Certificate of Information accompanies and is submitted in connection
with the filing of Third Amended and Restated Articles of Incorporation of
Seattle FilmWorks, Inc., a Washington corporation, pursuant to RCW
23B.10.070(4).
1. The name of the corporation is Seattle FilmWorks, Inc.
2. The amendments to the Amended and Restated Articles of Incorporation of
the corporation are as follows:
(a) Addition of Article XII, which were duly adopted by the Shareholders on
February 12, 1997, pursuant to the provisions or RCW 23B.10.030.
3. The amendments and the Third Amended and Restated Articles of
Incorporation were duly adopted by the Board of Directors by unanimous consent
on January 27, 1998, pursuant to the provisions or RCW 23B.10.020.
DATED as of this 27 day of January, 1998.
SEATTLE FILMWORKS, INC.
By /s/ Case Kuehn
Case Kuehn, Vice President - Finance