EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
HUTCHINSON TECHNOLOGY INCORPORATED
ARTICLE I
The name of this Corporation is Hutchinson Technology Incorporated.
ARTICLE II
The registered office of this Corporation is located at 40 West Highland
Park, Hutchinson, Minnesota 55350.
ARTICLE III
This Corporation is authorized to issue an aggregate of 100,000,000
shares, all of which shall be designated as Common Stock, having a par value of
$0.01 per share.
ARTICLE IV
The shareholders of this Corporation shall have no preemptive right to
subscribe to any issue of shares of any class of this Corporation now or
hereafter made. Voting by shareholders shall not be cumulative.
ARTICLE V
(a) Whether or not a vote of shareholders is otherwise required, the
affirmative vote of the holders of not less than two-thirds of the voting power
of the outstanding "voting shares" (as hereinafter defined) of the Corporation
shall be required for (i) the approval or authorization of any "Related Person
Business Transaction" (as hereinafter defined) involving the Corporation or (ii)
the approval or authorization by the Corporation, in its capacity as a
shareholder, of any Related Person Business Transaction involving a "Subsidiary"
(as hereinafter defined) which requires the approval or authorization of the
shareholders of the Subsidiary; provided, however, that such two-thirds voting
requirement shall not be applicable if the "Continuing Directors" (as
hereinafter defined) by a vote of not less than the greater of (A) two-thirds or
(B) two of the Continuing Directors have expressly approved the Related Person
Business Transaction.
(b) For the purposes of this Article V:
(i) The term "Related Person Business Transaction" shall mean (A) any
merger of the Corporation or a Subsidiary with or into a Related Person, (B) any
exchange of shares of the Corporation or a Subsidiary for shares of a Related
Person which, in the absence of this Article, would have required the
affirmative vote of at least a majority of the voting power of the outstanding
shares of the Corporation entitled to vote or the affirmative vote of the
Corporation, in its capacity as a shareholder of the Subsidiary, (C) any sale,
lease, exchange, transfer, or other disposition (in one transaction or a series
of transactions), including without limitation a mortgage or any other security
device, of all or any "Substantial Part" (as hereinafter defined) of the assets
either of the Corporation (including without limitation any voting shares of a
Subsidiary) or of a Subsidiary to or with a Related Person, (D) any sale, lease,
exchange, transfer, or other disposition (in one transaction or a series of
transactions) of all or any Substantial Part of the assets of a Related Person
to or with the Corporation or a Subsidiary, (E) the issuance of any securities
of the Corporation (except pursuant to stock dividends, stock splits, or similar
transactions which would not have the effect of increasing the proportionate
voting power of a Related Person) or of a Subsidiary to a Related Person, (F)
any recapitalization or reclassification that would have the effect of
increasing the proportionate voting power of a Related Person, (G) the adoption
of any plan or proposal for the liquidation or dissolution of the Corporation at
the time the Corporation has a Related Person, and (H) any agreement, contract,
arrangement, or understanding providing for any of the transactions described in
this definition of Related Person Business Transaction.
(ii) The term "Related Person" shall mean and include (A) any person or
entity which, together with its "Affiliates" and "Associates" (both as
hereinafter defined), "beneficially owns" (as hereinafter defined) in the
aggregate 20 percent or more of the outstanding voting shares of the
Corporation, and (B) any Affiliate or Associate (other than the Corporation or a
wholly-owned subsidiary of the Corporation) of any such person or entity. Two or
more persons or entities acting as a syndicate or group, or otherwise, for the
purpose of acquiring, holding, or disposing of voting shares of the Corporation
shall be deemed to be a "person" or "entity", as the case may be.
(iii) The term "Affiliate", used to indicate a relationship with a
specified person or entity, shall mean a person or entity that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, the person or entity specified.
(iv) The term "Associate", used to indicate a relationship with a
specified person or entity, shall mean (A) any entity of which such specified
person or entity is an officer or partner or is, directly or indirectly, the
beneficial owner of 10 percent or more of any class of equity securities, (B)
any trust or other estate in which such specified person or entity has a
substantial beneficial interest or as to which such specified person or entity
serves as trustee or in a similar fiduciary capacity, (C) any relative or spouse
of such specified person, or any relative of such spouse, who has the same home
as such specified person or who is a director or officer of the Corporation or
any Subsidiary, and (D) any person who is a director or officer of such
specified entity or any of its parents or subsidiaries (other than the
Corporation or a wholly-owned subsidiary of the Corporation).
(v) The term "Substantial Part" shall mean 30 percent or more of the
fair market value of the total assets of the person or entity in question, as
reflected on the most recent balance sheet of such person or entity existing at
the time the shareholders of the Corporation would be required to approve or
authorize the Related Person Business Transaction involving the assets
constituting any such Substantial Part.
(vi) The term "Subsidiary" shall mean any corporation, a majority of
the equity securities of any class of which are owned by the Corporation, by
another Subsidiary, or in the aggregate by the Corporation and one or more of
its Subsidiaries.
(vii) The term "Continuing Director" shall mean a director who was a
member of the Board of Directors of the Corporation either on May 15, 1983, or
immediately prior to the time that any Related Person involved in the Related
Person Business Transaction in question became a Related Person, provided that
in no event shall a Related Person involved in the Related Person Business
Transaction in question be deemed to be a Continuing Director.
(viii) The term "voting shares" shall mean shares of capital stock of a
corporation entitled to vote generally in the election of directors, considered
for the purposes of this Article as one class.
(ix) (A) A person or entity "beneficially owns" voting shares of the
Corporation if such person or entity, directly or indirectly, through any
contract, arrangement, understanding, relationship, or otherwise has or shares
(1) voting power which includes the power to vote, or to direct the voting of,
such voting shares, or (2) investment power which includes the power to dispose,
or to direct the disposition of, such voting shares. Any person or entity which,
directly or indirectly, creates or uses a trust, proxy, power of attorney,
pooling arrangement or any other contract, arrangement, or device
with the purpose or effect of divesting such person or entity of beneficial
ownership of voting shares of the Corporation or preventing the vesting of such
beneficial ownership as part of a plan or scheme to avoid becoming a Related
Person shall be deemed for purposes of this Article V to be the beneficial owner
of such voting shares. All voting shares of the Corporation beneficially owned
by a person or entity, regardless of the form which such beneficial ownership
takes, shall be aggregated in calculating the number of voting shares of the
Corporation beneficially owned by such person or entity. Any voting shares of
the Corporation that any person or entity has the right to acquire pursuant to
any agreement, contract, arrangement, or understanding, or upon exercise of any
conversion right, warrant, or option, or pursuant to the automatic termination
of a trust, discretionary account or similar arrangement, or otherwise shall be
deemed beneficially owned by such person or entity. Any voting shares of the
Corporation not outstanding which any person or entity has a right to acquire
shall be deemed to be outstanding for the purpose of computing the percentage of
outstanding voting shares of the Corporation beneficially owned by such person
or entity but shall not be deemed to be outstanding for the purpose of computing
the percentage of outstanding voting shares of the Corporation beneficially
owned by any other person or entity.
(B) Notwithstanding the foregoing provisions of subparagraph
(b)(ix)(A) hereof:
(1) A member of a national securities exchange shall not be deemed
to be a beneficial owner of voting shares of the Corporation held directly or
indirectly by it on behalf of another person or entity solely because such
member is the record holder of such voting shares and, pursuant to the rules of
such exchange, may direct the vote of such voting shares, without instruction,
on other than contested matters or matters that may affect substantially the
rights or privileges of the holders of the voting shares of the Corporation to
be voted, but is otherwise precluded by the rules of such exchange from voting
without instruction;
(2) A commercial bank, broker or dealer or insurance company which
in the ordinary course of business is a pledgee of voting shares of the
Corporation under a written pledge agreement shall not be deemed to be the
beneficial owner of such pledged voting shares until the pledgee has taken all
formal steps necessary to declare a default and determines that the power to
vote or to direct the vote or to dispose or to direct the disposition of such
pledged securities will be exercised, provided that the pledgee agreement is
bona fide and was not entered into with the purpose nor with the effect of
changing or influencing the control of the Corporation nor in connection with
any transaction having such purpose or effect and, prior to default, does not
grant to the pledgee the power to vote or to direct the vote of the pledged
voting shares of the Corporation; and
(3) A person or entity engaged in business as an underwriter of
securities who acquires voting shares of the Corporation through its
participation in good faith in a firm commitment underwriting registered under
the Securities Act of 1933, or comparable successor law, rule or regulation,
shall not be deemed to be the beneficial owner of such voting shares until the
expiration of forty days after the date of such acquisition.
(x) A merger shall mean a statutory merger or consolidation.
(c) For the purposes of this Article V the Continuing Directors by
a vote of not less than the greater of (A) two-thirds or (B) two of the
Continuing Directors shall have the power to make a good faith determination, on
the basis of information known to them, of: (i) the number of voting shares of
the Corporation that any person or entity "beneficially owns", (ii) whether a
person or entity is an Affiliate or Associate of another, (iii) whether the
assets subject to any Related Person Business Transaction constitute a
Substantial Part, (iv) whether any business transaction is one in which a
Related Person has an interest, and (v) such other matters with respect to which
a determination is required under this Article V.
(d) The provisions set forth in this Article V, including this
paragraph (d), may not be repealed or amended in any respect unless such action
is approved by the affirmative vote of the holders of not less than two-thirds
of the voting power of the outstanding voting shares of the Corporation.
ARTICLE VI
No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director; provided, however, that this Article VI shall not eliminate
or limit the liability of a director to the extent provided by applicable law
(i) for any breach of the director's duty of loyalty to the Corporation or its
shareholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) under section
302A.559 or 80A.23 of the Minnesota Statutes, (iv) for any transaction from
which the director derived an improper personal benefit, or (v) for any act or
omission occurring prior to the effective date of this Article VI. No amendment
to or repeal of this Article VI shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.