RESTATED ARTICLES OF INCORPORATION
OF
COLORADO MEDTECH, INC.
(AS OF SEPTEMBER 28, 1999)
ARTICLE I
The name of the Corporation is: Colorado MEDtech, Inc.
ARTICLE II
A. The nature of the business of the Corporation and the objects
and purposes to be transacted, promoted and carried on by it are:
1. To manufacture, produce, import, export, purchase or otherwise
acquire, hold, own, use, maintain, sell at wholesale or retail,
lease, or otherwise dispose of and generally deal in medical
equipment, systems, supplies and related products of any and all
kinds, for itself or as agent and/or as a manufacturer's
representative of other medical supply houses, including, without
being limited to, the buying, selling, leasing, renting,
maintaining, using, operating, installing, and distributing of
all materials, equipment and personal property appurtenant or
incident to and useful in the medical equipment and systems
business, together with the rights incident thereto of
establishing and maintaining such equipment upon public or
private property; and to purchase, own, hold, convey and
otherwise use and enjoy real and personal property of all kinds
for the operation of the aforesaid business, and in connection
therewith, to acquire, construct, maintain, and operate buildings
and equipment deemed necessary or convenient in connection
therewith.
2. To engage in any commercial, industrial, manufacturing or
agricultural enterprises calculated or designed to be profitable
to this Corporation and in conformity with the laws of the State
of Colorado.
3. To generally engage in any lawful business.
The objects and purposes specified in each of the foregoing
paragraphs shall not be limited or restricted by reference or inference from
the terms of any other paragraph but each shall be regarded as an independent
object and purpose.
B. In furtherance of the foregoing purposes, the Corporation shall have
and may exercise all of the rights, powers and privileges now and hereafter
conferred upon corporations organized under the laws of the State of
Colorado. In addition, it may do everything necessary, suitable or proper for
the accomplishment of any of its corporate purposes, including the following:
(a) To borrow money for any corporate purposes from its officers,
directors or shareholders, upon fair and equitable terms and conditions.
(b) To acquire shares of its own capital stock, and to hold the same
either as treasury stock, or to cancel the same in the manner provided by
law; any stock so held in the treasury shall not be voted.
ARTICLE III
This Corporation shall have perpetual existence.
ARTICLE IV
A. The aggregate number of shares of all classes of capital stock which
the Corporation shall have authority to issue is Thirty Million (30,000,000),
consisting of (i) Twenty-Five Million (25,000,000) shares of Common Stock, no
par value per share, and (ii) Five Million (5,000,000) shares of series
preferred stock, no par value per share ("Preferred Stock"). The Board of
Directors shall have the authority to fix the rights, powers, preferences and
privileges, and the qualifications, limitations or restrictions thereof, of
any series of Preferred Stock, including, but not limited to, dividend
rights, dividend rates, conversion rights, voting rights, and liquidation
preferences; and to fix the number of shares constituting any such series and
the designation thereof; and to increase or decrease the number of shares of
any such series (but not below the number of shares thereof then
outstanding).
B. SERIES A JUNIOR PARTICIPATING PREFERRED STOCK.
Out of the five million (5,000,000) shares of Preferred Stock, no par
value per share, authorized under Section IV.A., a series of preferred stock
of the Corporation is created, and the designation and amount thereof and the
relative rights and preferences of the shares of such series, are as follows:
B.1. DESIGNATION AND AMOUNT.
The shares of such series shall be designated as "Series A
Junior Participating Preferred Stock" (the "PREFERRED SHARES") and the number
of shares constituting the Preferred Shares shall be one hundred fifty
thousand (150,000). Such number of
2
shares may be increased or decreased by resolution of the Board of Directors
and any necessary shareholder approval; PROVIDED, HOWEVER, that no decrease
shall reduce the number of shares of Preferred Shares to a number less than
the number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Preferred Shares.
B.2. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the rights of the holders of any shares of any
series of preferred stock (or any similar stock) ranking prior and superior
to the Preferred Shares with respect to dividends, the holders of Preferred
Shares, in preference to the holders of Common Stock, and of any other junior
stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in
each year (each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Preferred Shares, in
an amount per share (rounded to the nearest cent) equal to the greater of (i)
$1.00 or (ii) subject to the provision for adjustment hereinafter set forth,
100 times the aggregate per share amount of all cash dividends, and 100 times
the aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share
or fraction of a share of Preferred Shares. In the event the Corporation
shall at any time after December 22, 1998, declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then in each such case the amount to which holders of shares of
Preferred Shares were entitled immediately prior to such event under clause
(ii) of the preceding sentence shall be adjusted by multiplying such amount
by a fraction, the number or of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) The Corporation shall declare a dividend or distribution
on the Preferred Shares as provided in paragraph (a) of this Section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock or a subdivision of
the outstanding Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1.00 per share on the Preferred Shares
shall nevertheless be
3
payable, out of funds legally available for such purpose, on such subsequent
Quarterly Dividend Payment Date.
(c) Dividends shall being to accrue and be cumulative on
outstanding shares of Preferred Shares from their date of issue. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the shares of
Preferred Shares in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board
of Directors may fix a record date for the determination of holders of
Preferred Shares entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be not more than 60 days prior to
the date fixed for the payment thereof.
B.3. VOTING RIGHTS.
(a) Subject to the provision for adjustment hereinafter set
forth, each Preferred Share shall entitle the holder thereof to 100 votes on
all matters submitted to a vote of the shareholders of the Corporation. In
the event the Corporation shall at any time after December 22, 1998, declare
or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise) into a greater or
lesser number of shares of Common Stock, then in each such case the number of
votes per share to which holders of shares of Preferred Shares were entitled
immediately prior to such event shall be adjusted by multiplying such number
by a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) Except as otherwise provided herein or by law, the
holders of Preferred Shares and the holders of Common Stock and any other
capital stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of shareholders of
the Corporation.
(c) Except as set forth herein or required by law, holders of
Preferred Shares shall have no special voting rights and their consent shall
not be required (except to the extent they are entitled to vote with holders
of Common Stock as set forth herein) for taking any corporate action.
B.4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Preferred Shares as provided in Section B.2 are
in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Preferred Shares
outstanding shall have been paid in full, the Corporation shall not:
4
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Preferred Shares;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Preferred
Shares, except dividends paid ratably on the Preferred Shares and all such
parity stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Preferred Shares;
PROVIDED, HOWEVER, that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares of
any stock of the Corporation ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Preferred Shares; or
(iv) redeem or purchase or otherwise acquire for
consideration any Preferred Shares, or any stock ranking on a parity with the
Preferred Shares, except in accordance with a purchase offer made in writing
or by publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series
or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could under paragraph (a) of
this Section B.4, purchase or otherwise acquire such shares at such time and
in such manner.
B.5. REACQUIRED SHARES.
Any Preferred Shares purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and canceled promptly
after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of preferred stock and may be reissued
as part of a new series of preferred stock subject to the conditions and
restrictions on issuance set forth herein, in the Articles of Incorporation,
as amended, or in any other certificate of designation creating a series of
preferred stock or any similar stock or as otherwise required by law.
5
B.6. LIQUIDATION, DISSOLUTION OR WINDING UP.
Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (a) to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Preferred Shares unless, prior thereto, the holders of
Preferred Shares shall have received the greater of (i) $100 per share, plus
an amount equal to accrued and unpaid dividends an distributions thereon,
whether or not declared, to the date of such payment, or (ii) an aggregate
amount per share, subject to the provision for adjustment hereinafter set
forth, equal to 100 times the aggregate amount to be distributed per share to
holders of Common Stock, or (b) to the holders of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with
the Preferred Shares, except distributions made ratably on the Preferred
Shares and all such parity stock in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time
after December 22, 1998, declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification
aor otherwise) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of shares of
Preferred Shares were entitled immediately prior to such event under clause
(a)(ii) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction of the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
B.7. CONSOLIDATION, MERGER, ETC.
In case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the shares of Common Stock
are exchanged for or changed into other stock or securities, cash and/or any
other property, then in any such case each share of Preferred Shares shall at
the same time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time after December 22, 1998, declare or pay any divided on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Preferred Shares
shall be adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
6
B.8. NO REDEMPTION.
The shares of Preferred Shares shall not be redeemable.
B.9. RANK.
The Preferred Shares shall rank, with respect to the payment
of dividends and the distribution of assets, junior to all series of any
other class of the Corporation's preferred stock.
B.10. FRACTIONAL SHARES.
Preferred Shares may be issued in fractions of a share which
are integral multiples of one one-hundredth of a share which shall entitle
the holder, in proportion to such holder's fractional shares, to receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Preferred Shares.
B.11. AMENDMENT.
The Articles of Incorporation of the Corporation, as amended,
shall not be amended in any manner which would materially alter or change the
powers, preferences or rights of the Preferred Shares so as to affect them
adversely without the affirmative vote of the holders of at least two-thirds
of the outstanding shares of Preferred Shares, voting together as a single
class.
C. Each shareholder of record shall have one vote for each share of
stock standing in his name on the books of the Corporation and entitled to
vote. In the election of directors, cumulative voting shall not be allowed.
D. Shareholders of the capital stock of this Corporation shall not have
the pre-emptive or preferential right to subscribe for any shares of the
capital stock of this Corporation, whether nor or hereafter authorized, and
the right to acquire additional or treasury shares of the Corporation or
securities convertible into shares or carrying stock purchase warranty or
privileges.
E. The Board of Directors may, from time to time, distribute to the
shareholders in partial liquidation, out of stated capital or capital surplus
of the Corporation, a portion of its assets, in cash or property, subject to
the limitations contained in the statutes of the State of Colorado.
7
ARTICLE V
The number of persons constituting the Board of Directors of the
Corporation shall be fixed by the Bylaws of the Corporation. Directors need
not be residents of the State of Colorado, nor shareholders of the
Corporation, and shall exercise all the powers conferred on the Corporation
by these Articles of Incorporation and by the laws of the State of Colorado.
ARTICLE VI
No contract or other transaction of the Corporation with any other
person, firm, or corporation, or in which this Corporation is interested,
shall be affected by reason of any of the directors or officers of this
Corporation being interested, in their individual capacities, or as an
officer or director of another corporation, individually or jointly with
others as a party to such contract or transaction; provided that the fact of
such interest is known or disclosed to the Board. Any member of the Board so
interested may be counted in determining the existence of a quorum at which
the matter is considered and may vote at the meeting at which this matter is
taken up, as if he were not so interested.
ARTICLE VII
[DELETED]
ARTICLE VIII
The Corporation shall, to the fullest extent permitted by Colorado law as
in effect at any time, indemnify any person against all liability and expense
(including attorney's fees) incurred by reason of the fact that he is or was
a director of officer of the Corporation or, while serving as a director or
officer of the Corporation, he is or was serving at the request of the
Corporation as a director, officer, partner or trustee of, or in any similar
managerial or fiduciary position of, or as an employee or agent of, another
corporation, partnership, joint venture, trust, association or other entity.
Expenses (including attorney's fees) incurred in defending an action, suit or
proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding to the full extent and under the
circumstances permitted by Colorado law. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee, fiduciary or agent of the Corporation against any liability
asserted against and incurred by such person in any such capacity or arising
out of such person's position, whether or not the Corporation would have the
power to indemnify against such liability under the provisions of this
Article VIII. The indemnification provided by this Article VIII shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under these articles of incorporation, any bylaw, agreement, vote of
shareholders or disinterested directors, or otherwise, shall inure to the
benefit of their heirs, executors, and administrators. The provisions of this
Article VIII shall not be deemed to preclude the Corporation from
indemnifying other
8
persons from similar or other expenses and liabilities as the board of
directors or the shareholders may determine a specific instance or by a
resolution of general application.
ARTICLE IX
The officers of the Corporation shall be subject to the doctrine of
corporate opportunities only insofar as it applies to business opportunities
in which this Corporation has expressed an interest as determined from time
to time by the Corporation's Board of Directors, as evidenced by resolutions
appearing in its minutes. When so delineated, opportunities within such areas
of interest shall be disclosed promptly to the Board of Directors. Until such
time as this Corporation, through its Board of Directors, has designated an
area of interest, the officers shall be free to engage in such areas and to
continue a business existing prior to the time that such an area of interest
has been designated.
ARTICLE X
The Corporation shall be entitled to treat the registered holder of any
shares of the Corporation as the owner thereof for all purposes, including
all rights derived from such shares, and shall not be bound to recognize any
equitable or other claim to, or interest in, such shares or rights deriving
from such shares, on the part of any other persons, including but without
limiting the generality thereof, a purchaser, assignee or transferee of such
shares or rights deriving from such shares, unless and until such purchaser,
assignee, transferee or other person becomes a registered holder of such
shares, whether or not the Corporation shall have either actual or
constructive notice of the interest of such purchaser, assignee, transferee
or other person. The purchaser, assignee or transferee of any of the shares
of the Corporation shall not be entitled: (1) to receive notice of the
meetings of the shareholders; (2) to vote at such meetings; (3) to examine a
list of these shareholders; (4) to be paid dividends or other sums payable to
shareholders; (5) to own, enjoy and exercise any other property or rights
deriving from such shares against the Corporation, until such purchaser,
assignee or transferee has become the registered holder of such shares.
ARTICLE XI
[DELETED]
ARTICLE XII
By the affirmative vote or concurrence of the holders of a majority of
the outstanding shares of the Corporation, or any class or series thereof,
the shareholders may take any action that, but for this Article, would
require a two-thirds affirmative vote or concurrence of the holders of the
outstanding shares, or any class or series thereof, under the Colorado
Corporation Code.
9
ARTICLE XIII
A director of the Corporation shall not be personally liable to the
Corporation or to its shareholders for monetary damages for breach of
fiduciary duty as a director except that this provision shall not eliminate
or limit the liability of a director to the Corporation or to its
shareholders for monetary damages otherwise existing for: (i) any breach of
the directors' duty of loyalty to the Corporation or to its shareholders;
(ii) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law (iii) acts specified in Section 7-5-
144 of the Colorado Corporation Code, as amended; or (iv) any transaction
from which the director derived any improper personal benefit. If the
Colorado Corporation Code hereafter is amended to eliminate or limit further
the liability of a director, then, in addition to the elimination and
limitation of liability provided by the preceding sentence, the liability of
each director shall be eliminated or eliminated to the fullest extent
permitted by the Colorado Corporation Code as so amended. Any repeal or
modification of this Article XIII shall not adversely affect any right or
protection of a director of the Corporation under this Article XIII, as in
effect immediately prior to such repeal or modification, with respect to any
liability that would have accrued, but for this Article XIII, prior to such
repeal or modification.
10