RESTATED ARTICLES OF INCORPORATION
OF
TEKTRONIX, INC.
ARTICLE I
The name of the corporation is TEKTRONIX, INC. and its duration shall be
perpetual.
ARTICLE II
The purposes for which the corporation is organized are:
(a) To research, design, develop, manufacture, sell, lease,
repair, service, import and export, and otherwise deal enterprise calculated or
resigned to be profitable to this in cathode ray oscilloscopes and other
electronic instruments and devices;
(b) To engage in any industrial, commercial and agricultural
corporation;
(c) To endorse, guarantee and secure the payment and satisfaction
of bonds, coupons, mortgages, deeds of trust, debentures, securities, notes,
obligations, evidences of indebtedness, capital shares, interest on obligations
and dividends on capital shares of other corporations; also to assume the whole
or any part of the liabilities existing or prospective of any person,
corporation, firm or association and to aid in any manner any other person, firm
or corporation with which it has business dealings or whose stocks, bonds or
other obligations are held or are in any manner guaranteed by the corporation,
and to do any other acts and things for the preservation, protection,
improvement or enhancement of the value of such stocks, bonds or other
obligations; and to use its name and credit for the benefit of other
corporations, firms, associations, partnerships, trust, companies, or
individuals, in any way which may seem to the corporation to be proper or
necessary in connection with the business of the corporation;
(d) In general, to engage in any lawful activity and to do any and
all things, to the same extent as a natural person might or could do, and to
carry on any business in connection therewith and to do all things not forbidden
and with all the powers conferred upon corporations by the Oregon Business
Corporation Act, as amended.
ARTICLE III
1. The aggregate number of shares which the corporation shall
have authority to issue is two hundred one million (201,000,000) shares, divided
into two hundred million (200,000,000) Common Shares, without par value, and one
million (1,000,000) No Par Serial Preferred Shares, without par value.
2. Holders of Common Shares are entitled to one vote per share on
any matter submitted to the shareholders. On dissolution of the corporation,
after any preferential amount
with respect to the No Par Serial Preferred Shares has been paid or set aside,
the holders of Common Shares and the holders of any series of No Par Serial
Preferred shares entitled to participate in the distribution of assets are
entitled to receive the net assets of the corporation.
3. The corporation's board of directors is authorized, subject to
limitations prescribed by the Oregon Business Corporation Act, as amended from
time to time (the "Act"), and by the provisions of this Article, to provide for
the issuance of No Par Serial Preferred Shares in series, to establish from time
to time the number of shares to be included in each series and to determine the
designations, relative rights, preferences and limitations of the shares of each
series. The authority of the board of directors with respect to each series
includes determination of the following:
(1) The number of shares in and the distinguishing designation
of that series;
(2) Whether shares of that series shall have full, special,
conditional, limited or no voting rights, except to the extent otherwise
provided by the Act;
(3) Whether shares of that series shall be convertible and the
terms and conditions of the conversion, including provision for adjustment of
the conversion rate in circumstances determined by the board of directors;
(4) Whether shares of that series shall be redeemable and the
terms and conditions of redemption, including the date or dates upon or after
which they shall be redeemable and the amount per share payable in case of
redemption, which amount may vary under different conditions or at different
redemption dates;
(5) The dividend rate, if any, on shares of that series, the
manner of calculating any dividends and the preferences of any dividends;
(6) The rights of shares of that series in the event of
voluntary or involuntary dissolution of the corporation and the rights of
priority of that series relative to the Common Shares and any other series of No
Par Serial Preferred Shares on the distribution of assets on dissolution; and
(7) Any other rights, preferences and limitations of that
series that are permitted by law to vary.
ARTICLE IV
No shareholder of the corporation shall have any pre-emptive or other
first right to acquire treasury shares or any new issue of shares of the
corporation either presently authorized or to be authorized.
ARTICLE V
Any directorship to be filled by reason of an increase in the number
of directors may be filled by the affirmative vote of a majority of the
increased number of directors fixed by the
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bylaws. Any such directorship not so filled shall be filled by election at the
next annual meeting of shareholders or at a special meeting of shareholders
called for that purpose.
ARTICLE VI
Any contract or other transaction between the corporation and one or
more of its directors, or between the corporation and another party in which one
or more of its directors are interested shall be valid notwithstanding the
presence or participation of such director or directors in a meeting of the
board of directors which acts upon or in reference to such contract or
transaction, if the fact of such interest shall be disclosed or known to the
board of directors and it shall authorize and approve such contract or
transaction by a vote of a majority of the directors present. Such interested
director or directors may be counted in determining whether a quorum is present
at any such meeting, but shall not be counted in calculating the majority
necessary to carry such vote. This Article VI shall not invalidate any contract
or other transaction which would otherwise be valid under applicable law.
ARTICLE VII
A. The corporation shall indemnify to the fullest extent then
permitted by law any person who is made, or threatened to be made, a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or otherwise (including an action, suit
or proceeding by or in the right of the corporation) by reason of the fact that
the person is or was a director or officer of the corporation or is or was
serving at the request of the corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise against all
expenses (including attorneys' fees), judgments, amounts paid in settlement and
fines actually and reasonably incurred in connection therewith.
B. Expenses incurred in connection with an action, suit or
proceeding may be paid or reimbursed by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director or officer to repay such amounts if it shall
ultimately be determined that such person is not entitled to be indemnified by
the corporation.
C. The indemnification provided hereby shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any statute, bylaw, agreement, vote of shareholders or directors or otherwise,
both as to action in any official capacity and as to action in another capacity
while holding an office, and shall continue as to a person who has ceased to be
a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such person.
D. The corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or fiduciary with respect to any employee benefit
plans of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent, or as a fiduciary of an employee
benefit plan, of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against and incurred by the person in
any such capacity, or arising out of the
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person's status as such, whether or not the corporation would have the power to
indemnify the person against such liability under the provisions of this Article
or the Oregon Business Corporation Act.
E. Any person other than a director or officer who is or was an
employee or agent of the corporation, or fiduciary within the meaning of the
Employee Retirement Income Security Act of 1974 with respect to any employee
benefit plans of the corporation, or is or was serving at the request of the
corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise may be indemnified to such extent as the
board of directors in its discretion at any time or from time to time may
authorize.
ARTICLE VIII
1. Whether or not a vote of shareholders is otherwise required,
the affirmative vote of the holders of not less than 80 percent of the
outstanding number of "Voting Shares" (as hereinafter defined) of the
corporation shall be required for the approval or authorization of any "Business
Transaction" (as hereinafter defined) with a "Related Person" (as hereinafter
defined) or any Business Transaction in which a Related Party has an interest
(except proportionately as a shareholder of the corporation); provided, however,
that the 80 percent voting requirement shall not be applicable if either:
(i) The "Continuing Directors" (as hereinafter defined) of the
corporation by at least a majority vote (a) have expressly approved in advance
the acquisition of the outstanding number of Voting Shares that caused such
Related Person to become a Related Person, or (b) have expressly approved such
Business Transaction; or
(ii) The cash or fair market value (as determined by at least
a majority of the Continuing Directors) of the property, securities or other
consideration to be received per share by holders of Voting Shares of the
corporation (other than the Related Person) in the Business Transaction is not
less than the "Highest Purchase Price" (as hereinafter defined) paid by the
Related Person involved in the Business Transaction in acquiring any of its
holdings of the corporation's Voting Shares.
2. For purposes of this Article VIII:
(i) The term "Business Transaction" shall include, without
limitation, (a) any merger, consolidation or plan of exchange of the
corporation, or any entity controlled by or under common control with the
corporation, or any entity controlled by or under common control with the
corporation, with or into any Related Person, or any entity controlled by or
under common control with such Related Person, (b) any merger, consolidation or
plan of exchange of a Related Person, or any entity controlled by or under
common control with such Related Person, with or into the corporation or any
entity controlled by or under common control with the corporation, (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
property and assets of the corporation, to a Related Person, or any entity
controlled by or under common control with such Related Person,
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(d) any purchase, lease, exchange, transfer or other acquisition (in one
transaction or a series of transactions), including without limitation a
mortgage or any other security device, of all or any Substantial Part of the
property and assets of a Related Person or any entity controlled by or under
common control with such Related Person, by the corporation, or any entity
controlled by or under common control with the corporation, (e) any
recapitalization of the corporation that would have the effect of increasing the
voting power of a Related Person, (f) the issuance, sale, exchange or other
disposition of any securities of the corporation, or of any entity controlled by
or under common control with the corporation, to a Related Person by the
corporation or by any entity controlled by or under common control with the
corporation, (g) any liquidation, spinoff, splitoff, splitup or dissolution of
the corporation proposed by or on behalf of a Related Person, and (h) any
agreement, contract or other arrangement providing for any of the transactions
described in this definition of Business Transaction.
(ii) The term "Related Person" shall mean and include (a) any
individual, corporation, association, trust, partnership or other person or
entity (a "Person") which, together with its "Affiliates" (as hereinafter
defined) and "Associates" (as hereinafter defined), "Beneficially Owns" (as
defined in Rule 13d-3 of the General Rules and Regulations under the Securities
Exchange Act of 1934 as in effect at July 12, 1984) 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. Two or more Persons acting in concert
for the purpose of acquiring, holding or disposing of Voting Shares of the
corporation shall be deemed a "Person."
(iii) Without limitation, any share of Voting Shares of the
corporation that any Related Person has the right to acquire at any time
(notwithstanding that Rule 13d-3 deems such shares to be beneficially owned only
if such right may be exercised within 60 days) pursuant to any agreement,
contract, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise, shall be deemed to be Beneficially Owned by
such Related Person and to be outstanding for purposes of subparagraph (ii)
above.
(iv) For the purposes of subparagraph (ii) of paragraph 1 of
this Article VIII, the term "other consideration to be received" shall include,
without limitation, Common Shares or other capital stock of the corporation
retained by its existing stockholders, other than any Related Person or other
Person who is a party to such Business Transaction, in the event of a Business
Transaction in which the corporation is the survivor.
(v) The term "Voting Shares" shall mean all of the outstanding
shares of capital stock of the corporation entitled to vote generally in the
election of directors, considered as one class, and each reference to a
proportion of shares of Voting Shares shall refer to such proportion of the
votes entitled to be cast by such shares.
(vi) The term "Continuing Director" shall mean a director who
was a member of the Board of Directors of the corporation on July 12, 1984;
provided that any person becoming a director subsequent to July 12, 1984 whose
election, or nomination for election by the corporation's shareholders, was
approved by a vote of at least a majority of the Continuing Directors shall be
considered as though he or she were a director on July 12, 1984.
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(vii) The term "Highest Purchase Price" with respect to a
class or series of Voting Shares shall mean the highest amount of consideration
paid by the Related Person for a Voting Share of such class or series at any
time regardless of whether the share was acquired before or after the Related
Person became a Related Person; provided, however, that the Highest Purchase
Price shall be appropriately adjusted to reflect the occurrence of any
reclassification, recapitalization, stock split, reverse stock split or other
readjustment in the number of outstanding Voting Shares of the corporation, or
the declaration of a share dividend thereon. The Highest Purchase Price shall
include any brokerage commissions, transfer taxes and soliciting dealers' fees
paid by a Related Person with respect to the Voting Shares of the corporation
acquired by such Related Person.
(viii) A Related Person shall be deemed to have acquired a
Voting Share of the corporation at the time when such Related Person became the
Beneficial Owner thereof. With respect to the shares owned by Affiliates,
Associates or other Persons whose ownership is attributed to a Related Person
under the foregoing definition of Related Person, if the price paid by such
Related Person for such shares is not determinable by a majority of the
Continuing Directors, the price so paid shall be deemed to be the higher of (a)
the price paid upon the acquisition thereof by the Affiliate, Associate or other
Person or (b) the market price of the shares in question at the time when such
Related Person became the Beneficial Owner thereof.
(ix) The term "Substantial Part" shall mean 10 percent or more
of the fair market value of the total assets of the Person in question, as
reflected on the most recent balance sheet of such Person existing at the time
the shareholders of the corporation would be required to approve or authorize
the Business Transaction involving the assets constituting any such Substantial
Part.
(x) The term "Affiliate," used to indicate a relationship with
a specified Person, shall mean a Person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified.
(xi) The term "Associate," used to indicate a relationship
with a specified Person, shall mean (a) any entity of which such specified
Person 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 has a substantial beneficial
interest or as to which such specified Person 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 of its subsidiaries, 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 an entity controlled by
or under control with the corporation).
3. For the purposes of this Article VIII, a majority 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 that
any Person Beneficially Owns, (ii) whether a Person is an Affiliate or Associate
of another, (iii) whether a Person has an agreement, contract,
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arrangement or understanding with another as to the matters referred to in
subparagraph (2)(i)(h) or (2)(iii) hereof, (iv) the Highest Purchase Price paid
by a Related Person, (v) whether the assets subject to any Business Transaction
constitute a Substantial Part, (vi) whether any Business Transaction is one in
which a Related Person has an interest (except proportionately as a shareholder
of the corporation), and (vii) such other matters with respect to which a
determination is required under this Article VIII.
4. The provisions set forth in this Article VIII may not be
amended, altered, changed or repealed in any respect unless such action is
approved by the affirmative vote of the holders of not less than 80 percent of
the outstanding shares of Voting Shares of the corporation.
ARTICLE IX
No director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for conduct as a director;
provided that this Article IX shall not eliminate the liability of a director
for any act or omission for which such elimination of liability is not permitted
under the Oregon Business Corporation Act. No amendment to the Oregon Business
Corporation Act that further limits the acts or omissions for which elimination
of liability is permitted shall affect the liability of a director for any act
or omission which occurs prior to the effective date of such amendment.
ARTICLE X
This Article X sets forth, the designation, preferences, limitations
and relative rights of a series of No Par Preferred Shares of the corporation as
determined by the board of directors of the corporation pursuant to its
authority under Oregon Revised Statutes 60.134 and Section 3 of Article III of
these Restated Articles of Incorporation.
1. Designation and Amount. The shares of such series shall be
designated as "Series B No Par Preferred Shares" and the number of shares
constituting such series shall be 125,000.
2. Dividends and Distributions.
(i) The holders of shares of Series B No Par Preferred Shares
shall be entitled to receive, when and as declared by the board of directors,
out of funds legally available for the purpose, dividends in an amount per share
equal to 1,000 (the "Adjustment Number") multiplied by the aggregate per share
amount of all cash dividends, and the Adjustment Number multiplied by the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in Common Shares or a subdivision of
the outstanding Common Shares (by reclassification or otherwise), declared on
the Common Shares, without par value, of the corporation (the "Common Shares")
after the first issuance of any share or fraction of a share of Series B No Par
Preferred Shares.
(ii) The corporation shall declare a dividend or distribution
on the Series B No Par Preferred Shares as provided in subparagraph 2(i) at the
same time that it declares a dividend or distribution on the Common Shares
(other than a dividend payable in Common Shares).
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(iii) Dividends shall not be cumulative. Unpaid dividends
shall not bear interest. Dividends paid on the Series B No Par 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.
3. Voting Rights. The holders of Series B No Par Preferred Shares
shall have the following voting rights:
(i) Each Series B No Par Preferred Share shall entitle the
holder thereof to the number of votes equal to the Adjustment Number then in
effect on all matters submitted to a vote of the shareholders of the
corporation.
(ii) Except as otherwise provided herein or by law, the
holders of Series B No Par Preferred Shares and the holders of common shares
shall vote together as one class on all matters submitted to a vote of
shareholders of the corporation.
4. Certain Restrictions.
(i) Whenever dividends or distributions payable on the Series
B No Par Preferred Shares as provided in Section 2 have not been declared or
paid for any fiscal year, until all such dividends and distributions for such
fiscal year on Series B No Par Preferred Shares outstanding shall have been
declared and paid in full, the corporation shall not in such fiscal year:
(a) declare or pay dividends on or make any other
distributions on any shares of stock ranking junior or on a parity (either as to
dividends or upon liquidation, dissolution or winding up) to the Series B No Par
Preferred shares except dividends paid ratably on the Series B No Par Preferred
Shares and all such parity stock on which dividends are payable in proportion to
the total amounts to which the holders of all such shares are then entitled and
dividends or distributions payable in Common Shares;
(b) purchase or otherwise acquire for consideration
any Series B No Par Preferred Shares or any shares of stock ranking on a parity
with the Series B No Par 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 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.
(ii) 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 subparagraph 4(i),
purchase or otherwise acquire such shares at such time and in such manner.
5. Restriction on Issuance of Shares; Reacquired Shares. The
corporation shall not issue any Series B No Par Preferred Shares except upon
exercise of rights (the "Rights") issued
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pursuant to the Rights Agreement dated as of June 21, 2000, between the
corporation and ChaseMellon Shareholder Services, L.L.C., (the "Rights
Agreement"), a copy of which is on file with the secretary of the corporation at
its principal executive office and shall be made available to shareholders of
record without charge upon written request. Any Series B No Par Preferred Shares
purchased or otherwise acquired by the corporation in any manner whatsoever may
be restored to the status of authorized but unissued shares after, the
acquisition thereof. All such shares shall upon any such restoration become
authorized but unissued shares of Preferred Shares and may be reissued as part
of a new series of Preferred Shares to be created by the board of directors,
subject to the conditions and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up.
(i) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the corporation, no distribution shall be made to the holders
of shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B No Par Preferred Shares unless, prior
thereto, the holders of shares of Series B No Par Preferred Shares shall have
received the Adjustment Number multiplied by the per share amount to be
distributed to holders of Common Shares, plus an amount equal to declared and
unpaid dividends and distributions thereon to the date of such payment (the
"Series B Liquidation Preference"). Following the payment of the full amount of
the Series B Liquidation Preference, no additional distributions shall be made
to the holders of shares of Series B No Par Preferred Shares.
(ii) In the event that there are not sufficient assets
available to permit payment in full of the Series B Liquidation Preference and
the liquidation preferences of all other series of Preferred Shares, if any,
which rank senior to or on a parity with the Series B No Par Preferred shares,
then assets shall be distributed first to holders of any series of Preferred
Shares ranking senior to the Series B No Par Preferred Shares to the extent of
their liquidation preferences and such remaining assets shall be distributed
ratably to the holders of Series B No Par Preferred Shares and such parity
shares in proportion to their respective liquidation preferences.
7. Consolidation, Merger, etc. In case the corporation shall
enter into any consolidation, merger, combination or other transaction in which
the Common Shares are exchanged for or changed into other stock or securities,
cash and/or any other property, then in any such case the Series B No Par
Preferred Shares shall at the same time be similarly exchanged or changed in an
amount per share equal to the Adjustment Number multiplied by 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 Common Share is changed or
exchanged.
8. Anti-Dilution, Adjustments to Adjustment Number. In the event
the corporation shall at any time after September 7, 2000 (the "Rights
Declaration Date") (i) declare any dividend on Common Shares payable in shares
of Common Shares, (ii) subdivide the outstanding Common Shares, or (iii) combine
the outstanding Common Shares into a smaller number of shares, then in each such
case the Adjustment Number for all purpose of this Article X shall be adjusted
by multiplying the Adjustment Number then in effect by a fraction, the numerator
of which is the number of Common Shares outstanding immediately after such event
and the denominator of which is the number of Common Shares that were
outstanding immediately prior
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to such event. In the event the corporation shall at any time after the Rights
Declaration Date, fix a record date for the issuance of rights, options or
warrants to all holders of Common Shares entitling them (for a period expiring
within 45 calendar days after such record date) to subscribe for or purchase
Common Shares or securities convertible into Common Shares at a price per Common
Shares (or having a conversion price per share, if a security convertible into
Common Shares) less than the then Current Per Share Market Price (as defined in
Section 11(d) of the Rights Agreement) of the Common Shares on such record date,
then in each such case the Adjustment Number for all purposes of this Article X
shall be adjusted by multiplying the Adjustment Number then in effect by a
fraction, the numerator of which shall be the number of Common Shares
outstanding on such record date plus the number of additional Common Shares to
be offered for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible) and the denominator of
which shall be the number of common Shares outstanding on such record date plus
the number of shares of Common Stock which the aggregate offering price of the
total number of common Shares so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
at such Current Per Share Market Price (as defined in Section 11(d) of the
Rights Agreement). In case such subscription price may be paid in a
consideration part or all of which shall be in a form other than cash, the value
of such consideration shall be as determined in good faith by the board of
directors. Common Shares owned by or held for the account of the corporation
shall not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed. In
the event that such rights, options or warrants are not so issued, the
Adjustment Number shall be readjusted as if such record date had not been fixed;
and to the extent such rights, options or warrants are issued but not exercised
prior to their expiration, the Adjustment Number shall be readjusted to be the
number which would have resulted from the adjustment provided for in this
paragraph 8 if only the rights, options or warrants that were exercised had been
issued.
9. No Redemption. The Series B No Par Preferred Shares shall not
be redeemable at the option of the corporation or any holder thereof.
Notwithstanding the foregoing sentence, the corporation may acquire Series B No
Par Preferred Shares in any other manner permitted by law.
10. Amendment. Subsequent to the Distribution Date (as defined in
the Rights Agreement) these articles of incorporation shall not be further
amended in any manner which, would materially alter or change the preferences,
limitations and relative rights of the Series B No Par Preferred Shares so as to
affect them adversely without the affirmative vote of the holders of a majority
of the outstanding Series B No Par Preferred Shares, voting separately as a
class.
11. Fractional Shares. Series B No Par Preferred Shares may be
issued in fractions of a share in integral multiples of one one-thousandth of a
share, which shall entitle the holder, in proportion to such holders' fractional
shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of Series B
No Par Preferred Shares.
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