EXHIBIT
3.1
CERTIFICATE
OF DOMESTICATION
OF
TEGAL
CORPORATION LIMITED
Tegal
Corporation Limited (the "Company"), a company organized and existing
under the laws of Bermuda, does hereby certify as follows:
FIRST:
The Company was formed on the 20th day of December, 1989 at Hamilton,
Bermuda;
SECOND:
The name of the Company immediately prior to the filing of this Certificate
of Domestication was Tegal Corporation Limited;
THIRD:
The name of the Company under which it is filing a Certificate of Incorporation
is Tegal Corporation;
FOURTH:
The principal place of business of the Company immediately prior to
the
filing of this Certificate of Domestication was Petaluma, California;
and
FIFTH:
A
Certificate of Incorporation of Tegal Corporation is being filed contemporaneously
with this Certificate of Domestication.
IN
WITNESS WHEREOF, the Company has caused this Certificate to be signed
by
David Curtis, its Vice President-Finance and Chief Financial Officer, who is
authorized to sign this Certificate on behalf of the Company, this 1st day
of
September, 1995.
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Tegal
Corporation Limited
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By:
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/s/
David Curtis
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David
Curtis
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CERTIFICATE
OF INCORPORATION
OF
TEGAL
CORPORATION
The
undersigned, a natural person, for the purpose of organizing a corporation
for
conducting
the business and promoting the purposes hereinafter stated, under the provisions
and subject to the requirements of the laws of the State of Delaware
(particularly Chapter 1, Title 9
of
the
Delaware Code and the acts amendatory thereof and supplemental thereto, and
known,
identified and referred to as the "General Corporation Law of the State of
Delaware"),
hereby certifies that:
FIRST: The
name
of the corporation (hereinafter the "Corporation") is
Tegal
Corporation.
SECOND: The
address of the registered office of the Corporation in the State of Delaware
is 32 Loockerman Square, Suite L-100, City of Dover, County of Kent; and the
name
of
the registered agent of the Corporation in the State of Delaware is The
Prentice-Hall Corporation
System, Inc.
THIRD: The
nature of the business and of the purposes to be conducted and promoted
by the Corporation shall be to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
FOURTH: (A) The
total
number of shares of all classes of capital stock which the corporation shall
have authority to issue is Twenty Million (20,000,000) shares, comprised
of Thirteen Million Five Hundred Thousand (13,500,000) shares of Common
Stock
with a par value of One Cent (US $ 0.01) per share (the "Common Stock") and
Six
Million
Five Hundred Thousand (6,500,000) shares of Preferred Stock with a par value
of
One Cent (US $ 0.01) per share (the "Preferred Stock"). Subject to the
preferential rights of the Preferred Stock and such restrictions as may be
imposed by debtholders of the Corporation and its subsidiaries, the holders
of
shares of Common Stock shall be entitled to receive, when and if declared by
the
Board of Directors, out of the assets of the Corporation which
are
by law available therefor, dividends payable either in cash, in property or
in
shares
of
capital stock.
(B) The
Board
of Directors is expressly authorized, subject to the limitations prescribed
by
law and the provisions hereof, to provide for the issuance of all or any shares
of any wholly unissued series of Preferred Stock, each with such designations,
preferences, voting powers (or no voting powers), relative, participating,
optional or other special
rights and privileges and such qualifications, limitations or restrictions
thereof as shall be
stated
in the resolution or resolutions adopted by the Board of Directors to create
such series.
The authority of the Board of Directors with respect to each such series shall
include without
limitation of the foregoing the right to specify the number of shares of each
such series and to authorize and increase or decrease in such number of shares
and the right to provide that the shares of each such series may be (i) subject
to redemption at such time or times
and
at such price or prices; (ii) entitled to receive dividends (which may be
cumulativeor
non-cumulative) at such rates, on such conditions, and at such times, and
payable in preference
to, or in such relation to, the dividends payable on any other class or classes
or any
other
series; (iii) entitled to such rights upon the dissolution of, or upon any
distribution of
the
assets of, the Corporation, (iv) convertible into, or exchangeable for, shares
of any other class or classes of stock, or of any other series of the same
or
any other class or classes of stock of the Corporation at such price or prices
or at such rates of exchange and with
such
adjustments, if any; (v) entitled to the benefit of such limitations, if any,
on
the issuance of additional shares of such series or shares of any other series
of Preferred Stock; or
(vi)
entitled to such other preferences, powers, qualifications, rights and
privileges, all as the
Board
of Directors may deem advisable and as are not inconsistent with the laws of
Delaware
in force from time to time. All preferences, voting powers, relative,
participating, optional or other special rights and privileges, and
qualifications, limitations, or restrictions of the Common Stock are expressly
made subject and subordinate to those that are fixed and those
that may be fixed with respect to any shares of the Preferred
Stock.
(C) Four
Million Three Hundred Fifty-Two Thousand Two Hundred Seventy-Four
(4,352, 274) shares of Preferred Stock are hereby designated "Series A Preferred
Stock," One Thousand (1000) shares of Preferred Stock are hereby designated
"Series
B
Preferred Stock," Eight Hundred Seventy-Six Thousand One Hundred Ninety-One
(876,191)
shares of Preferred Stock are hereby designated "Series C Preferred Stock"
and
Eight
Hundred Eighty-Six Thousand Six Hundred Twenty-Seven (886,627) shares of
Preferred Stock are hereby designated "Series D Preferred Stock," each having
the respective preferences,
voting powers, relative, participating, optional or other special rights and
privileges,
and the qualifications, limitations and restrictions set forth
below:
(i) The
holders of the Series A Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock shall be entitled to receive, out of any
funds legally
available therefor, dividends on each outstanding share of Preferred Stock,
payable when
and
as declared by the Board of Directors. The right to such dividends on the Series
A Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock shall not be
cumulative, and no right shall accrue to holders of Series A Preferred Stock,
Series C Preferred
Stock and Series D Preferred Stock by reason of the fact that dividends on
such
shares
are not declared or paid in any prior year. Dividends, if paid, or if declared
and set apart for payment, must be paid on, or declared and set apart for
payment on all outstanding Series A Preferred Stock, Series C Preferred Stock
and Series D Preferred Stock contemporaneously
and shall be declared and paid pro rata (a) such that the ratio of dividends
being
declared and paid per share of Series A Preferred Stock to dividends being
declared and
paid
per share of Series C Preferred Stock to dividends being declared and paid
per
share
of
Series D Preferred Stock is the same as the ratio of US $2.4304 (the "Series
A
Issue Price")
to US $5.25 (the "Series C Issue Price") to US $5.25 (the "Series D Issue
Price") (as such
prices may be adjusted for stock splits, combinations or similar events with
respect to such series of Preferred Stock) and (b) as among the holders of
each
series based on the number
of
shares of such series so held. No shares of Common Stock shall receive any
dividend
at a rate which is greater than the rate at which dividends are simultaneously
paid in respect
of the Series A Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock
(based on the number of shares of Common Stock into which the Series A
PreferredStock, Series C Preferred Stock and Series D Preferred Stock is
convertible on the date of dividend).
(ii) The
liquidation rights of the Series A Preferred Stock, Series
C
Preferred Stock and Series D Preferred Stock shall be as follows:
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(a) |
In
the event of any liquidation, dissolution or winding
up of this Corporation, whether voluntary or
not, the holders of the Series C Preferred Stock
shall be entitled to receive an amount per share
equal to the Series C Issue Price (as such price
may be adjusted for stock splits, combinations
or similar events with respect to such
series of Preferred Stock) plus all declared and unpaid dividends,
if any,
before any amount shall
be paid to the holders of the Series D Preferred Stock, Series A
Preferred
Stock and Common Stock. If, upon the occurrence of a liquidation,
dissolution or winding up, the assets and surplus funds distributed
among
the holders of
the Series C Preferred Stock shall be insufficient
to permit the payment to such holders of
the full preferential amount then the entire assets
and surplus funds legally available for distribution shall be distributed
ratably among the holders
of the Series C Preferred Stock.
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(b) |
In
the event of any liquidation, dissolution or winding
up of this Corporation, whether voluntary or
not, the holders of the Series D Preferred Stock
shall be entitled to receive an amount per share equal to the Series
D
Issue Price (as such price may be adjusted for stock splits, combinations
or similar events with respect to such
series of Preferred Stock) plus all declared and
unpaid dividends, if any, and the holders of the
Series A Preferred Stock shall be entitled to receive
an amount per share equal to the Series A Issue
Price (as such price may be adjusted for stock
splits, combinations or similar events with respect
to such series of Preferred Stock) plus all declared
and unpaid dividends, if any, before any amount
shall be paid to the holders of the Common
Stock. If, upon the occurrence of a liquidation,
dissolution or winding up, the assets and surplus funds distributed
among
the holders of
the Series D Preferred Stock and Series A Preferred
Stock shall be insufficient to permit the payment
to such holders of the full preferential amount then the entire assets
and
surplus funds legally available for distribution shall be distributed
ratably among the holders of the Series
D Preferred Stock and Series A Preferred Stock
such that the ratio of the assets and surplus funds
being distributed to holders of Series A Preferred
Stock, on a per share basis, to the assets
and surplus funds being distributed to holder
of Series D Preferred Stock, on a per share
basis, is the same as the ratio of the Series
A Issue Price (as such price may be adjusted
for stock splits, combinations or similar events
with respect to such series of Preferred Stock) plus all declared
and
unpaid dividends, if any,
to the Series D Issue Price (as such price may
be adjusted for stock splits, combinations or similar
events with respect to such series of Preferred Stock) plus all declared
and unpaid dividends,
if any.
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(c)
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If,
upon the occurrence of a liquidation, dissolution or winding up,
after the
payment to the
holders of Series C Preferred Stock, Series D Preferred Stock and
Series A
Preferred Stock of the
preferential amount, assets or surplus funds remain
in this Corporation, the holders of Series C Preferred Stock, Series
D
Preferred Stock,
Series A Preferred Stock and the holders of Common Stock shall be
entitled
to share in all such
remaining assets and surplus funds in the same manner as if all shares
of
Series C Preferred Stock,
Series D Preferred Stock and Series A Preferred
Stock had been converted into Common Stock.
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(d)
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For
the purposes of this Article, a liquidation, dissolution
or winding up of the Corporation shall be
deemed to be occasioned by, and to include, the
sale by the Corporation of substantially all of its assets or the
acquisition of the Corporation by another
entity by means of merger or consolidation
resulting in the exchange of the outstanding shares of the Corporation
for
securities or consideration issued, or caused to be issued,
by the acquiring company or its subsidiary.
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(iii) If
on
each December 31, 1996, December 31, 1997, or December
31, 1998 (each of which is referred to as a "Redemption Record Date"), there
shall be any shares of Series A Preferred Stock, Series C Preferred Stock or
Series D Preferred Stock outstanding, a majority of the holders of Series A
Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock then outstanding, voting together as a single
class,
may elect, in accordance with the procedures set forth herein, to require the
Corporation to redeem up to one-third of the shares of Series A Preferred Stock,
Series C Preferred
Stock and Series D Preferred Stock originally issued (as adjusted for stock
splits, combinations or similar events with respect to such series of Preferred
Stock) on a pro rata basis
as
described below. Subject to the foregoing limitation, the Corporation shall
be
required
to redeem shares in accordance with the number of shares which any holder may
and
is
requesting to be redeemed on each Redemption Payment Date (as defined below)
pursuant to an Initiating Notice or a Subsequent Notice (each as defined below);
provided, however,
that any shares which are properly requested to be redeemed but are unable
to be
redeemed
in any particular year due to the limitations set forth herein may be redeemed
pursuant
to written notice given on a subsequent Redemption Record Date to the extent
such redemption may be accomplished within those limitations. The applicable
redemption price payable
on each Redemption Payment Date shall be (a) the Series A Issue Price (as such
price may be adjusted for stock splits, combinations or similar events with
respect to the Series
A
Preferred Stock) plus all declared and unpaid dividends to the Redemption
Payment Date,
if
any, with respect to each share of Series A Preferred Stock (the "Series A
Redemption
Price"), (b) the Series C Issue Price (as such price may be adjusted for stock
splits, combinations or similar events with respect to the Series C Preferred
Stock) plus all declared
and unpaid dividends to the Redemption Payment Date, if any, with respect to
each share
of
Series C Preferred Stock (the "Series C Redemption Price") and (c) the Series
D
Issue
Price (as such price may be adjusted for stock splits, combinations or similar
events with respect to the Series D Preferred Stock) plus all declared and
unpaid dividends to the Redemption
Payment Date, if any, with respect to each share of Series D Preferred Stock
(the
"Series D Redemption Price"). Any shares redeemed pursuant to this provision
shall be redeemed on a pro rata basis, such that the ratio of (x) the aggregate
amount of cash used to redeem
shares of Series A Preferred Stock to (y) the aggregate amount of cash used
to
redeem
shares of Series C Preferred Stock to (z) the aggregate amount of cash used
to
redeem
shares of Series D Preferred Stock is the same as the ratio of (xx) the number
of shares
of
Series A Preferred Stock then outstanding multiplied by the Series A Redemption
Price
to
(yy) the number of shares of Series C Preferred Stock then outstanding
multiplied by the
Series C Redemption Price to (zz) the number of shares of Series D Preferred
Stock then outstanding
multiplied by the Series D Redemption Price.
(iv) Prior
to
each Redemption Payment Date, the Corporation shall deposit with a bank having
an aggregate capital and surplus in excess of US $50,000,000,
as a trust fund for the redemption of the Series A Preferred Stock, Series
C
Preferred
Stock and Series D Preferred Stock (the "Redemption Fund"), the amount
required for
redemption of the Series A Preferred Stock, Series C Preferred Stock and Series
D Preferred
Stock hereunder together with irrevocable instructions and authority to pay
the
Series
A
Redemption Price, the Series C Redemption Price and the Series D Redemption
Price
to
the holders of Series A Preferred Stock, Series C Preferred Stock and Series
D
Preferred
Stock, upon surrender of their stock certificates on or after each Redemption
Payment
Date. Any money so deposited which is unclaimed by a holder of Series A
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock for one
year after a Redemption
Payment Date shall be returned to the Corporation, after which holders of Series
A Preferred Stock, Series C Preferred Stock and Series D Preferred Stock who
have requested
redemption shall be entitled to receive payment of the Series A Redemption
Price, the
Series C Redemption Price and the Series D Redemption Price directly from the
Corporation.
After all shares of Series A Preferred Stock, Series C Preferred Stock and
Series
D
Preferred Stock requested to be redeemed have been converted or redeemed, any
money remaining in the Redemption Fund shall be returned to the
Corporation.
(v) A
majority of the holders of Series A Preferred Stock, Series
C
Preferred Stock and Series D Preferred Stock then outstanding, voting together
as a single
class, may make an election pursuant to Section (C)(iii) of this Article in
a
notice (an "Initiating
Notice") to the Corporation within 60 days of each Redemption Record Date
which
shall be deemed delivered upon personal delivery of 14 days after deposit in
the
mail, registered or certified, addressed to the Corporation. Within 14 days
of
receipt of the Initiating
Notice, the Corporation shall mail by first class, postage prepaid, to each
holder of record
of
Series A Preferred Stock, Series C Preferred Stock and Series D Preferred Stock,
at such holders' post office address last shown on the records of the
Corporation, a written notice
advising such holder of the fact that a majority of the holders of the Series
A
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock then
outstanding, voting
together as a single class, have made the election described herein, specifying
the date on which the redemption shall be made, which date shall be within
60
days of the delivery of the
Initiating Notice (a "Redemption Payment Date") and advising such holder that
it
must notify the Corporation at least 10 days prior to the Redemption Payment
Date if such holder wishes to have its shares redeemed thereon (a "Subsequent
Notice"), provided that a Subsequent Notice shall not be required from any
holder that was a party to the Initiating Notice. On or after each Redemption
Payment Date, each holder shall surrender his certificate for the number of
shares to be redeemed to the Corporation at the place specified by
the
Corporation. From and after each Redemption Payment Date, unless there have
been
a default in the payment of the Series A Redemption Price, the Series C
Redemption Price or the
Series D Redemption Price, all rights of holders of Series A Preferred Stock,
Series C Preferred
Stock and Series D Preferred Stock requesting redemption (except the right
to
receive payment of the Series A Redemption Price, the Series C Redemption Price
or the Series D Redemption Price or surrender of their certificates) shall
cease
with respect to the shares redeemed. If less than all of the shares represented
by a surrendered certificate are redeemed,
a new certificate shall forthwith be issued for the unredeemed
shares.
(vi) The
Corporation shall not be required to expend funds for
the
redemption of Series A Preferred Stock, Series C Preferred Stock and Series
D Preferred
Stock to the extent such expenditure would violate any law in force in Delaware
from
time
to time and, specifically, the Delaware General Corporation
Law.
(D) Except
as
otherwise required by law, the holders of Series A Preferred Stock, Series
C
Preferred Stock and Series D Preferred Stock and the holders of Common
Stock shall be entitled to notice of any stockholders' meeting and to vote
upon
any matter submitted to the stockholders for a vote, other than the election
of
Directors, as follows: (a) the holders of Series A Preferred Stock, Series
C
Preferred Stock and Series D Preferred Stock shall have one vote for each full
share of Common Stock into which their respective
shares of Series A Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock are convertible in the aggregate on the record date for the
vote
and (b) the holders of Common Stock shall have one vote per share of Common
Stock. For so long as at least 50% of the shares of the Corporation's Series
A
Preferred Stock issued with regard to the original 14,400,000 Series A Preferred
Stock issued by the Corporation's Bermuda predecessor
remains outstanding, the holders of shares of Series A Preferred Stock, voting
as a class, shall be entitled to elect two (2) directors; the holders of shares
of Series C Preferred Stock and Series D Preferred Stock, voting together as
a
class, shall be entitled to elect one (1)
director; the holders of shares of Common Stock, voting as a class, shall be
entitled to elect
one
(1) director; and the remaining director or directors shall be elected by the
holders of
Series
A Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and
Common
Stock, voting together on an as-if-converted basis.
(E) The
Series A Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
shall be convertible into Common Stock of this Corporation as follows:
(i) For
purposes of this Paragraph (E) of Article Fourth the following
definitions shall apply:
"Common
Stock Equivalents"
shall
mean Convertible Securities
and rights entitling the holder thereof to receive
directly, or indirectly, additional shares of Common
Stock without the payment of any consideration by
such
holder for such additional shares of Common Stock
or
Common Stock Equivalents.
"Common
Stock Outstanding"
shall
mean the aggregate of
all
Common Stock outstanding and all Common Stock issuable
upon exercise of all outstanding Options and conversion
of all outstanding Convertible Securities.
"Conversion
Price"
shall
mean the price, determined pursuant
to this Paragraph (E), at which shares of Common
Stock shall be deliverable upon conversion of Series
A
Preferred Stock, Series C Preferred Stock and Series
D
Preferred Stock, as applicable.
"Convertible
Securities"
shall
mean any indebtedness or shares
of
stock convertible into or exchangeable for Common Stock, including Series A
Preferred Stock, Series
C
Preferred Stock and Series D Preferred Stock.
"Current
Conversion Price"
shall
mean the applicable Conversion Price immediately before the occurrence of
any
event, which, pursuant to Section (E)(iv) below causes
an
adjustment to the applicable Conversion Price.
"Issuance
Date"
shall
mean for the Series A Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock the first date on which
the Corporation issues any shares of such Preferred Stock.
"Options"
shall mean any rights, warrants or options to subscribe
for or purchase Common Stock or Convertible Securities.
(ii) Each
holder of the Series A Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock may, at any time, convert any or all of
such
Preferred
Stock into fully-paid and non-assessable shares of Common Stock at the
applicable Conversion
Price. Each share of Series A Preferred Stock shall be convertible into the
number of shares of Common Stock that results from dividing the Conversion
Price
in effect at
the
time of conversion for Series A Preferred Stock into US $2.4304 for each share
of Series
A
Preferred Stock; The Conversion Price of the Series A Preferred Stock shall
initially be US $2.4304 per share of Common Stock. Each share of Series C
Preferred Stock shall be convertible into the number of shares of Common Stock
that results from dividing the Conversion Price in effect at the tune of
conversion for Series C Preferred Stock into US $5.25
for
each share of Series C Preferred Stock; the Conversion Price of the Series
C
Preferred
Stock shall initially be US $5.25 per share of Common Stock. Each share of
Series
D
Preferred Stock shall be convertible into the number of shares of Common Stock
that results from dividing the Conversion Price in effect at the time of
conversion for Series
D
Preferred Stock into US $5.25 for each share of Series D Preferred Stock; the
Conversion Price of the Series D Preferred Stock shall initially be US $5.25
per
share of Common
Stock. The initial applicable Conversion Price shall be subject to adjustment
from time
to
time in certain instances as hereinafter provided. No adjustments with respect
to conversion
shall be made on account of any dividends that may be declared but unpaid on
the
Preferred
Stock surrendered for conversion, but no dividends shall thereafter be paid
on
the Common
Stock unless such unpaid dividends have first have paid to the holders entitled
to payment
at the time of conversion of the Preferred Stock.
(iii) Before
any holder of Series A Preferred Stock, Series C Preferred Stock and Series
D
Preferred Stock shall be entitled to convert the same into Common Stock, he
shall surrender the certificate or certificates therefor, duly endorsed, to
the
office of the Corporation or any transfer agent for such Preferred Stock and
shall give written
notice to the Corporation at such office that he elects to convert the same.
The
Corporation shall, as soon as practicable thereafter, issue and deliver at
such
office to such holder of Preferred Stock, or to his nominee or nominees,
certificates for the number of full shares of Common Stock to which he shall
be
entitled, together with cash in lieu of any fraction
of a share as hereinafter provided, and, if less than all of the shares of
Preferred Stock
represented by such certificate are converted, a certificate representing the
shares of Preferred Stock not converted. Such conversion shall be deemed to
have
been made as of the
date
of such surrender of the certificate for the Preferred Stock to be converted,
and the person
or
persons entitled to receive the Common Stock issuable upon such conversion
shall
be
treated for all purposes as the record holder or holders of such Common Stock
on
such date.
If
the conversion is in connection with an offer of securities registered pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), the conversion
may, at the option of
any
holder tendering Preferred Stock for conversion, be conditioned upon the closing
of the sale of securities pursuant to such offering, in which event the
person(s) entitled to receive
the Common Stock issuable upon such conversion of the Preferred Stock shall
not
be deemed to have converted such Preferred Stock until immediately prior to
the
closing of such sale
of
securities.
(iv) Subject
to Section (E), the applicable Conversion Price in effect
from time to time for Series A Preferred Stock, Series C Preferred Stock and
Series D Preferred
Stock shall be subject to adjustment in certain cases as follows:
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(a) |
Subject
to Section (E)(xiv) with respect to the Series
A Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock,
in case the Corporation
shall at any time after the Issuance Date
with respect to the Series A Preferred Stock issue
or sell any Common Stock without consideration,
or for a consideration per share less
than the applicable Current Conversion Price for
the Series A Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock, the,
and thereafter successively upon each such issuance
or sale, the applicable Current Conversion Price for such Series
A
Preferred Stock,
Series C Preferred Stock and Series D Preferred
Stock shall simultaneously with such issuance or sale be adjusted
to a
Conversion Price (calculated to the nearest cent) determined by
dividing
(A) an amount equal to (i) the total number
of shares of Common Stock Outstanding when the applicable Current
Conversion Price became
effective multiplied by the applicable Current
Conversion Price, plus (ii) the aggregate of the amount of all
consideration, if any, received by the Corporation for the issuance
or sale
of Common Stock since the applicable Current
Conversion Price became effective, by (B)
the total number of shares of Common Stock Outstanding immediately
after
such issuance or sale;
provided, however, that the applicable Conversion Price shall at
no time
exceed US $5.25
for the Series C Preferred Stock and Series
D Preferred Stock and US $2.4304 for the Series
A Preferred Stock (as adjusted for stock splits,
combinations and similar events). For the purposes of this provision
the
following shall apply:
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(1)
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In
the case of the issuance or sale of additional
Common Stock for cash, the consideration received by the Corporation
therefor
shall be deemed to be the amount of cash received by the Corporation
for
such
shares (or, if such shares are offered by
the Corporation for subscription, the subscription
price, or, if such shares are sold
to underwriters or dealers for public offering
without a subscription offering, the
initial public offering price), without deducting
therefrom any compensation or discount
paid or allowed to underwriters or dealers
or others performing similar services or for any expenses incurred
in
connection therewith.
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(2)
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In
case of the issuance (otherwise than upon conversion or exchange
of
Convertible Securities) or sale of additional
Common Stock, Options or Convertible Securities for a consideration
other
than cash or a consideration a part of which
shall be other than cash, the fair value
of such consideration as determined by
the Board of Directors of the Corporation
in the good faith exercise of its
business judgment, irrespective of the accounting treatment thereof,
shall
be deemed
to be the value, for purposes of this
Paragraph (E), of the consideration other than cash received by the
Corporation for such securities.
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(3)
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In
case the Corporation shall in any manner
issue or grant any options or any Convertible
Securities, the total maximum number
of shares of Common Stock issuable
upon the exercise of such Options or
upon conversion or exchange of the total
maximum amount of such Convertible Securities
at the time such Convertible Securities first became convertible
or
exchangeable shall (as of the date of issue or
grant of such Options or, in the case of the
issue or sale of Convertible Securities other
than where the same are issuable upon
the exercise of Options, as of the date of such issue or sale be
deemed to
be issued
and to be outstanding for the purpose of this Section (E)(iv) and
to have
been
issued for the sum of the amount (if any)
paid for such Options or Convertible Securities
and the minimum amount (if any)
payable upon the exercise of such Options
or upon conversion or exchange of such
Convertible Securities at the time such
Convertible Securities first become convertible or exchangeable;
provided
that, subject
to the provisions of Section (E)(v) no further adjustments of the
applicable Conversion
Price shall be made upon the actual
issuance of any such Common Stock or
Convertible Securities or upon the conversion or exchange of any
such
Convertible
Securities.
|
(v) If
the
purchase price provided for in any Option referred to
in
subsection (E)(iv)(a)(3), or the rate at which any Convertible Securities
referred to in subsection
E(iv)(a)(3) are convertible into or exchangeable for shares of Common Stock
shall change
at
any time (other than under or by reason of provisions designed to protect
against dilution), the applicable Current Conversion Price for Series A
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock, as the
case may be, in effect at the time of such event shall forthwith be readjusted
to the applicable Conversion Price that would have been in
effect
at such time had such Options or Convertible Securities still outstanding
provided for
such
changed purchased price, additional consideration or conversion rate, as the
case may
be,
at the time initially granted, issued or sold. If the purchase price provided
for in any
such
Option referred to in subsection E(iv)(a)(3) , or the additional consideration
(if any) payable
upon the conversion or exchange of any Convertible Securities referred to in
subsection E(iv)(a)(3), or the rate at which any Convertible Securities referred
to in subsection
E(iv)(a)(3) are convertible into or exchangeable for shares of Common Stock
shall be
reduced at any time under or by reason of provisions with respect thereto
designed to protect against dilution, then in case of the delivery of shares
of
Common Stock upon the exercise of any such Option or upon conversion or exchange
of any such Convertible Security, the applicable Current Conversion Price for
Series A Preferred Stock, Series C Preferred
Stock or Series D Preferred Stock, as the case may be, then in effect hereunder
shall,
upon issuance of such shares of Common Stock, be adjusted to such amount as
would have
obtained had such Option or Convertible Security never been issued and had
adjustments been made only upon the issuance of the shares of Common Stock
delivered as aforesaid
and for the consideration actually received for such Option or Convertible
Security and the Common Stock.
(vi) In
the
event of the termination or expiration of any right to purchase Common Stock
under any Option or of any right to convert or exchange Convertible
Securities, the applicable Current Conversion Price for Series A Preferred
Stock, Series
C
Preferred Stock or Series D Preferred Stock, as the case may be, shall, upon
such termination,
be changed to the applicable Conversion Price that would have been in effect
at
the
time
of such expiration or termination had such Option or Convertible Security,
to
the extent
outstanding immediately prior to such expiration or termination never been
issued, and the
shares of Common Stock issuable thereunder shall no longer be deemed to be
Common Stock
Outstanding.
(vii) If
the
Corporation should at any time or from time to time
after the Issuance Date with respect to the Series D Preferred Stock fix a
record date for the effectuation of a split or subdivision of the outstanding
shares of Common Stock or the determination
of holders of Common Stock entitled to receive a dividend or other distribution
payable
in additional shares of Common Stock or Common Stock Equivalents, then following
such
record date (or the date of such dividend distribution, split or subdivision
if
no record date is fixed) the applicable Conversion Price for Series A Preferred
Stock, Series C Preferred
Stock or Series D Preferred Stock, as the case may be, shall be appropriately
adjusted
so that the number of shares of Common Stock issuable on conversion of each
share of
Series
A Preferred Stock, Series C Preferred Stock and Series D Preferred Stock shall
be adjusted
in proportion to such change in the number of outstanding shares of Common
Stock
(including for this purpose, Common Stock Equivalents) determined in accordance
with Section
(e)(ix).
(viii) If
the
Corporation shall declare a distribution payable in securities
of other persons, evidences of indebtedness issued by the Corporation or other
persons' assets (excluding cash dividends) or options or rights not referred
to
in subsection E(iv)(a)(3), then, in each such case for the purpose of this
Section (E)(viii), the holders of Series
A
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock shall
be
entitled
to a proportionate share of any such distribution as though they were the
holders of the number of shares of Common Stock of this Corporation into which
their shares of Series
A
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock are
convertible
as of the record date fixed for the determination of the holders of Common
Stock
of this Corporation entitled to receive such distribution.
(ix) If
at any
time or from time to time there shall be a recapitalization
of the Common Stock (other than a subdivision, combination or merger or a sale
of assets transaction provided for elsewhere in this Paragraph (E)) provision
shall be made so that the holders of Series A Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock shall thereafter be entitled to
receive upon conversion of shares of Series A Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock, as the case may be, the number
of
shares of stock or other securities or property of the Corporation or otherwise,
to which a holder of Common Stock deliverable upon conversion would have been
entitled on
such
recapitalization. In any such case appropriate adjustment shall be made in
the
application
of the provisions of this Paragraph (E) with respect to the rights of the
holders of Series
A
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock after
the
recapitalization
to the end that the provisions of this Paragraph (E) (including adjustment
of
the applicable Conversion Price then in effect and the number of shares issuable
upon conversion
of shares of Series A Preferred Stock, Series C Preferred Stock and Series
D
Preferred
Stock) shall be applicable after that event as nearly equivalent as may be
practicable,
(x) The
above
provisions of this Paragraph (E) shall similarly
apply to successive issuances, changes, sales, dividends or other distributions,
subdivisions and combinations on or of the Common Stock after the applicable
Issuance Date.
(xi) Upon
the
occurrence of any event not specifically denominated
in this Paragraph (E) as altering the applicable Conversion Price that, in
the
reasonable exercise of the business judgment of the Board of Directors of this
Corporation requires, on equitable principles, the alteration of the applicable
Conversion Price, the applicable Conversion Price will be equitably altered,
provided that in no such event other than
a
reverse stock split shall the applicable Conversion Price be increased. Any
alteration made to the applicable Conversion Price pursuant to this Section
(E)(xi) shall be made ratably
among the Series A Preferred Stock, the Series C Preferred Stock and the Series
D Preferred
Stock.
(xii) The
Corporation will not, by amendment of Bylaws or Certificate
of Incorporation, or through any reorganization, recapitalization, transfer
of
assets, consolidation, merger, dissolution, issue or sale of securities or
any
other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to
be
observed
or performed hereunder by the Corporation, but will at all times in good faith
assist in
the
carrying out of all the provisions of this Paragraph (E) and in the taking
of
all such action
as
may be necessary or appropriate in order to protect the conversion rights of
the
holders
of Series A Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock against
impairment.
(xiii) The
Corporation shall at all times reserve and keep available
out of its authorized but unissued Common Stock the full number of shares of
Common Stock deliverable upon conversion of all of the then outstanding
Preferred Stock and
shall, at its own expense, take all such actions and obtain all such permits
and
orders as may
be
necessary to enable this Corporation lawfully to issue such Common Stock upon
the conversion of such Preferred Stock.
(xiv) Notwithstanding
anything in this Paragraph (E) to the contrary,
the applicable Conversion Price shall not be adjusted by virtue of (a) the
conversion
of shares of Series A Preferred Stock, Series C Preferred Stock and Series
D
Preferred
Stock into shares of Common Stock, (b) the repurchase of shares from this
Corporation's
employees, consultants, officers or directors at such person's cost (or at
such
other
price as may be agreed to by this Corporation's Board of Directors), (c) the
issuance of shares of Common Stock issuable in connection with warrants issued
pursuant to a warrant which
provides for the issuance of Fifteen Thousand (15,000) shares of Common Stock
upon exercise
of such warrant with an exercise price of US $3.15 per share, or (d) the
issuance and sale of, or the grant of options to purchase, an aggregate of
not
more than One Million Six
Hundred Thousand (1,600,000) shares of Common Stock to employees, advisors,
directors, officers or consultants of the Corporation and its subsidiaries
at a
price which is less than the applicable Conversion Price for Series A Preferred
Stock, Series C Preferred Stock,
or
Series D Preferred Stock, as the case may be, at the time of such issuance
or
sale (all
as
determined in accordance with this Paragraph (E)) as may be approved by the
Board of Directors, and none of such shares shall be included in any manner
in
the computation from
time
to time of the applicable Conversion Price for Series A Preferred Stock, Series
C Preferred
Stock or Series D Preferred Stock, as the case may be, under subsection (E)(iv)
or in
Common
Stock outstanding for purposes of such computation.
(xv) No
fractional shares shall be issued upon conversion of shares
of
Preferred Stock and the number of shares of Common Stock to be issued shall
be
rounded up to the nearest whole share determined on the basis of the total
number of shares of
Preferred Stock the holder is at the time converting into Common Stock and
the
aggregate number of shares of Common Stock (including the aggregation of all
fractional shares) issuable
upon such aggregate conversion.
(xvi) Upon
the
occurrence of each adjustment or re-adjustment of
a
Conversion Price pursuant to this Paragraph (E), the Corporation, at its expense
upon request
by any holder of Preferred Stock shall compute such adjustment or re-adjustment
in accordance with the terms hereof and prepare and furnish to each holder
of
Series A Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
a certificate setting forth such adjustment or re-adjustment and showing, in
detail the facts upon which such adjustment
or re-adjustment is based. The Corporation shall, upon the written request
at
any time
of
any holder of Series A Preferred Stock, Series C Preferred Stock or Series
D
Preferred
Stock, furnish or cause to be furnished to such holder a like certificate
setting forth (a) such adjustment and re-adjustment, (b) the Current Conversion
Price at the time in effect and
(c)
the number of shares of Common Stock and the amount, if any, of other property
which
at
the time would be received upon the conversion of a share of any series of
Series A Preferred
Stock, Series C Preferred Stock or Series D Preferred Stock.
(F) Immediately
upon any public offering of the Corporation's Common Stock pursuant to a
registration statement on Form S-l under the Securities Act at a per
share
price of not less than US $18.20 (equitably adjusted for any stock split,
combination or similar event) with an aggregate price to the public greater
than
US $15,000,000
each share of Series A Preferred Stock, Series C Preferred Stock and Series
D
Preferred
Stock shall automatically be converted into shares of Common Stock at the
applicable
Conversion Price for such series then in effect. In addition, each share of
Series A Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
shall automatically
be converted into shares of Common Stock at the applicable Conversion Price
for
such
series then in effect immediately preceding the closing or record date of any
liquidation,
dissolution or winding-up of the Corporation, including any deemed liquidation
as
described in Paragraph (C) if the per share distribution is not less than US
$18.20 (equitably
adjusted for any stock split, combination or similar event) on and after said
conversion
date, notwithstanding that any certificates for the shares of Series A Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock shall not have
been
surrendered for conversion, the shares of Series A Preferred Stock, Series
C
Preferred Stock and
Series D Preferred Stock evidenced thereby shall be deemed to be no longer
outstanding, and
all
rights with respect thereto shall forthwith cease and terminate, except only
the
rights of the holder (i) to receive the shares of Common Stock to which he
shall
be entitled upon conversion thereof, (ii) to receive the amount of cash payable
in respect of any fractional share of Common Stock to which he shall be
entitled, and (iii) with respect to dividends declared
but unpaid on the Series A Preferred Stock, Series C Preferred Stock and Series
D Preferred Stock prior to such conversion date. In the event that any holder
of
Series A Preferred
Stock, Series C Preferred Stock or Series D Preferred Stock presents such
holder's certificate therefor for surrender to the Corporation or its transfer
agent upon such conversion, a certificate for the number of shares of Common
Stock into which the shares of Series
A
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock
surrendered were
convertible on such conversion date promptly will be issued and delivered to
such holder.
(G) In
addition to any other rights provided by law, so long as fifty percent (50%)
of
the authorized shares of Series A Preferred Stock, Series C Preferred Stock
and
Series D Preferred Stock shall be outstanding, the Corporation shall not,
without first obtaining the affirmative vote or written consent of the holders
of more than sixty-six and two-thirds percent (66 ⅔%)
of the then outstanding shares of the Series A Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock, voting together as a single class
(provided that to the extent the rights of holders of shares of any such series
of Preferred Stock are adversely affected by any change or event described
in
subsections (i), (ii) or (iii) below, the Corporation shall not make any such
change or allow any such event to occur without first obtaining the affirmative
vote or written consent of the holders of more than sixty-six and two-thirds
percent (66 ⅔%)
of the then outstanding shares of such series of Preferred Stock, voting as
a
single series):
|
(i) |
amend
or repeal any provision of, or add any provision to,
the Corporation's Bylaws or Certificate of
Incorporation;
|
|
(ii) |
authorize
or issue shares of any class or series of stock not
authorized herein having any preference or priority as
to dividends, redemptions or distribution of assets superior
to or on a parity with any such preference or priority of the Series
A
Preferred Stock, Series C Preferred
Stock or Series D Preferred Stock or which in any manner adversely
affects
the rights of the holders of shares
of Series A Preferred Stock, Series C Preferred Stock
or Series D Preferred Stock; authorize or issue shares
of stock of any class or series or any bonds, debentures,
notes or other obligations convertible into or exchangeable
for, or having options rights to purchase, any shares of stock of
this
Corporation having any preference or priority as to dividends or
assets
superior to or on a parity with any such preference or priority of
the
Series A Preferred Stock, Series C Preferred Stock or
Series D Preferred Stock; or authorize or issue shares of
stock of any class or series having voting rights other than
voting rights required by law;
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|
(iii) |
reclassify
any class or series of any Common Stock into shares having any preference
or priority as to dividends or
assets superior to or on a parity with any such preference
or priority of Series A Preferred Stock, Series
C Preferred Stock or Series D Preferred
Stock.
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|
(iv) |
except
as provided in Sections (C)(vi) or (C)(ix) apply any
of its assets to the redemption, retirement, purchase or
acquisition, directly or indirectly, through subsidiaries or
otherwise,of any shares of any class of Common Stock, except from
employees, advisors, officers, directors
and consultants of, and persons performing services
for the Corporation or its subsidiaries on terms approved by the
board of
directors upon termination of employment
or association;
|
|
(v) |
(a)
sell, lease, convey or otherwise dispose of or transfer all
or a substantial portion of its assets, property or business,
or (b) merge into or consolidate with any other company (other than
a
wholly owned subsidiary of the Corporation);
|
|
(vi) |
pay
any dividend on the outstanding shares of Common Stock;
or
|
|
(vii) |
dissolve,
liquidate or wind up the affairs of the Corporation.
|
(H) The
holders of the Series B Preferred Stock shall not be entitled to any dividends
on the shares of Series B Preferred Stock. In the event of any liquidation,
dissolution or winding up of this Corporation, whether voluntary or not, the
holders of the Series B Preferred Stock shall be entitled to receive, before
any
amount shall be paid to the holders
of the Common Stock or any other series of Preferred Stock, an amount per share
equal
to
US $5,840 (the "Redemption Price"). If, upon the occurrence of a liquidation,
dissolution or winding up, the assets and surplus funds distributed among the
holders of the Series B Preferred Stock shall be insufficient to permit the
payment to such holders of the full
preferential amount then the entire assets and surplus funds legally available
for distribution
shall be distributed rateably among the holders of the Series B Preferred Stock.
If, upon the occurrence of a liquidation, dissolution or winding up, after
the
payment to the holders
of Series B Preferred Stock of the preferential amount, assets or surplus funds
remain in
this
Corporation, the holders of the Series A Preferred Stock Series C Preferred
Stock, Series
D
Preferred Stock and Common Stock shall be entitled to such liquidation rights
as
are set forth in Section (C)(iii) above. Without the consent of the holders
of a
majority of the outstanding shares of Series B Preferred Stock and so long
as
the Series B Preferred Stock
remains outstanding, the Corporation shall not issue shares of any class of
capital stock having
a
liquidation preference senior to or pari
passu with
the
Series B Preferred Stock. Except
as
otherwise required by law, the holders of Series B Preferred Stock shall not
be
entitled
to any voting rights with respect to the Series B Preferred Stock.
(I) Upon
ten
(10) days prior written notice to the holder(s) of the Series B Preferred Stock,
the Corporation shall be entitled to redeem at any time all or any portion
of the outstanding shares of the Series B Preferred Stock upon payment to the
holder(s) of such shares of an amount equal to the Redemption Price per share
multiplied by the number of shares of Series B Preferred Stock to be redeemed.
If there shall be any shares of Series B Preferred Stock outstanding on October
31, 1997 (the "Mandatory Redemption Date"), the Corporation shall redeem any
and
all outstanding shares of Series B Preferred Stock in consideration for the
payment of the Redemption Price with respect to such
shares of Series B Preferred Stock; provided,
however,
that the Corporation shall not be required
to expend funds for the redemption of Series B Preferred Stock to the extent
such expenditure would violate any applicable provision of Delaware law or
the
relevant law of another jurisdiction. In such event, the Corporation shall
redeem such shares as soon as possible
to the extent that such redemption may be accomplished without violating any
such law. On or after the Mandatory Redemption Date, each holder shall surrender
his certificate for
the
shares of Series B Preferred Stock redeemed by the Corporation and such other
documents as the Corporation may reasonably request at the place specified
by
the Corporation. Upon such surrender, the Corporation shall pay such holder
the
Redemption Price with respect to such shares. From and after the Mandatory
Redemption Date, unless there shall have been a default in the payment of the
Redemption Price, all rights of holders of Series B Preferred Stock (except
the
right to receive payment of the Redemption Price on surrender
of their certificates) shall cease.
(J) In
the
event of any dissolution, liquidation or winding-up of the affairs
of the Corporation after distribution in full of the preferential amounts,
if
any, to be distributed
to the holders of shares of the Preferred Stock, holders of Common Stock shall
be entitled,
unless otherwise provided by law or these By-Laws, including any certificate
of
designations for a series of Preferred Stock, to receive all of the remaining
assets of the Corporation
of whatever kind available for distribution to Stockholders ratably in
proportion to
the
number of shares of Common Stock held by them respectively.
(K) All
shares of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series D Preferred Stock which shall have been
redeemed or converted pursuant to the provisions contained herein shall be
cancelled and not reissued as
Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series
D Preferred
Stock, as the case may be, but shall have the status of authorized but not
issued shares
of
Preferred Stock.
FIFTH:
The name and the mailing address of the incorporator are as
follows:
|
David
Curtis
|
2201
South McDowell Boulevard
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Petaluma,
California 94953-6020
SIXTH:
The Corporation is to have perpetual existence.
SEVENTH:
The personal liability of the directors of the Corporation is hereby
eliminated
to the fullest extent permitted by paragraph (7) of subsection (b) of Section
102 of the
General Corporation Law of the State of Delaware, as the same may be amended
and
supplemented.
EIGHTH:
The Corporation shall, to the fullest extent permitted by Section 145 of the
General
Corporation Law of the State of Delaware, as the same may be amended and
supplemented,
indemnify any and all persons whom it shall have power to indemnify under
said
section from and against any and all of the expenses, liabilities or other
matters referred to
in or
covered by said section, and the indemnification provided for herein shall
not
be deemed
exclusive of any other rights to which those indemnified may be entitled under
any By-Law,
agreement, vote of stockholders or disinterested directors or otherwise, both
as
to action
in
his official capacity and as to action in another capacity while holding such
office, and
shall
continue as to a person who has ceased to be a director, officer, employee
or
agent and shall inure to the benefit of the heirs, executors and administrators
of such person.
NINTH:
From
time to time any of the provisions of this certificate of incorporation may
be
amended, altered or repealed, and other provisions authorized by the laws of
the
State
of
Delaware at the time in force may be added or inserted in the manner and at
the
time prescribed by said laws, and all rights at any time conferred upon the
stockholders of the
Corporation by this certificate of incorporation are granted subject to the
provisions of this
Article NINTH.
Signed
on
September 1, 1995.
|
/s/
David Curtis
|
|
David
Curtis, Incorporator
|
|
|
STATE
OF DELAWARE
|
|
|
SECRETARY
OF STATE
|
|
|
DIVISION
OF CORPORATIONS
|
|
|
FILED
03:30 PM 10/16/1995
|
|
|
950237895
- 2545851
|
CERTIFICATE
OF CORRECTION
TO
THE
CERTIFICATE
OF INCORPORATION
OF
TEGAL
CORPORATION
Tegal
Corporation (the "Corporation"), a corporation organized and existing under
and
by
virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
1. The
name
of the Corporation is Tegal Corporation.
2. The
Certificate of Incorporation of the Corporation was filed with the Secretary
of State of the State of Delaware on September 20, 1995 and said Certificate
of
Incorporation
requires correction as permitted by Section (f) of Section 103 of the General
Corporation
Law of the State of Delaware.
3. The
Certificate of Incorporation was filed with a Certificate of Domestication
domesticating
Tegal Corporation Limited, a Bermuda company, in Delaware. The domestication
of Tegal Corporation Limited was effected pursuant to a Plan of Reorganization
of Tegal Corporation Limited which, in addition to the domestication of
Tegal
Corporation Limited in Delaware, provided for a 1-for 7
reverse
split of the Corporation's
stock to be effective upon the domestication of the Corporation in Delaware.
The
inaccuracy or defect of said Certificate of Incorporation to be corrected is
that Article Fourth
of
said Certificate of Incorporation inadvertently omitted language implementing
the reverse
stock split which had been authorized by the directors and stockholders of
Tegal
Corporation
Limited pursuant to the Plan of Reorganization and which was intended to
become
effective upon the filing of the Certificate of Incorporation and the
Certificate of Domestication.
4. A
new
paragraph (L) is added to Article Fourth of the Certificate of Incorporation
to read as follows:
"(L)
Effective at the time of the filing of this Certificate of Incorporation
with the Secretary of State of the State of Delaware (the "Effective
Time"):
|
1.
|
Each
seven (7) shares of the Corporation's Common Stock, par
value $0.01 per share, issued and outstanding or held in treasury
immediately prior to the Effective Time shall, automatically
and without any action on the part of the respective
holders thereof, be reclassified into one (1) share
of
Common Stock, par value $0.01 per share, of the Corporation
and each stock certificate that, immediately prior to
the Effective Time, represented seven (7) shares of the Corporation's
Common Stock, par value $0.01 per share, shall,
from and after the Effective Time, represent one (1) share
of Common Stock, par value $0.01 per
share.
|
|
2.
|
Each
seven (7) shares of the Corporation's Series A Preferred
Stock, par value $0.01 per share, issued and outstanding or held
in
treasury immediately prior to the Effective
Time shall, automatically and without any action on the
part of the respective holders thereof, be reclassified into one
(1) share of Series A Preferred Stock, par value $0.01 per
share, of the Corporation and each stock certificate that, immediately
prior to the Effective Time, represented seven (7)
shares of the Corporation's Series A Preferred Stock, par value
$0.01 per share, shall, from and after the Effective Time,
represent one (1) share of Series A Preferred Stock, par value $0.01
per
share.
|
|
3.
|
Each
seven (7) shares of the Corporation's Series C Preferred
Stock, par value $0.01 per share, issued and outstanding
or held in treasury immediately prior to the Effective
Time shall, automatically and without any action on the
part of the respective holders thereof, be reclassified into one
(1) share of Series C Preferred Stock, par value $0.01 per
share, of the Corporation and each stock certificate that, immediately
prior to the Effective Time, represented seven (7)
shares of the Corporation's Series C Preferred Stock, par value
$0.01 per share, shall, from and after the Effective Time,
represent one (1) share of Series C Preferred Stock, par value $0.01
per
share.
|
|
4.
|
Each
seven (7) shares of the Corporation's Series D Preferred
Stock, par value $0.01 per share, issued and outstanding
or held in treasury immediately prior to the Effective
Time shall, automatically and without any action on the
part of the respective holders thereof, be reclassified into one
(1) share of Series D Preferred Stock, par value $0.01 per
share, of the Corporation and each stock certificate that, immediately
prior to the Effective Time, represented seven (7)
shares of the Corporation's Series D Preferred Stock, par value
$0.01 per share, shall, from and after the Effective Time,
represent one (1) share of Series D Preferred Stock, par value $0.01
per
share.
|
|
5.
|
Notwithstanding
the foregoing, to the extent that a stockholder
of the Corporation would receive fractional shares
of the Corporation's stock pursuant to sub-paragraphs (1),
(2), (3) and (4) hereof, such members shall instead receive
a cash payment from the Corporation in an amount equal
to the product of $10.00 multiplied by, in the case of fractional
shares of Common Stock, such fractional amount, and
in the case of shares of Preferred Stock, by the amount of
fractional shares of Common Stock to which such stockholder
would have been entitled had the fractional shares
of Preferred Stock been converted to Common Stock prior
to the proposed reverse stock
split."
|
IN
WITNESS WHEREOF; Tegal Corporation has caused this Certificate to he
executed
this 13th
day of
October, 1995.
|
TEGAL
CORPORATION
|
|
|
|
|
|
|
|
By:
|
/s/
David Curtis
|
|
Name:
|
David
Curtis
|
|
Title:
|
Vice
President, Secretary, Treasurer
|
|
|
STATE
OF DELAWARE
|
|
|
SECRETARY
OF STATE
|
|
|
DIVISION
OF CORPORATIONS
|
|
|
FILED
09:00 AM 10/25/1995
|
|
|
950247338
- 2545851
|
CERTIFICATE
OF AMENDMENT
OF
CERTIFICATE
OF INCORPORATION
OF
TEGAL
CORPORATION
It
is
hereby certified that:
1. The
name
of the Corporation (hereinafter called the "Corporation") is:
Tegal
Corporation
2. The
Certificate of Incorporation of the Corporation is hereby amended by striking
out
Article FOURTH thereof and by substituting in lieu of said Article the following
new Article:
"FOURTH:
The total number of shares of all classes of capital stock which
the
Corporation shall have authority to issue is Forty Million shares, comprised
of Thirty Five Million (35,000,000) shares of Common Stock, with a par value
of
One Cent (US $0.01) per share, and Five Million (5,000,000) shares of
Preferred Stock, with a par value of One Cent (US $0.01) per share. The
designation, powers, preferences and relative, participating, optional or other
special
rights, including voting rights, qualifications, limitations or restrictions
of
the Preferred Stock shall be established by resolution of the Board of Directors
pursuant
to Section 151 of the General Corporation Law of the State of Delaware."
3. The
amendment of the Certificate of Incorporation herein certified has been duly
adopted
in accordance with the provisions of Sections 228 and 242 of the General
Corporation Law of the State of Delaware, Prompt notice of the adoption of
the
amendment herein certified has
been
given to those stockholders who have not been consented in writing thereto,
as
provided
in Section 228 of the General Corporation Law of the State of
Delaware.
4. The
effective time of the amendment herein certified shall be October 26,
1995.
Signed
on
October 24,
1995.
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/s/
David Curtis
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David
Curtis,
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Secretary
|
|
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STATE
OF DELAWARE
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|
|
SECRETARY
OF STATE
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DIVISION
OF CORPORATIONS
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FILED
09:00 AM 12/21/1995
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950303514
- 2545851
|
CERTIFICATE
OF OWNERSHIP AND MERCER
OF
TEGAL
(DELAWARE) CORPORATION,
a
Delaware corporation
INTO
TEGAL
CORPORATION,
a
Delaware corporation
(Pursuant
to Section 253 or the General
Corporation
Law of Delaware)
IT
IS
HEREBY CERTIFIED THAT:
1. TEGAL
CORPORATION (hereinafter sometimes referred to as the "Corporation")
is incorporated pursuant to the General Corporation Law of the State of
Delaware.
2. The
Corporation is the owner of all of the outstanding shares of the capital
stock
of
TEGAL (DELAWARE) CORPORATION (hereinafter sometimes referred to as the
"Subsidiary"),
which is also incorporated pursuant to the General Corporation Law of the State
of
Delaware.
3. On
December 20,1995, the Board of Directors of the Corporation adopted uk
following
resolutions to merge the Subsidiary into the Corporation pursuant to Section
253
of
the
General Corporation Law of the State of Delaware:
NOW,
THEREFORE. BE IT RESOLVED, that Tegal (Delaware) Corporation
(the "Subsidiary") be merged with and into this Corporation, and that
all
of
the estate, property, rights, privileges, powers and franchises of the
Subsidiary
be vested in and held and enjoyed by this Corporation as fully and entirely
and without change or diminution as the same were before held and enjoyed by
the
Subsidiary in its name.
RESOLVED
FURTHER, that this Corporation shall assume all of the
liabilities and obligations of the Subsidiary.
RESOLVED
FURTHER, that, by virtue of the merger and without any
action on the part of the holder thereof, each issued and outstanding share
of
capital stock of the Subsidiary shall be cancelled and no consideration issued
in respect
thereof.
RESOLVED
FURTHER, that, by virtue of the merger and without any
action on the part of the holders thereof, each issued and outstanding share
of
capital stock of the Corporation shall remain unchanged and continue to be
such
issued and outstanding share of capital stock of the Corporation.
RESOLVED
FURTHER, that this Corporation shall cause to be executed and filed and/or
recorded the documents prescribed by the laws of the State
of
Delaware and by the laws of any other appropriate jurisdiction and will
cause
to
be performed all necessary acts within the State of Delaware and within
any
other
appropriate jurisdiction for the purpose of effecting the foregoing resolutions.
RESOLVED
FURTHER, that the proper officers of the Corporation
be, and they hereby are, authorized and directed in the name and on behalf
of
the Corporation to execute and deliver such certificates, instruments, notices,
requests, statements and such other documents and communications as they in
their discretion may deem necessary or desirable in order to carry out the
purpose
and intent of the foregoing resolutions.
RESOLVED
FURTHER, that any and all actions heretofore taken by
any
officer or director of the Corporation and any and all agreements or other
documents executed on behalf of the Corporation by an officer or director of
the
Corporation
in connection with the merger of the Subsidiary with and into the Corporation
be, and they hereby are, ratified, confirmed and approved in all respects.
RESOLVED
FURTHER, that the effective date of the Certificate of
Ownership and Merger setting forth a copy of these resolutions, and the date
when
the
merger therein provided for shall become effective, shall be January 1,
1996.
IN
WITNESS WHEREOF, the Corporation has caused this certificate to be signed
by
its President as of December 21,
1995.
|
TEGAL
CORPORATION,
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a
Delaware corporation
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By:
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Robert
V. Hery
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Name:
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Robert
V. Hery
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Title:
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President
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State
of Delaware
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|
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Secretary
of State
|
|
|
Division
of Corporations
|
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|
Delivered
01:45 PM 09/09/2003
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|
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FILED
01:45 PM 09/09/2003
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|
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SRV
030580279 - 2545851 FILE
|
CERTIFICATE
OF AMENDMENT
OF
CERTIFICATE
OF INCORPORATION
OF
TEGAL CORPORATION
It
is
hereby certified that:
1. The
name
of the Corporation (hereinafter called the "Corporation") is Tegal
Corporation.
2. The
Certificate of Incorporation is hereby amended by striking out the first
sentence of Article
FOURTH thereof and by substituting in lieu of said sentence the following new
sentence:
"FOURTH:
The total number of shares of all classes of capital stock which the Corporation
shall have authority to issue is One Hundred Five Million shares, comprised
of
One Hundred Million (100,000,000) shares of Common Stock, with a par value
of
One Cent (U.S. $0.01) per share, and Five Million (5,000,000) shares of
Preferred Stock, with a par value of One Cent (U.S. $0.01) per share.
3. The
amendment of the Certificate of Incorporation herein certified was submitted
to
the stockholders of the Corporation and was duly approved by the required vote
of stockholders of the
Corporation in accordance with the provisions of Sections 222 and 242 of the
General Corporation
Law of the State of Delaware. The total number of outstanding shares entitled
to
vote
or
consent to this Amendment was 16,099,949 shares of Common Stock. A majority
of
the outstanding
shares of Common Stock, voting together as a single class, voted in favor of
this Certificate
of Amendment. The vote required was a majority of the outstanding shares of
Common
Stock, voting together as a single class.
IN
WITNESS WHEREOF, Tegal Corporation has caused this Certificate of Amendment
to
be
signed
by its Chief Executive Officer as of September 9, 2003.
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/s/
Michael L. Parodi
|
|
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Michael
L. Parodi
|
|
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President
and Chief Executive Officer
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|
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State
of Delaware
|
|
|
Secretary
of State
|
|
|
Division
of Corporations
|
|
|
Delivered
03:31 PM 09/13/2005
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|
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FILED
03:31 PM 09/13/2005
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|
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SRV
050749064 - 2545851 FILE
|
CERTIFICATE
OF AMENDMENT
OF
CERTIFICATE
OF INCORPORATION
OF
TEGAL
CORPORATION
It
is
hereby certified That:
1. The
name
of the Corporation (hereinafter called the "Corporation") is Tegal
Corporation.
2. The
Certificate of Incorporation is hereby amended by striking out Article FOURTH
thereof and by substituting in lieu of said Article FOURTH the following new
Article FOURTH:
"FOURTH:
The total number of shares of all classes of capital stock which the
corporation
shall have the authority to issue is Two Hundred Five Million shares, comprised
of Two Hundred Million (200,000,000) shares of Common Stock, par value
$0.01 per share, and Five Million (5,000,000) shares of Preferred Stock,
par
value
$0.01 per share. The designation, powers, preferences and relative, participating,
optional or other special rights, including voting rights, qualifications,
limitations or restrictions of the Preferred Stock shall he established
by resolution of the Board of Directors pursuant to Section 151 of the General
Corporation law of the State of Delaware."
3. The
Certificate of Incorporation is hereby amended by adding an Article TENTH,
to
read as follows:
"TENTH:
In furtherance and not in limitation of the powers conferred by the laws
of
the State of Delaware, (i) the Board is expressly authorized and empowered
to make, amend, supplement or repeal the Bylaws in any manner, without
the assent or vote of the stockholders, not inconsistent with the laws of
the
State
of Delaware or this Certificate of Incorporation, and (ii) the stockholders
may change or amend or repeal the Bylaws in any manner pursuant to
a vote
of a majority of the voting power of the outstanding shares of capital
stock
entitled to vote."
4. The
amendment of the Certificate of Incorporation herein certified was submitted
to
the stockholders
of the Corporation and was duly approved by the required vote of stockholders
of
the Corporation
in accordance with the provisions of Sections 222 and 242 of the General
Corporation Law of
the
State of Delaware. The total number of outstanding shares entitled to vote
or
consent to this Amendment
was 59,404,613 shares of Common Stock. A majority of the outstanding shares
of
Common Stock,
voting together as a single class, voted in favor of this Certificate of
Amendment. The vote required
was a majority of the outstanding shares of Common Stock, voting together as
a
single class.
IN
WITNESS WHEREOF, Tegal Corporation has caused this Certificate of Amendment
to
be signed
by
its Chief Executive Officer as of September 13, 2005.
|
/s/
Thomas R. Mika
|
|
Thomas
R. Mika
|
|
President
and Chief Executive Officer
|
|
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State
of Delaware
|
|
|
Secretary
of State
|
|
|
Division
of Corporation
|
|
|
Delivered
03:54 PM 07/21/2006
|
|
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FILED
03:54 PM 07/21/2006
|
|
|
SRV
060691733 - 2545851
FILE
|
CERTIFICATE
OF AMENDMENT
TO
CERTIFICATE
OF INCORPORATION
OF
TEGAL CORPORATION
It
is
hereby certified that:
1. The
name
of the Corporation (hereinafter called the "Corporation") is Tegal
Corporation.
2. The
Certificate of Incorporation is hereby amended by striking out Article FOURTH
thereof and by substituting in lieu of said Article the following new
Article:
"FOURTH: The
total
number of shares of all classes of capital stock which the Corporation
shall
have authority to issue is Two Hundred Five Million (205,000,000) shares,
comprised of Two Hundred Million (200,000,000) shares of Common Stock, par
value
$0.01 per share, and Five
Million (5,000,000) shares of Preferred Stock, par value $0.01 per share.
Effective as of 5:00
p.m., Eastern time, on the date this Certificate of Amendment is filed with
the
Secretary of State of the State of Delaware, each twelve (12) shares of the
Corporation's Common Stock, par value $0.01 per share, issued and outstanding
shall, automatically and without any action on the part of the respective
holders thereof, be combined, converted and changed into one (1) share of
Common
stock, par value $0.01 per share, of the Corporation; provided,
however, that me
Corporation
shall issue no fractional shares of Common Stock, but shall instead pay to
any
stockholder
who would be entitled to receive a fractional share as a result of the actions
set forth herein
a
sum in cash equal to such fraction multiplied by the average of the high and
low
prices of the
Corporation's Common Stock as reported on the Nasdaq Capital Market for the
five
trading-day
period ending on the last business day before the date this Certificate of
Amendment is filed with
the
Secretary of State of the State of Delaware. The designation, powers,
preferences and relative, participating, optional or other special rights,
including voting rights, qualifications, limitations
or restrictions of the Preferred Stock shall be established by resolution of
the
Board of Directors pursuant to Section 151 of the General Corporation Law of
the
State of Delaware."
3. The
amendment of the Certificate of Incorporation herein certified was submitted
to
me stockholders of the Corporation and was duty approved by the required vote
of
stockholders of the Corporation in accordance with the provisions of Sections
222 and 242 of the General Corporation Law of the State of Delaware. The total
number of outstanding shares entitled to vote or consent to this Amendment
was 84,253,058 shares of Common Stock. A majority of the outstanding shares
of
Common Stock,
voting together as a single class, voted in favor of this Certificate of
Amendment The vote required
was a majority of the outstanding shares of Common Stock, voting together as
a
single class.
IN
WITNESS WHEREOF, Tegal Corporation has caused this Certificate of Amendment
to
be signed
by
its President & Chief Executive Officer as of July 21, 2006.
|
Thomas
R. Mika /s/
|
|
Thomas
R. Mika
|
|
President
&
Chief
Executive Officer
|