EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
KLA INSTRUMENTS CORPORATION
KLA Instruments Corporation, a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is KLA Instruments Corporation, and the
name under which the corporation was originally incorporated is KLA Corporation.
The date of filing its original Certificate of Incorporation with the
Secretary of State was July 9, 1975.
2. This Restated Certificate of Incorporation only restates and integrates
and does not further amend the provisions of the Certificate of Incorporation of
this corporation as heretofore amended or supplemented and there is no
discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
3. The text of the Certificate of Incorporation as amended or supplemented
heretofore is hereby restated without further amendments or changes to read as
herein set forth in full:
"FIRST: The name of the corporation (hereinafter called the "corporation")
is KLA INSTRUMENTS CORPORATION.
SECOND: The address, including street, number, city and county of the
registered office of the corporation in the State of Delaware is 1209 Orange
Street, City of Wilmington, County of New Castle, and the name of the registered
agent of the corporation in the State of Delaware at such address is The
Corporation Trust Company.
THIRD: The nature of the business and of the purposes to be conducted and
promoted by the corporation is as follows:
To manufacture, purchase or otherwise acquire, import and export, invest
in, own, mortgage, pledge, sell, assign, and transfer or otherwise dispose of,
trade, deal in and deal with goods, wares, merchandise and personal property of
every kind, nature and description, both on its own account and for others.
To render services of every kind, nature and description (including, but
not limited to, consulting, financial, engineering, research and similar or
related services) both on its own account and for others.
To develop, obtain, purchase or otherwise acquire, and to hold, own, use,
sell, limit or otherwise dispose of processes, formulae, inventions and devices
of every kind, nature and description, whether patented or not; and to apply for
and obtain letters patent under the laws of the United States or of any foreign
country.
To borrow or lend money, and to make and issue notes, bonds, debentures,
obligations, and evidences of indebtedness of all kinds, whether secured by
mortgage, pledge, or otherwise, without limit as to amount, and to secure the
same by mortgage, pledge, or otherwise and generally to make and perform
agreements and contracts of every kind and description.
To subscribe for, take, acquire, hold sell, exchange and deal in shares,
stock, bonds, obligations and securities of any corporation, government,
authority or company; to form, promote, subsidize and assist companies,
syndicates, or partnerships of all kinds, and to finance and refinance the same;
and to guarantee the obligations of other persons, firms, or corporations.
In general, to do any act necessary or incidental to the conduct of said
businesses and in the transaction thereof, to carry on any other business,
whether manufacturing or otherwise, and to do any other thing permitted by all
present and future laws of the State of Delaware applicable to business
corporations.
FOURTH: The aggregate number of shares of stock which the corporation
shall have authority to issue shall be thirty-one million (31,000,000) shares,
with the par value of each of such shares being one mil ($0.001). All such
shares shall be of one class designated Common Shares.
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The Common Shares authorized by this Certificate of Incorporation shall be
issued in series. The first series of Common Shares shall be designated "Common
Stock" and shall consist of 30,000,000 shares. The second series of Common
Shares and all other series of Common Shares (other than Common Stock), shall be
designated as a group, "Junior Common Stock," and shall consist of 1,000,000
shares.
The Board of Directors is authorized, subject to limitations prescribed by
law and the provisions of this Article FOURTH, to provide for the issuance of
the shares of Junior Common Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to establish from time
to time the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations or restrictions thereof.
The authority of the Board with respect to each series shall include, but
not be limited to, determination of the following:
(a) The number of shares constituting that series and the distinctive
designation of that series.
(b) The dividend rate on the shares of that series, and the relative
rights or priority, if any, of payment of dividends on shares on that
series;
(c) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(d) Whether such series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provisions for
adjustment of the conversion rate in such events as the Board of Directors
shall determine;
(e) The rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the corporation,
and the relative rights of priority, if any, of payment of shares of that
series; and
(f) Any other relative rights, preferences and limitations of that
series.
FIFTH: The name and the mailing address of the incorporator are as
follows:
NAME MAILING ADDRESS
- --------------- ----------------------
R.G. Dickerson 229 South State Street
Dover, Delaware
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
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EIGHTH: For the management of the business and for the conduct of the
affairs of the corporation, and in further definition, limitation and regulation
of the powers of the corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of the
corporation shall be vested in its Board of Directors. The number of directors
which shall constitute the whole Board of Directors shall be fixed by, or in the
manner provided in, the By-laws. The phrase "whole Board" and the phrase "total
number of directors" shall be deemed to have the same meaning, to wit, the total
number of directors which the corporation would have if there were no vacancies.
No election of directors need be by written ballot.
2. After the original or other By-Laws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and, after the corporation has received any payment for any of its
stock, the power to adopt, amend, or repeal the By-Laws of the corporation may
be exercised by the Board of Directors of the corporation; provided, however,
that any provision for the classification of directors of the corporation for
staggered terms pursuant to the provisions of subsection (d) of Section 141 of
the General Corporation Law of the State of Delaware shall be set forth in an
initial By-Law or in a By-Law adopted by the stockholders entitled to vote of
the corporation unless provisions for such classification shall be set forth in
this certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only one class of
stock, each outstanding share shall entitle the holder thereof to notice of, and
the right to vote at, any meeting of stockholders. Whenever the corporation
shall be authorized to issue more than one class of stock, no outstanding share
of any class of stock which is denied voting power under the provisions of the
certificate of incorporation shall entitle the holder thereof to the right to
vote, at any meeting of stockholders except as the provisions of paragraph
(c)(2) of Section 242 of the General Corporation Law of the State of Delaware
shall otherwise require; provided that no share of any such class which is
otherwise denied voting power shall entitle the holder thereof to vote upon the
increase or decrease in the number of authorized shares of said class.
NINTH: 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 and 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 a person.
TENTH: 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 TENTH.
ELEVENTH:
1. (a) In addition to any affirmative vote required by law or this
certificate of incorporation, and except as otherwise expressly provided in
paragraph 2 of this Article Eleventh:
(i) any merger or consolidation of the corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested Shareholder
(as hereinafter defined) or (b) any other corporation (whether or not
itself an Interested Shareholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an
Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with
any Interested Shareholder or any Affiliate of any
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Interested Shareholder of any assets of the corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or more;
or
(iii) the issuance or transfer by the corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of
the corporation or any Subsidiary to any Interested Shareholder or any
Affiliate of any Interested Shareholder in exchange for cash, securities
or other property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the corporation proposed by or on behalf of an Interested
Shareholder or any Affiliate of any Interested Shareholder; or
(v) any reclassification of securities (including any reverse stock
split), or recapitalization of the corporation, or any merger or
consolidation of the corporation with any of its subsidiaries or any
other transaction (whether or not with or into or otherwise involving an
Interested Shareholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any
class of equity or convertible securities of the corporation of any
Subsidiary which is directly or indirectly owned by an Interested
Shareholder or any Affiliate of any Interested Shareholder; shall
require the affirmative vote of the holders of at least eighty percent
(80%) of the then outstanding shares of capital stock of the corporation
authorized to be issued from time to time under Article Fourth of this
certificate of incorporation (the "Voting Stock"), voting together as a
single class. Such affirmative vote shall be required notwithstanding
the fact that no vote may be required, or that a lesser percentage may
be specified, by law or in any agreement with any national securities
exchange or otherwise. Notwithstanding any other provision of this
certificate of incorporation to the contrary, for purposes of this
Article Eleventh, each share of the Voting Stock shall have one vote.
(b) The term "Business Combination" as used in this Article Eleventh
shall mean any transaction which is referred to in any one or more of
clauses (i) through (v) of subparagraph (a) of this paragraph 1.
2. The provisions of paragraph 1 of this Article Eleventh shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote as is required by law and any other
provisions of this certificate of incorporation, if all of the conditions
specified in the following subparagraph (a) are met:
(a) The Business Combination shall have been approved by a majority of
the Continuing Directors (as hereinafter defined); provided, however, that
such approval shall only be effective if obtained at a meeting at which a
Continuing Director Quorum (as hereinafter defined) is present.
3. For the purposes of this Article Eleventh:
(a) The term "person" shall mean any individual, firm, corporation or
other entity.
(b) The term "Interested Shareholder" shall mean any person (other
than the corporation or any Subsidiary and other than any profit-sharing,
employee stock ownership or other employee benefit plan of the corporation
or any Subsidiary or any trustee of or fiduciary with respect to any such
plan when acting in such capacity) who or which:
(i) is the beneficial owner (as hereinafter defined) or more than
five percent (5%) of the Voting Stock; or
(ii) is an Affiliate (as hereinafter defined) of the corporation
and at any time within the two-year period immediately prior to the date
in question was the beneficial owner of five percent (5%) or more of the
Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Shareholder, if such assignment or succession shall have
occurred in the course of a
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transaction or series of transactions not involving a public offering
within the meaning of the Securities Act of 1933.
(c) A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has,
directly or indirectly, (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (b) the right to vote pursuant to any agreement, arrangement or
understanding; or
(iii) which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
(d) For the purposes of determining whether a person is an Interested
Shareholder pursuant to subparagraph (b) of this paragraph 3, the number of
shares of Voting Stock deemed to be outstanding shall include shares deemed
owned through application of subparagraph (c) of this paragraph 3 but shall
not include any other shares of Voting Stock which may be issuable pursuant
to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(e) The terms "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
January 1, 1984.
(f) The term "Subsidiary" means any corporation of which a majority of
any class of equity security is owned, directly or indirectly, by the
corporation; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in subparagraph (b) of this paragraph 3,
the term "Subsidiary" shall mean only a corporation of which a majority of
each class of equity security is owned, directly or indirectly, by the
corporation.
(g) The term "Continuing Director" means any member of the Board of
Directors of the corporation (the "Board") who is unaffiliated with the
Interested Shareholder and was a member of the Board prior to the time that
the Interested Shareholder became an Interested Shareholder, and any
successor of a Continuing Director who is unaffiliated with the Interested
Shareholder and is recommended or elected to succeed a Continuing Director
by a majority of Continuing Directors, provided that such recommendation or
election shall only be effective is made at a meeting at which a Continuing
Director Quorum is present.
(h) The term "Continuing Director Quorum" means four Continuing
Directors capable of exercising the powers conferred upon them under the
provisions of the certificate of incorporation or By-Laws of the
corporation or by law.
4. Notwithstanding any other provisions of this certificate of
incorporation or by the By-Laws of the corporation (and notwithstanding the fact
that a lesser percentage may be specified by law, this certificate of
incorporation or the ByLaws of the corporation) the affirmative vote of the
holders of eighty percent (80%) or more of the shares of Voting Stock, voting
together as a single class, shall be required to amend or repeal, or adopt any
provisions inconsistent with, this Article Eleventh."
5. This Restated Certificate of Incorporation was duly adopted by the
Board of Directors in accordance with Section 245 of the General Corporation Law
of the State of Delaware.
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IN WITNESS WHEREOF, said KLA Instruments Corporation has caused this
certificate to be signed by Kenneth Levy, its President, and attested by Paul E.
Kreutz, its Secretary, this 21 day of May, 1985.
KLA INSTRUMENTS CORPORATION
By:/s/ Kenneth Levy
President
ATTEST:
By: /s/ Paul E. Kreutz
Secretary
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
KLA INSTRUMENTS CORPORATION
KLA INSTRUMENTS CORPORATION, a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY
CERTIFY:
FIRST: The amendment to the Corporation's Certificate of Incorporation set
forth in the following resolutions approved by the Corporation's Board of
Directors and stockholders was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware:
RESOLVED, that Article FOURTH of the Corporation's Certificate of
Incorporation be amended and restated in its entirety to read as follows:
FOURTH: The aggregate number of shares of stock which the corporation
shall have authority to issue shall be 76,000,000 shares, with the par
value of each of such shares being $0.001. These shares shall be divided
into the following classes:
(1) 75,000,000 shares shall be designated as Common Shares; and
(2) 1,000,000 shall be designated as Preferred Stock.
The Common Shares authorized by this Certificate of Incorporation
shall be issued in series. The first series of Common Shares shall be
designated "Common Stock" and shall consist of 74,000,000 shares. The
second series of Common Shares and all other series of Common Shares
(other than Common Stock), shall be designated as a group, "Junior
Common Stock," and shall consist of 1,000,000 shares.
The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of the Article FOURTH, to provide
for the issuance of the shares of Junior Common Stock in series, and by
filing a certificate pursuant to the applicable law of the State of
Delaware, to establish from time to time the number of shares to be
included in such series, and to fix the designation, powers, preferences
and rights of the shares of each such series and the qualification,
limitations or restrictions thereof.
The authority of the Board with respect to each series of Common
Shares shall include, but not be limited to, determination of the
following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate of the shares of that series, and the
relative rights of priority, if any, of payment of dividends on
shares of that series;
(c) Whether such series shall have voting rights, in addition to
the voting rights provided by law, and, if so, the terms of such
voting rights;
(d) Whether such series shall have conversion privileges, and,
if so, the terms and conditions of such conversion, including
provision for adjustment of the conversion rate in such events as the
Board of Directors shall determine;
(e) The rights of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of
the corporation and the relative rights of priority, if any, of
payment of shares of that series, and
(f) Any other relative rights, preferences and limitations of
that series.
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The Board of Directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of shares of Preferred
Stock in series, and by filing a certificate pursuant to the applicable
law of the State of Delaware, to establish from time to time the number
of shares to be included in each such series, and to fix the
designation, powers, preferences, and rights of the shares of each such
series and any qualifications, limitations or restrictions thereof. The
number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares thereof then outstanding)
by the affirmative vote of the holders of a majority of the Common
Stock, without a vote of the holders of the Preferred Stock, or of any
series thereof, unless a vote of any such holders is required pursuant
to the certificate or certificates establishing the series of Preferred
Stock.
RESOLVED FURTHER, that Article EIGHTH of the Corporation's Certificate of
Incorporation be amended by amending and restating paragraphs 1 and 2
thereof to read as follows:
1. (a) The business and affairs of the corporation shall be managed
by or under the direction of the Board of Directors. In addition to the
powers and authority expressly conferred upon them by the General
Corporation Law of the State of Delaware or by this Certificate of
Incorporation or the By-laws of the corporation, the directors are hereby
empowered to exercise all such powers and do all such acts and things as
may be exercised or done by the corporation.
(b) The number of directors shall initially be six and, thereafter,
shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is
presented to the Board for adoption).
(c) The directors shall be divided into three classes, as nearly
equal in number as reasonably possible, with the term of office of the
first class to expire at the 1990 annual meeting of stockholders, the
term of office of the second class to expire at the 1991 annual meeting
of stockholders and the term of office of the third class to expire at
the 1992 annual meeting of stockholders. At each annual meeting of
stockholders following such initial classification and election,
directors shall be elected to succeed those directors whose terms expire
for a term of office to expire at the third succeeding annual meeting of
stockholders after their election. All directors shall hold office until
the expiration of the term for which elected, and until their respective
successors are elected, except in the case of the death, resignation, or
removal of any director.
(d) Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the
Board of Directors resulting from death, resignation, retirement,
disqualification or other cause (other than removal from office by a
vote of stockholders) may be filled only by a majority vote of the
directors then in office, though less than a quorum, and directors so
chosen shall holder office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which they have
been elected expires. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any
incumbent director.
(e) Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of Directors,
may be removed from office at any time, but only for cause and only by
the affirmative vote of the holders of at least a majority of the voting
power of all of the then outstanding shares of capital stock of the
corporation entitled to vote generally in the election of directors,
voting together as a single class. Vacancies in the Board of Directors
resulting from such removal may be filled by (i) a majority of the
directors then in office, though less than a quorum, or (ii) the
stockholders at a special meeting of the stockholders properly called
for that purpose, by the vote of the holders of a majority of the shares
entitled to vote at such special meeting. Directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at
which the term of office of the class to which they have been elected
expires.
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2. After the original or other By-laws of the corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and, after the corporation has received any payment for any of
its stock, the power to adopt, amend, or repeal the By-Laws of the
corporation may be exercised by the Board of Directors of the Corporation.
RESOLVED FURTHER, that Article EIGHTH of the Corporation's Certificate of
Incorporation be further amended by adding the following new paragraph at
the end thereof:
4. Any action required or permitted to be taken by the stockholders
of the corporation must be effected at a duly called annual or special
meeting of stockholders of the corporation and may not be effected by any
consent in writing by such stockholders.
IN WITNESS WHEREOF, KLA INSTRUMENTS CORPORATION has caused its corporate
seal to be hereunto affixed and this certificate to be signed by Kenneth Levy,
its President, and attested by Paul E. Kreutz, its Secretary, this 26th day of
October, 1989.
CORPORATE SEAL KLA INSTRUMENTS CORPORATION
By:/s/ Kenneth Levy
Kenneth Levy, President
ATTEST:
By:/s/ Paul E. Kreutz
Paul E. Kreutz, Secretary
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