EXHIBIT 3(i)
CERTIFICATE OF INCORPORATION
OF
APPLIED MATERIALS, INC.
(as amended to March 18, 1996)
FIRST: The name of the corporation is Applied Materials, Inc.
SECOND: The address of the corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at that
address is The Corporation Trust Company.
THIRD: The name and mailing address of the incorporator of the
corporation is:
Donald A. Slichter
Orrick, Herrington & Sutcliffe
55 Almaden Boulevard
San Jose, California 95113
FOURTH: The nature of the business or purposes to be conducted or
promoted by the corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FIFTH: 1. The corporation is authorized to issue two classes of
shares to be designated, respectively, "Preferred Stock" and "Common Stock." The
number of shares of Preferred Stock authorized to be issued is One Million
(1,000,000) and the number of shares of Common Stock authorized to be issued is
Five Hundred Million (500,000,000). The stock, whether Preferred Stock or Common
Stock, shall have a par value of $.01 per share.
2. The shares of Preferred Stock may be issued from time to
time in one or more series. The Board of Directors is authorized, 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,
including but not limited to the fixing or alteration of the dividend rights,
dividend rate, conversion rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices, and the
liquidation preferences of any wholly unissued series of shares of Preferred
Stock; and to increase or decrease the number of shares of any series subsequent
to the issue of shares of that series, but not below the number of shares of
such series then outstanding. In case the number of shares of any series shall
be so decreased, the shares constituting such decrease shall resume the status
which they had prior to the adoption of the resolution originally fixing the
number of shares of such series.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, amend and
repeal from time to time any or all of the bylaws of the corporation, including
bylaw amendments increasing or reducing the authorized number of directors.
SEVENTH: No action shall be taken by the stockholders except at an
annual or special meeting of stockholders. No action shall be taken by
stockholders by written consent.
2
EIGHTH: Elections of directors need not be by written ballot unless the
bylaws of the corporation shall so provide.
NINTH: 1. The affirmative vote of the holders of not less than
sixty-six and sixty-seven hundredths percent (66.67%) of the outstanding shares
of "Voting Stock" (as hereinafter defined) shall be required for the approval or
authorization of any "Business Combination" (as hereinafter defined) of this
corporation or any subsidiary of this corporation with any "Related Person" (as
hereinafter defined), notwithstanding the fact that no vote may be required or
that a lesser percentage may be specified by law, in any agreement with any
national securities exchange or otherwise; provided, however, that the sixty-six
and sixty-seven hundredths percent (66.67%) voting requirement shall not be
applicable and such Business Combination shall require only such affirmative
vote as is required by law, any agreement with any national securities exchange
or otherwise if:
(a) The "Continuing Directors" (as hereinafter defined) of
this corporation by at least a majority vote have expressly
approved such Business Combination either in advance of or
subsequent to such Related Person becoming a Related Person; or
(b) All of the following conditions are met:
(i) The cash or "Fair Market Value" (as hereinafter
defined) as of the date of the consummation of the Business
Combination (the "Combination Date") of the property,
securities or other consideration to be
3
received per share by holders of a particular class or series
of capital stock, as the case may be, of this corporation in
the Business Combination is not less than the highest of:
(A) the highest per share price (including brokerage
commissions, transfer taxes and soliciting dealers' fees) paid
by or on behalf of the Related Person in acquiring beneficial
ownership of any of its holdings of such class or series of
capital stock of this corporation (i) within the two-year
period immediately prior to the Combination Date or (ii) in the
transaction or series of transactions in which the Related
Person became a Related Person, whichever is higher; or
(B) the Fair Market Value per share of the shares of
capital stock being acquired in the Business Combination (i) as
of the Combination Date or (ii) the date on which the Related
Person became a Related Person, whichever is higher; or
(C) in the case of Common Stock, the per share book
value of the Common Stock as reported at the end of the fiscal
quarter immediately prior to the Combination Date, and in the
case of Preferred Stock, the highest preferential amount per
share to which the holders of shares of such class or series of
Preferred Stock would be entitled in the event of any voluntary
or involuntary liquidation, dissolution or winding up
4
of the affairs of the corporation, regardless of whether the
Business Combination to be consummated constitutes such an
event.
The provision of this paragraph l(b)(i) shall be required to be
met with respect to every class or series of outstanding capital stock, whether
or not the Related Person has previously acquired any shares of a particular
class or series of capital stock. In all of the above instances, appropriate
adjustments shall be made for recapitalizations and for stock dividends, stock
splits and like distributions; and
(ii) The consideration to be received by holders of a
particular class or series of capital stock shall be in cash or
in the same form as previously has been paid by or on behalf of
the Related Person in connection with its direct or indirect
acquisition of beneficial ownership of shares of such class or
series of stock. If the consideration so paid for any such
shares varied as to form, the form of consideration for such
shares shall be either cash or the form used to acquire
beneficial ownership of the largest number of shares of such
class or series of capital stock previously acquired by the
Related Person; and
(iii) After such Related Person has become a Related
Person and prior to the consummation of such Business
Combination: (a) except as approved by a majority of the
Continuing Directors, there shall have
5
been no failure to declare and pay at the regular date therefor
any full quarterly dividends (whether or not cumulative) on the
outstanding Preferred Stock; (b) there shall have been (1) no
reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the
Continuing Directors, and (2) an increase in such annual rate
of dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect
of reducing the number of outstanding shares of the Common
Stock, unless the failure so to increase such annual rate is
approved by a majority of the Continuing Directors; and (c)
such Related Person shall have not become the beneficial owner
of any additional shares of Voting Stock except as part of the
transaction which results in such Related Person becoming a
Related Person; and
(iv) After such Related Person has become a Related
Person, such Related Person shall not have received the
benefit, directly or indirectly (except as proportionately as a
stockholder), of any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or other tax
advantages provided by the corporation, whether in anticipation
of
6
or in connection with such Business Combination or otherwise;
and
(v) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to
public stockholders of the corporation at least 30 days prior
to the consummation of such Business Combination (whether or
not such proxy or information statement is required to be
mailed pursuant to such Act or subsequent provisions).
2. For purposes of this Article NINTH:
(a) The term "Business Combination" shall mean any (i)
merger or consolidation of this corporation or a Subsidiary (as hereinafter
defined) of this corporation with a Related Person or any other corporation
which is or after such merger or consolidation would be an "Affiliate" or
"Associate" (as hereinafter defined) of a Related Person, (ii) sale, lease,
exchange, mortgage, pledge, transfer or other disposition (in one transaction or
a series of transactions) with any Related Person or any Affiliate or Associate
of any Related Person, of all or any "Substantial Part" (as hereinafter defined)
of the assets of this corporation or of a Subsidiary of this corporation to a
Related Person or any Affiliate or Associate of any Related Person, (iii)
adoption of any plan or proposal for the
7
liquidation or dissolution of this corporation proposed by or on behalf of a
Related Person or any Affiliate or Associate of any Related Person, (iv) sale,
lease, exchange or other disposition, including without limitation a mortgage or
other security device, of all or any Substantial Part of the assets of a Related
Person or any Affiliate or Associate of any Related Person to this corporation
or a Subsidiary of this corporation, (v) issuance or pledge of securities of
this corporation or a Subsidiary of this corporation to or with a Related Person
or any Affiliate or Associate of any Related Person, (vi) reclassification of
securities (including any reverse stock split) or recapitalization of this
corporation or any other transaction that would have the effect, either directly
or indirectly, of increasing the proportionate share of any class of equity or
convertible securities of this corporation or any Subsidiary of this corporation
which is directly or indirectly beneficially owned by any Related Person or any
Affiliate or Associate of any Related Person, and (vii) agreement, contract or
other arrangement providing for any of the transactions described in this
definition of Business Combination.
(b) The term "person" shall mean any individual, firm,
corporation or other entity and shall include any group comprised of any person
and any other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding, directly or indirectly,
for the purpose of acquiring, holding, voting or disposing of Voting Stock of
this corporation.
8
(c) The term "Related Person" shall mean any person (other than
this corporation, or any Subsidiary and other than any profit-sharing, employee
stock ownership or other employee benefit plan of this 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) of
fifteen percent (15%) or more of the Voting Stock;
(ii) is an Affiliate or Associate of this corporation and
at any time within the two-year period immediately prior to the
date in question was the beneficial owner of fifteen percent
(15%) or more of the Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to the
beneficial ownership of any shares of Voting Stock which were
at any time within the two-year period immediately prior to
such time beneficially owned by any Related Person, if such
assignment or succession shall have occurred in the course of a
transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(d) A person shall be a "beneficial owner" of any Voting Stock:
9
(i) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly,
(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.
(e) For the purposes of determining whether a person is a
Related Person pursuant to subparagraph (c) of this paragraph 2, the number of
shares of Voting Stock deemed to be outstanding shall include shares deemed
owned through application of subparagraph (d) of this paragraph 2 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.
10
(f) 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 12, 1987.
(g) The term "Subsidiary" means any corporation of which a
majority of any class of equity securities is owned, directly or indirectly, by
this corporation; provided, however, that for the purposes of the definition of
Related Person set forth in subparagraph (c) of this paragraph 2, the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity securities is owned, directly or indirectly, by this corporation.
(h) The term "Continuing Director" means any member of the
Board of Directors, while such person is a member of the Board of Directors, who
is not an Affiliate, Associate or a representative of the Related Person
involved in a proposed Business Combination and was a member of the Board of
Directors prior to the time that the Related Person became a Related Person, and
any successor of a Continuing Director, while such successor is a member of the
Board of Directors, who is not an Affiliate, Associate or a representative of
the Related Person and is recommended or elected to succeed a Continuing
Director by a majority of Continuing Directors. Each initial director of this
corporation elected by the incorporator of this corporation shall be a
Continuing Director for purposes of this Article NINTH.
11
(i) The term "Substantial Part" shall mean more than twenty
percent (20%) of the Fair Market Value, as determined by a majority of the
Continuing Directors, of the total consolidated assets of this corporation and
its Subsidiaries taken as a whole as of the end of its most recent fiscal year
ended prior to the time the determination is being made.
(j) For the purposes of paragraph l(b)(i) of this Article
NINTH, the term "other consideration to be received" shall include, without
limitation, capital stock retained by the shareholders.
(k) The term "Voting Stock" shall mean all of the outstanding
shares of Common Stock and the outstanding shares of Preferred Stock entitled to
vote on each matter on which the holders of record of Common Stock shall be
entitled to vote, and each reference to a proportion of shares of Voting Stock
shall refer to such proportion of the votes entitled to be cast by such shares
voting as one class.
(l) The term "Fair Market Value" means (i) in case of capital
stock, the highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the Composite Tape
for the New York Stock Exchange Listed Stocks, or, if such stock is not quoted
on the Composite Tape, on the New York Stock Exchange, or if such stock is not
listed on such Exchange, on the principal United States securities exchange
registered under the Securities Act of 1934 on which such stock is listed, or,
if such stock is not listed on any such stock exchange, the highest closing sale
price with
12
respect to a share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any successor system then in use, or if no such quotations
are available, the fair market value on the date in question of a share of such
stock as determined in good faith by a majority of the Continuing Directors; and
(ii) in the case of property other than cash or stock, the fair market value of
such property on the date in question as determined in good faith by a majority
of the Continuing Directors.
(m) A Related Person shall be deemed to have acquired a share
of the Voting Stock of this corporation at the time when such Related Person
became the beneficial owner thereof. If a majority of the Continuing Directors
is not able to determine the price at which a Related Person has acquired a
share of Voting Stock of this corporation, such price shall be deemed to be the
Fair Market Value of the shares in question at the time when the Related Person
became the beneficial owner thereof. With respect to shares owned by Affiliates,
Associates or other persons whose ownership is attributed to a Related Person
under the foregoing definition of Related Person, the price deemed to be paid
therefor by such Related Person shall be the price paid upon the acquisition
thereof by such Affiliate, Associate or other person, or, if such price is not
determinable by a majority of the Continuing Directors, the Fair Market Value of
the shares in question at the time when the Affiliate,
13
Associate or other such person became the beneficial owner thereof.
3. The fact that any Business Combination complies with the
provisions of paragraph l(b) of this Article NINTH shall not be construed to
impose any fiduciary duty, obligation or responsibility on the Board of
Directors, or any member thereof, to approve such Business Combination or
recommend its adoption or approval to the shareholders of this corporation, nor
shall such compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, with respect to evaluations of or
actions and responses taken with respect to such Business Combination.
4. A majority of the Continuing Directors of the corporation
shall have the power and duty to determine for the purposes of this Article
NINTH, on the basis of information known to them after reasonable inquiry, (A)
whether a person is a Related Person, (B) the number of shares of Voting Stock
beneficially owned by any person, and (C) whether a person is an Affiliate or
Associate of another. A majority of the Continuing Directors of the corporation
shall have the further power to interpret all of the terms and provisions of
this Article NINTH.
TENTH: A director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
14
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
ELEVENTH: 1. Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director, officer, employee or agent, of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
15
paragraph 2 hereof, the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the corporation. The right to indemnification conferred in
this Article shall be a contract right.
2. If a claim under paragraph 1 of this Article is not paid in
full by the corporation within 30 days after a written claim has been received
by the corporation, the claimant may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the corporation to indemnify the claimant for the
amount claimed.
3. The right to indemnification conferred in this Article
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
4. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or
16
agent of the corporation or another corporation, partnership, joint venture,
trust or other enterprise against any such expense, liability or loss, whether
or not the corporation would have the power to indemnify such person against
such expense, liability or loss under the Delaware General Corporation Law.
TWELFTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation. Notwithstanding the
foregoing, the provisions set forth in Articles NINTH, TENTH, ELEVENTH and
TWELFTH may not be amended or repealed in any respect unless such amendment or
repeal is approved by the affirmative vote of not less than sixty-six and
sixty-seven hundredths percent (66.67%) of the total voting power of all
outstanding shares of stock in this corporation entitled to vote thereon.
THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation to do business both within and without the
State of Delaware, and in pursuance of the Delaware Corporation Law, does hereby
make and file this Certificate.
------------------------------
Donald A. Slichter
17