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EXHIBIT 3(i)(b)
CERTIFICATE OF INCORPORATION
OF
APPLIED MATERIALS, INC.
(as amended to March 27, 1998)
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 One Billion One
Hundred Million (1,100,000,000). 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.
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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.
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 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
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(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 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 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
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the corporation, whether in anticipation of 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 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.
(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:
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(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:
(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.
(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
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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.
(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 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
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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, 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 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
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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 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 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.
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/s/ Donald A. Slichter
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Donald A. Slichter
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