CERTIFICATE OF DETERMINATION
OF
TRIKON TECHNOLOGIES, INC.
Gregor A. Campbell and John La Valle hereby certify as follows:
1. They are the President and Secretary, respectively, of Trikon
Technologies, Inc., a California corporation (the "Corporation").
2. The number of shares of Preferred Stock which the Corporation is
authorized to issue is 20,000,000 shares, none of which is issued and
outstanding.
3. The Board of Directors of the Corporation has duly adopted the
following resolution:
"WHEREAS, the Articles of Incorporation of the Corporation authorize
the Board of Directors to determine the number of series into which shares of
Preferred Stock may be divided and the designation of any such series and,
except with respect to the Series A Preferred Stock, the Series B Preferred
Stock, the Series C Preferred Stock, the Series D Preferred Stock, the Series E
Preferred Stock and the Series F Preferred Stock (collectively, the "Prior
Preferred"), which are described therein (and none of the shares of which are
presently issued and outstanding), the Board of Directors is further authorized
to determine the rights, preferences, privileges and restrictions granted to or
imposed upon any wholly unissued series of Preferred Stock and to fix the number
and shares and designation of any such series; and
WHEREAS, all of the shares of Prior Preferred were automatically
converted into shares of Common Stock upon the closing of the Corporation's
initial public offering of securities registered with the Securities and
Exchange Commission at the closing of such offering on August 29, 1995, which
shares have, pursuant to the Articles of Incorporation of the Corporation,
returned to the status of authorized and unissued Preferred Stock of an
undesignated series and which shares can no longer be issued as shares of Prior
Preferred in light of the automatic conversion terms thereof, as described above
in this paragraph;
NOW, THEREFORE, IT IS RESOLVED, that the Board of Directors does
hereby establish a series of Preferred Stock as follows:
(a) The designation of such series of Preferred Stock is the Series G
Preferred Stock, and the number of shares of such Series G Preferred Stock is
3,125,000, none of which has been issued.
(b) The rights, preferences, privileges and restrictions granted to
and imposed upon the Series G Preferred Stock and the holders thereof shall be
as set forth below.
Section 1. Definitions
-----------
For purposes of Sections 1 through 5 below, the following definitions
shall apply:
(a) "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Corporation after the filing of this Certificate of
Determination, whether or not subsequently reacquired or retired by the
Corporation, other than:
(i) Shares issuable upon conversion of the Series G Preferred
Stock;
(ii) Shares of Common Stock issued to employees or directors of
(or consultants to) the Corporation, or issuable upon exercise of
stock options granted to such employees, directors or consultants,
pursuant to stock-based compensation plans approved by the Board;
(iii) Shares issued or issuable by way of stock split or stock
dividend; and
(iv) Shares issued or issuable to, or issuable upon the exercise
or conversion of warrants or Convertible Securities issued to,
investors in the Corporation pursuant to and in connection with
strategic business relationships between the Corporation and such
investors, which business relationships and issuances of securities
have been unanimously approved by the Board.
(b) "Board" shall mean the Board of Directors of the Corporation.
(c) "Common Stock" shall mean the Common Stock of the Corporation.
(d) "Conversion Price" shall have the meaning set forth in Section
5(a) below.
(e) "Convertible Securities" shall mean evidences of indebtedness,
shares of stock or other securities which are at any time directly or indirectly
convertible into or exchangeable for Additional Shares of Common Stock.
(f) "Corporation" shall mean this corporation.
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Section 2. Dividends
---------
In each fiscal year of the Corporation, the holders of shares of
Series G Preferred Stock shall be entitled to receive, before any cash dividends
shall be paid or declared and set aside for the Common Stock in such fiscal
year, when and as declared by the Board, out of funds legally available for that
purpose, dividends payable in an amount per share for such fiscal year equal to
the per share amount, if any, of any cash dividend declared, paid or set aside
for the Common Stock during such fiscal year, multiplied by the number of shares
of Common Stock into which each such share of Series G Preferred Stock is then
convertible. Dividends for the Series G Preferred Stock declared by the Board
but not paid shall accrue. No dividends shall accrue upon the Series G
Preferred Stock unless declared by the Board in its sole discretion in
accordance with the foregoing provisions of this Section 2.
Section 3. Liquidation, Dissolution or Winding Up
--------------------------------------
(a) In the event of a voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, including a merger, acquisition or
other reorganization in which the Corporation is not the surviving entity, all
assets or surplus funds of the Corporation shall be distributed to the holders
of the Common Stock and the Series G Preferred Stock in the following manner and
order of priority:
(i) First, ratably among the holders of the Series G Preferred
-----
Stock until such holders have received $6.40 per share;
(ii) Second, ratably among the holders of the Common Stock until
------
such holders have received $6.40 per share; and
(iii) Third, to the holders of the Common Stock and the Series G
-----
Preferred Stock on a pro rata basis according to the number of shares
of Common Stock (A) then held, with respect to the Common Stock, and
(B) into which the shares of Series G Preferred Stock then held are
convertible, in the case of the Series G Preferred Stock.
No adjustment to the Conversion Price pursuant to this Certificate of
Determination shall alter the above liquidation preference dollar amounts.
(b) The dollar amounts specified in Section 3(a) shall be equitably
adjusted in the event of any stock splits, stock dividends or similar capital
modifications affecting the Common Stock or the Series G Preferred Stock after
the filing of this Certificate of Determination.
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(c) Insofar as any distribution pursuant to Section 3(a) consists of
property other than cash, the value thereof shall, for purposes of the
provisions of Section 3(a), be the fair value at the time of such distribution,
as determined in good faith by the Board.
Section 4. Voting
------
(a) At all meetings of the stockholders of the Corporation and in the
case of any actions of stockholders in lieu of a meeting, each share of Common
Stock shall be entitled to one vote, and each share of Series G Preferred Stock
shall be entitled to that number of votes equal to the number of whole shares of
Common Stock into which such share is then convertible (in accordance with
Section 5 hereof) on the record date set for the meeting or action or, if no
record date is set, on the date of such meeting or the date such action is
taken. Except as otherwise expressly provided in Sections 4(b) and 4(c) below
or as required by law, the holders of Common Stock and Series G Preferred Stock
shall vote together as a single class in accordance with the preceding sentence,
and neither the Common Stock nor the Series G Preferred Stock shall be entitled
to vote as a separate class on any matter to be voted on by shareholders of the
Corporation.
(b) The Corporation shall not amend, alter or repeal the preferences,
privileges, special rights or other powers of the Series G Preferred Stock, as
set forth herein, in a manner adverse to the holders thereof, without the
affirmative vote of the holders of a majority of the then outstanding shares of
the Series G Preferred Stock, voting for this purpose as a single class of
stock.
(c) The Corporation shall not authorize or issue, or obligate itself
to issue, any other preferred equity security, whether junior or senior to or on
a parity with the Series G Preferred Stock as to dividend rights, redemption or
sinking fund rights, liquidation preferences, conversion rights, voting rights
or otherwise, without the affirmative vote of the holders of a majority of the
then outstanding shares of the Series G Preferred Stock, voting for this purpose
as a single class of stock.
Section 5. Conversion
----------
The holders of the Series G Preferred Stock shall have the following
conversion rights (the "Conversion Rights"):
(a) Optional Conversion. Each share of Series G Preferred Stock
-------------------
shall be convertible, without the payment of any additional consideration by the
holder thereof and at the option of the holder thereof, at any time after the
date which is 90 days after the first issuance of shares of Series G Preferred
Stock by the Corporation, at the office of the Corporation or any transfer agent
for the Common Stock, into such number of fully
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paid and nonassessable shares of Common Stock as is determined by dividing $6.40
by the Conversion Price, determined as hereinafter provided, in effect at the
time of conversion. The Conversion Price at which shares of Common Stock shall
be deliverable upon conversion without the payment of any additional
consideration by the holder thereof (the "Conversion Price") shall at the time
of the filing of this Certificate of Determination initially be $6.40 in the
case of the Series G Preferred Stock. Such initial Conversion Price shall be
subject to adjustment, in order to adjust the number of shares of Common Stock
into which the Series G Preferred Stock is convertible, as hereinafter provided.
(b) Automatic Conversion.
--------------------
(i) Each share of Series G Preferred Stock shall automatically
be converted into shares of Common Stock on that date which is three
years after the first issuance of shares of Series G Preferred Stock
by the Corporation.
(ii) Additionally, the Series G Preferred Stock shall be
automatically converted into shares of Common Stock upon the optional
conversion into Common Stock, pursuant to Section 5(a) above, of at
least sixty six and two-thirds percent (66-2/3%) of the cumulative
number of shares of Series G Preferred Stock theretofore issued by the
Corporation.
(c) Fractional Shares. No fractional shares of Common Stock shall be
-----------------
issued upon conversion of the Series G Preferred Stock. In lieu of any
fractional shares to which the holder would otherwise be entitled, the
Corporation shall pay cash equal to such fraction multiplied by the then
effective Conversion Price.
(d) Mechanics of Optional Conversion. Before any holder of Series G
--------------------------------
Preferred Stock shall be entitled to convert the same into full shares of Common
Stock, he or it shall surrender the certificate or certificates therefor,
endorsed or accompanied by written instrument or instruments of transfer, in
form satisfactory to the Corporation, duly executed by the registered holder or
by his attorney duly authorized in writing, at the office of the Corporation or
of any transfer agent for the Common Stock, and shall give written notice to the
Corporation at such office that such holder elects to convert the same and shall
state therein such holder's name or the names of the nominees in which such
holder wishes the certificate or certificates for shares of Common Stock to be
issued. The Corporation shall, as soon as practicable thereafter, issue and
deliver at such office to such holder of Series G Preferred Stock, or to his or
its nominee or nominees, a certificate or certificates for the number of shares
of Common Stock to which such holder shall be entitled as aforesaid, together
with cash in lieu of any fraction of a share. Such conversion shall be deemed
to have been made
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immediately prior to the close of business on the date of such surrender of the
shares of Series G Preferred Stock to be converted, and the person or persons
entitled to receive the shares of Common Stock issuable upon conversion shall be
treated for all purposes as the record holder or holders of such shares of
Common Stock on such date. From and after such date, all rights of the holder
with respect to the Series G Preferred Stock so converted shall terminate,
except only the right of such holder, upon the surrender of his or its
certificate or certificates therefor, to receive certificates for the number of
shares of Common Stock issuable upon conversion thereof and cash for fractional
shares.
(e) Mechanics of Automatic Conversion. All holders of record of
---------------------------------
shares of Series G Preferred Stock will be given at least 30 days' prior written
notice of the anticipated date of any automatic conversion referenced in Section
5(b) and four days' prior written notice of the actual date of such conversion.
The Corporation shall also exercise best efforts to provide four days telephonic
notice of such actual conversion date to said holders. Each such notice shall
designate a place for automatic conversion of all of the shares of such Series G
Preferred Stock pursuant to Section 5(b). Such notice will be sent by mail,
first class, postage prepaid, to each record holder of Series G Preferred Stock
at such holder's address appearing on the stock register. On or before the date
fixed for conversion, each holder of shares of Series G Preferred Stock shall
surrender his or its certificate or certificates for all such shares to the
Corporation at the place designated in such notice, and shall thereafter receive
certificates for the number of shares of Common Stock or other securities to
which such holder is entitled. On the date fixed for conversion, all rights
with respect to the Series G Preferred Stock will terminate, except only (1) any
rights to receive declared but unpaid dividends with a record date preceding the
date of conversion, and (2) the rights of the holders thereof, upon surrender of
their certificate or certificates therefor, to receive certificates for the
number of shares of Common Stock or other securities into which such Series G
Preferred Stock has been converted and cash for fractional shares. If so
required by the Corporation, certificates surrendered for conversion shall be
endorsed or accompanied by written instrument or instruments of transfer, in
form satisfactory to the Corporation, duly executed by the registered holder or
by his or its attorney duly authorized in writing. All certificates evidencing
shares of Series G Preferred Stock which are required to be surrendered for
conversion in accordance with the provisions hereof shall, from and after the
date such certificates are so required to be surrendered, be deemed to have been
retired and cancelled and the shares of Series G Preferred Stock represented
thereby converted into Common Stock for all purposes, notwithstanding the
failure of the holder or holders thereof to surrender such certificates on or
prior to such date. As soon as practicable after the date of such automatic
conversion and the surrender of the certificate
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or certificates for Series G Preferred Stock as aforesaid, the Corporation shall
cause to be issued and delivered to such holder, or to his or its written order,
a certificate or certificates for the number of full shares of Common Stock or
other securities issuable on such conversion in accordance with the provisions
hereof and cash as provided in Section 5(c) in respect of any fraction of a
share of Common Stock otherwise issuable upon such conversion.
(f) Certain Adjustments to Conversion Price for Stock Splits,
---------------------------------------------------------
Dividends, Mergers, Reorganizations, Etc.
- -----------------------------------------
(i) Adjustment for Stock Splits, Stock Dividends and Combinations
-------------------------------------------------------------
of Common Stock. In the event the outstanding shares of Common Stock
---------------
shall, after the filing of this Certificate of Determination, be
further subdivided (split), or combined (reverse split), by
reclassification or otherwise, or in the event of any dividend or
other distribution payable on the Common Stock in shares of Common
Stock, the applicable Conversion Price in effect immediately prior to
such subdivision, combination, dividend or other distribution shall,
concurrently with the effectiveness of such subdivision, combination,
dividend or other distribution, be proportionately adjusted.
(ii) Adjustment for Merger or Reorganization, Etc. In case of a
---------------------------------------------
reclassification, reorganization or exchange (other than described in
Subsection (i) above) or any consolidation or merger of the
Corporation with another corporation (other than a merger, acquisition
or other reorganization in which the Corporation is not the surviving
entity, any of which shall be considered a liquidation pursuant to
Section 3 above), each share of Series G Preferred Stock shall
thereafter be convertible into the number of shares of stock or other
securities or property to which a holder of the number of shares of
Common Stock of the Corporation deliverable upon conversion of the
Series G Preferred Stock would have been entitled upon such reclassi
fication, reorganization, exchange, consolidation, merger or
conveyance; and, in any such case, appropriate adjustment (as
determined by the Board) shall be made in the application of the
provisions herein set forth with respect to the rights and interests
thereafter of the holders of the Series G Preferred Stock, to the end
that the provisions set forth herein (including provisions with
respect to changes in and other adjustments of the applicable
Conversion Price) shall thereafter be applicable, as nearly as
reasonably may be, in relation to any shares of stock or other
property thereafter deliverable upon the conversion of the Series G
Preferred Stock.
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(iii) Adjustments for Other Dividends and Distributions. In the
-------------------------------------------------
event the Corporation at any time or from time to time after the
filing of this Certificate of Determination makes, or fixes a record
date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the
Company other than shares of Common Stock, then and in each such event
provision shall be made so that the holders of Series G Preferred
Stock shall receive upon conversion thereof, in addition to the number
of shares of Common Stock receivable thereupon, the amount of
securities of the Company which they would have received had their
Series G Preferred Stock been converted into Common Stock on the date
of such event and had they thereafter, during the period from the date
of such event to and including the conver sion date, retained such
securities receivable by them as aforesaid during such period, subject
to all other adjustments called for during such period under this
Section 5 with respect to the rights of the holders of the Series G
Preferred Stock.
(g) Adjustment to Conversion Price for Issue or Sale of Additional
--------------------------------------------------------------
Shares of Common Stock. In case at any time or from time to time on or after
- ----------------------
the filing of this Certificate of Determination the Corporation shall issue or
sell Additional Shares of Common Stock for a consideration per share less than
the Conversion Price of the Series G Preferred Stock then in effect, then and in
each such case the then Conversion Price of the Series G Preferred Stock shall
be reduced to an adjusted Conversion Price (computed to the nearest cent, a half
cent being treated as a full cent) by dividing
(A) the sum of (X) the result obtained by multiplying the number
of shares of Common Stock outstanding immediately prior to such issue
or sale by the Conversion Price then in effect, and (Y) the
consideration, if any, received by the Corporation upon such issue and
sale, by
(B) the number of shares of Common Stock outstanding immediately
after such issue or sale.
For purposes of adjusting the Conversion Price pursuant to the
foregoing clauses (A) and (B), Common Stock shall be deemed to be outstanding at
a particular time if it is outstanding at such time or if at such time (I) it
can be acquired upon the conversion of any then outstanding shares of Series G
Preferred Stock or (II) it can be purchased upon the exercise of any outstanding
rights or options, or acquired upon the conversion of any outstanding
Convertible Securities, or acquired upon the conversion of any Convertible
Securities which can be purchased upon the exercise of any outstanding rights or
options; provided, however, that for purposes of clause (II), the number of
shares
8
deemed outstanding shall be limited to such number of shares deemed outstanding
in respect of such rights, options and Convertible Securities under generally
accepted accounting principles for purposes of computing fully diluted earnings
per share.
(h) Further Provisions for Adjustment of Conversion Price. For the
-----------------------------------------------------
purpose of Section 5(g) above, the following provisions shall be applicable:
(A) Issuance or Sale of Convertible Securities. In case at any
------------------------------------------
time on or after the filing of this Certificate of Determination, the
Corporation shall issue or sell any Convertible Securities, there
shall be determined as of the date of issue the price per share for
which Additional Shares of Common Stock are issuable upon the
conversion or exchange thereof, such determination to be made by
dividing (X) the total amount received or receivable by the
Corporation as consideration for the issue or sale of such Convertible
Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Corporation upon the conversion
or exchange thereof, by (Y) the maximum number of Additional Shares of
Common Stock issuable upon conversion or exchange of all of such
Convertible Securities; and such issue or sale shall be deemed to be
an issue or sale for cash (as of the date of issue or sale of such
Convertible Securities) of such maximum number of Additional Shares of
Common Stock at the price per share so determined.
If such Convertible Securities shall by their terms provide for
an increase or increases, with the passage of time, in the amount of
additional consideration, if any, payable to the Corporation, or in
the rate of exchange, upon the conversion or exchange thereof, the
adjusted Conversion Price shall, forthwith upon any such increase
becoming effective, be readjusted (but to no greater extent than
originally adjusted) to reflect the same.
If any rights of conversion or exchange evidenced by such
Convertible Securities shall expire without having been exercised, the
adjusted Conversion Price shall forthwith be readjusted to be the
adjusted Conversion Price which would have been in effect had an
adjustment been made on the basis that the only Additional Shares of
Common Stock issued or sold were those actually issued upon the
conversion or exchange of such Convertible Securities, and that they
were issued or sold for the consideration actually received by the
Corporation upon such conversion or exchange, plus the consideration,
if any, actually received by the
9
Corporation for the issue or sale of such Convertible Securities as
were actually converted or exchanged.
(B) Grant of Rights or Options for Common Stock. In case at any
-------------------------------------------
time on or after the filing of this Certificate of Determination, the
Corporation shall grant any rights or options to subscribe for,
purchase or otherwise acquire Additional Shares of Common Stock, there
shall be determined as of the date of issue the price per share for
which Additional Shares of Common Stock are issuable upon the exercise
of such rights or options, such determination to be made by dividing
(X) the total amount, if any, received or receivable by the
Corporation as consideration for the granting of such rights or
options, plus the minimum aggregate amount of additional consideration
payable to the Corporation upon the exercise of such rights or
options, by (Y) the maximum number of Additional Shares of Common
Stock of the Corporation issuable upon the exercise of such rights or
options; and the granting of such rights or options shall be deemed to
be an issue or sale for cash (as of the date of the granting of such
rights or options) of such maximum number of Additional Shares of
Common Stock at the price per share so determined.
If such rights or options shall by their terms provide for an
increase or increases, with the passage of time, in the amount of
additional consideration payable to the Corporation upon the exercise
thereof, the adjusted Conversion Price shall, forthwith upon any such
increase becoming effective, be readjusted (but to no greater extent
than originally adjusted) to reflect the same.
If any such rights or options shall expire without having been
exercised, the adjusted Conversion Price shall forthwith be readjusted
to be the adjusted Conversion Price which would have been in effect
had an adjustment been made on the basis that the only Additional
Shares of Common Stock so issued or sold were those actually issued or
sold upon the exercise of such rights or options and that they were
issued or sold for the consideration actually received by the
Corporation upon such exercise, plus the consideration, if any,
actually received by the Corporation for the granting of all such
rights or options, whether or not exercised.
(C) Grant of Rights or Options for Convertible Securities. In
-----------------------------------------------------
case at any time on or after the filing of this Certificate of
Determination the Corporation shall grant any rights or options to
subscribe for, purchase or otherwise acquire Convertible Securities,
such Convertible Securities shall be deemed, for the purposes of such
Section 5, to have been issued and sold
10
(as of the date of the granting of such option or rights) for the
total amount received or receivable by the Corporation as
consideration for the granting of such rights or options plus the
minimum aggregate amount of additional consideration, if any, payable
to the Corporation upon the exercise of such rights or options.
If such rights or options shall by their terms provide for an
increase or increases, with the passage of time, in the amount of
additional consideration payable by the Corporation upon the exercise
thereof, the adjusted Conversion Price shall, forthwith upon any such
increase becoming effective, be readjusted (but to no greater extent
than originally adjusted) to reflect the same.
If any such rights or options shall expire without having been
exercised, the adjusted Conversion Price shall forthwith be readjusted
to be the adjusted Conversion Price which would have been in effect
had an adjustment been made on the basis that the only Convertible
Securities so issued or sold were those actually issued or sold upon
the exercise of such rights or options and that they were issued or
sold for the consideration actually received by the Corporation upon
such exercise, plus the consideration, if any, actually received by
the Corporation for the granting of all such rights or options,
whether or not exercis
(D) Determination of Consideration. Upon any issuance or sale
------------------------------
for a consideration other than cash, or a consideration part of which
is other than cash, of any Additional Shares of Common Stock or
Convertible Securities or any rights or options to subscribe for,
purchase or otherwise acquire any Additional Shares of Common Stock or
Convertible Securities, the amount of the consideration other than
cash received by the Corporation shall be deemed to be the fair value
of such consideration as determined in good faith by the Board. In
case any Additional Shares of Common Stock or Convertible Securities
or any rights or options to subscribe for, purchase or otherwise
acquire any Additional Shares of Common Stock or Convertible
Securities shall be issued or sold together with other stock or
securities or other assets of the Corporation for a consideration
which covers two or more thereof, the consideration for the issue or
sale of such Additional Shares of Common Stock or Convertible
Securities or such rights or options shall be deemed to be the portion
of such consideration allocated thereto in good faith by the Board.
(E) Shares Considered Outstanding. The number of shares of
-----------------------------
Common Stock outstanding at any given time
11
shall include shares issuable in respect of scrip certificates issued
in lieu of fractions of shares of Common Stock.
(F) Duration of Adjusted Conversion Price. Following each
-------------------------------------
computation or readjustment of an adjusted Conversion Price as
provided above in this Section 5, the new adjusted Conversion Price
shall remain in effect until a further computation or readjustment
thereof is required by this Section 5.
(G) Other Action Affecting Common Stock. In case after the
-----------------------------------
filing of this Certificate of Determination the Corporation shall take
any action affecting its shares of Common Stock, other than an action
described above in this Section 5, which in the good faith opinion of
the Board would have a materially adverse effect upon the conversion
rights of the Series G Preferred Stock granted herein, the Conversion
Price shall be adjusted in such manner and at such time as the Board
may in good faith determine to be equitable in the circumstances.
(i) Certificate as to Adjustments. Upon the occurrence of each
-----------------------------
adjustment or readjustment of the Conversion Price pursuant to this Section 5,
the Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of
Series G Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in reasonable detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon the written
request, at any time, of any holder of Series G Preferred Stock, furnish or
cause to be furnished to such holder a like certificate setting forth: (i) such
adjustments and readjustments; (ii) the applicable Conversion Price at the time
in effect; and (iii) 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 the Series G Preferred Stock.
(j) Notices of Record Date. In the event of any taking by the
----------------------
Corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend which is the same as cash dividends paid in
previous quarters) or other distribution, any capital reorganization of the
Corporation, any reclassification or recapitalization of the Corporation's
capital stock, any consolidation or merger with or into another corporation, any
transfer of all or substantially all of the assets of the Corporation or any
dissolution, liquidation or winding up of the Corporation, the Corporation shall
mail to each holder of Series G Preferred Stock at least ten (10) days prior to
the date specified for the taking of a record, a notice specifying the date on
which any such record is to be taken for the purpose of such dividend or
distribution.
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(k) Common Stock Reserved. The Corporation shall reserve and keep
---------------------
available out of its authorized but unissued Common Stock such number of shares
of Common Stock as shall from time to time be sufficient to effect conversion of
the Series G Preferred Stock.
(l) Payment of Taxes. The Corporation will pay all taxes (other than
----------------
taxes based upon income) and other governmental charges that may be imposed with
respect to the issue or delivery of shares of Common Stock upon conversion of
shares of Series G Preferred Stock, other than any tax or other charge imposed
in connection with any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that in which the shares of Series G Preferred
Stock so converted were registered.
4. The number of shares designated as Series G Preferred Stock is
3,125,000, and none of such shares has been issued.
The undersigned each further declares under penalty of perjury under
the laws of the State of California that the matters set forth in this
certificate are true and correct of his own knowledge and that this certificate
has been executed on June 3, 1997 in Chatsworth, California.
/s/ Gregor A. Campbell
------------------------------
Gregor A. Campbell, President
/s/ John LaValle
------------------------------
John LaValle, Secretary
164174.2
13
CERTIFICATE OF CORRECTION
OF
CERTIFICATE OF OWNERSHIP
OF
TRIKON TECHNOLOGIES, INC.
(formerly Plasma & Materials Technologies, Inc.)
Gregor A. Campbell hereby certifies as follows:
1. He is the Vice President and Assistant Secretary of Trikon
Technologies, Inc., a California corporation, formerly named Plasma & Materials
Technologies, Inc. (the "Corporation"). He is also the Chief Executive Officer
of the Corporation.
2. The certificate being hereby corrected by the filing of this
Certificate of Correction is the Certificate of Ownership of the Corporation
filed with the California Secretary of State on March 31, 1997 (the "Certificate
of Ownership").
3. The execution of the Certificate of Ownership was defective in
that, at the time of executing the Certificate of Ownership (and at the
present), Gregor A. Campbell was not and is not the President of the
Corporation. However, John LaValle, who signed the Certificate of Ownership as
Secretary, was also a Vice President of the Corporation at the time of signing.
4. This Certificate of Correction of Certificate of Ownership does
not alter the wording of the resolutions set forth in the Certificate of
Ownership which were in fact adopted by the Board of Directors of the
Corporation. The Board of Directors of the Corporation duly adopted each and
all of the resolutions set forth in the Certificate of Ownership being hereby
corrected and all other matters set forth in the Certificate of Ownership
(except only as specified in paragraph (3) above) were true and correct when
filed.
The undersigned further declares under penalty of perjury under the
laws of the State of California that the matters set forth in this Certificate
are true and correct of his own knowledge and that this Certificate has been
executed on June 19, 1997 in Chatsworth, California.
/s/ Gregor A. Campbell
___________________________________
Gregor A. Campbell, Vice President
and Assistant Secretary
CERTIFICATE OF CORRECTION
OF
CERTIFICATE OF DETERMINATION
OF
TRIKON TECHNOLOGIES, INC.
Gregor A. Campbell hereby certifies as follows:
1. He is the Vice President and Assistant Secretary of Trikon
Technologies, Inc., a California corporation (the "Corporation"). He is also
the Chief Executive Officer of the Corporation.
2. The certificate being hereby corrected by the filing of this
Certificate of Correction is the Certificate of Determination of Trikon
Technologies, Inc. filed with the California Secretary of State on June 5, 1997
(the "Certificate of Determination").
3. The execution of the Certificate of Determination was defective
in that, at the time of executing the Certificate of Determination (and at the
present), Gregor A. Campbell was not and is not the President of the
Corporation. However, John LaValle, who signed the Certificate of
Determintation as Secretary, was also a Vice President of the Corporation at
such time of signing.
4. This Certificate of Correction does not alter the wording of the
resolutions set forth in the Certificate of Determination which were in fact
adopted by the Board of Directors of the Corporation. The Board of Directors of
the Corporation duly adopted each and all of the resolutions set forth in the
Certificate of Determination being hereby corrected and all other matters set
forth in the Certificate of Determination (except only as specified in paragraph
(3) above) are true and correct.
The undersigned further declares under penalty of perjury under the
laws of the State of California that the matters set forth in this Certificate
are true and correct of his own knowledge and that this Certificate has been
executed on June 19, 1997 in Chatsworth, California.
/s/ Gregor A. Campbell
___________________________________
Gregor A. Campbell, Vice President
and Assistant Secretary
AMENDMENT TO CERTIFICATE OF DETERMINATION
OF
TRIKON TECHNOLOGIES, INC.
Gregor A. Campbell hereby certifies as follows:
1. He is the Vice President and Assistant Secretary of Trikon
Technologies, Inc., a California corporation (the "Corporation").
2. On June 5, 1997, the Corporation filed a Certificate of
Determination with the California Secretary of State setting forth certain
resolutions adopted by the Board of Directors of the Corporation establishing
the Series G Preferred Stock of the Corporation (the "Certificate of
Determination"). Subsequent to the filing of the Certificate of Determination,
the Corporation filed a Certificate of Correction correcting the defective
execution of the Certificate of Determination.
3. Subsequent to the filing of the Certificate of Determination, but
before the issuance of any shares of Series G Preferred Stock, the Board of
Directors of the Corporation duly adopted the following resolutions:
RESOLVED, that Section 3(a) (including the Section identification
thereof) of the resolutions establishing the rights, preferences,
privileges and restrictions granted to and imposed upon the Series G
Preferred Stock and the holders thereof as set forth in the Certificate of
Determination filed with the California Secretary of State on June 5, 1997
(the "Series G Resolutions") is hereby amended in full to read as follows:
"Section 3. Liquidation, Dissolution or Winding Up
--------------------------------------
(a) In the event of a voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, including a merger,
acquisition or other reorganization in which the Corporation is not the
surviving entity, all assets or surplus funds of the Corporation shall be
distributed to the holders of the Common Stock and the Series G Preferred
Stock in the following manner and order of priority:
(i) First, ratably among the holders of the Series G Preferred
-----
Stock until such holders have received a dollar amount per share equal
to the cash purchase price for which the first share of Series G
Preferred Stock is issued and sold by the Corporation (the "Original
Issue Price");
(ii) Second, ratably among the holders of the Common Stock until
------
such holders have received an
amount per share equal to the Original Issue Price; and
(iii) Third, to the holders of the Common Stock and the Series G
-----
Preferred Stock on a pro rata basis according to the number of shares
of Common Stock (A) then held, with respect to the Common Stock, and
(B) into which the shares of Series G Preferred Stock then held are
convertible, in the case of the Series G Preferred Stock.
No adjustment to the Conversion Price pursuant to this Certificate of
Determination shall alter the above liquidation preference dollar amounts."
RESOLVED FURTHER, that Section 5(a) of the Series G Resolutions
(including the Section identification and lead-in language thereto) is
hereby amended in full to read as follows:
"Section 5. Conversion
----------
The holders of the Series G Preferred Stock shall have the following
conversion rights (the "Conversion Rights"):
(a) Optional Conversion. Each share of Series G Preferred Stock
-------------------
shall be convertible, without the payment of any additional consideration
by the holder thereof and at the option of the holder thereof, at any time
after the date which is 90 days after the first issuance of shares of
Series G Preferred Stock by the Corporation, at the office of the
Corporation or any transfer agent for the Common Stock, into such number of
fully paid and nonassessable shares of Common Stock as is determined by
dividing the Original Issue Price by the Conversion Price, determined as
hereinafter provided, in effect at the time of conversion. The Conversion
Price at which shares of Common Stock shall be deliverable upon conversion
without the payment of any additional consideration by the holder thereof
(the "Conversion Price") shall at the time of the filing of this
Certificate of Determination initially be the Original Issue Price in the
case of the Series G Preferred Stock. Such initial Conversion Price shall
be subject to adjustment, in order to adjust the number of shares of Common
Stock into which the Series G Preferred Stock is convertible, as
hereinafter provided."
4. None of the Series G Preferred Stock has been issued.
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The undersigned further declares under penalty of perjury under the
laws of the State of California that the matters set forth in this Certificate
are true and correct of his own knowledge and that this Certificate has been
executed on June 20, 1997 in Chatsworth, California.
/S/ GREGOR A. CAMPBELL
----------------------------------
Gregor A. Campbell, Vice President
and Assistant Secretary
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