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Exhibit 3.1
THE COMMONWEALTH OF MASSACHUSETTS
MICHAEL JOSEPH CONNOLLY
Secretary of State Federal Identification
One Ashburton Place, Boston, Mass. 02108 No. 04-2987600
RESTATED ARTICLES OF ORGANIZATION
GENERAL LAWS, CHAPTER 156B, SECTION 74
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
restated articles of organization. The fee for filing this certificate is
prescribed by General Laws, Chapter 156B, Section 144. Make check payable to
the Commonwealth of Massachusetts.
We, Geoffrey Ryding , President and
Debra L. Carroll , Clerk of
Ibis Technology Corporation ,
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(Name of Corporation)
located at 32A CHERRY HILL DRIVE, DANVERS, MA 01923 , do hereby certify
that the following restatement of the articles of organization of the
corporation was duly adopted at a meeting held on December 20, 1993, by a
vote of
148,694 shares of COMMON of 184,602 shares outstanding
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(Class of Stock)
47,500 shares of CLASS A PREFERRED of 47,500 shares outstanding
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(Class of Stock)
141,672 shares of CLASS B PREFERRED of 141,672 shares outstanding, and
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(Class of Stock)
673,147 shares of CLASS C PREFERRED of 673,147 shares outstanding
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being at least two-thirds of each class of stock outstanding and entitled to
vote and of each class or series of stock adversely affected thereby:
1. The name by which the corporation shall be known is:
Ibis Technology Corporation
2. The purposes for which the corporation is formed are as follows:
To manufacture, process, buy, sell, develop, service, research and
otherwise deal in semiconductors and related equipment. See attached
Continuation Sheet 2A.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on separate 8 1/2 x 11 sheets of
paper leaving a left hand margin of at least 1 inch for binding. Additions to
more than one article may be continued on a single sheet so long as each
article requiring each such addition is clearly indicated.
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3. The total number of shares and the par value, if any, of each class
of stock which the corporation is authorized to issue is as follows:
<TABLE>
<CAPTION>
WITHOUT PAR VALUE WITH PAR VALUE
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CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
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<S> <C> <C> <C>
PREFERRED 2,000,000 $.01
COMMON 10,000,000 $.008
</TABLE>
*4. If more than one class is authorized, a description of each of
the different classes of stock with, if any, the preferences, voting
powers, qualifications, special or relative rights or privileges as to
each class thereof and any series now established:
See attached Continuation Sheet 4A.
*5. The restrictions, if any, imposed by the articles of
organization upon the transfer of shares of stock of any class are as
follows:
None.
*6. Other lawful provisions, if any, for the conduct and
regulation of the business and affairs of the corporation, for its voluntary
dissolution, or for limiting, defining, or regulating the powers of the
corporation, or of its directors or stockholders, or of any class of
stockholders:
See attached Continuation Sheet 6A.
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*If there are no such provisions, state "None".
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Continuation Sheet 2A
To carry on any one or more manufacturing, mercantile or commercial
businesses.
To lend money or credit to, and to aid in any other manner,
corporations, joint-stock companies, trusts, business trusts, associations,
firms, other entities and persons any obligation of which or any interest in
which, this corporation holds, or in the affairs or property of which this
corporation has a lawful interest, and to do all acts and things to protect,
improve or enhance the value of any such obligation or interest; to
guarantee, or to secure by mortgage or through lien upon all or any part of
the assets of this corporation, payment of principal, interest and dividends
upon any stocks, shares, bonds, notes or other evidences of interest in or
indebtedness of, and performance of any other contract or obligation by, such
corporations, joint-stock companies, trusts, business trusts, associations,
firms, other entities or persons.
To be a partner in any enterprise permitted by law.
To carry on in connection with the foregoing any other business
advantageous to the business of the corporation, and, in general, to do every
act and thing, and carry on every other business whatsoever, convenient or
proper for accomplishment of the purposes, or for carrying on of the business
of, the corporation, and to exercise all the powers conferred upon business
corporations by the laws of the Commonwealth of Massachusetts.
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Continuation Sheet 4A
ARTICLE 4
The authorized classes of capital stock of the Corporation shall be
designated, respectively, the Common Stock, $.01 par value (the "Common
Stock") and the Preferred Stock, $.01 par value (the "Preferred Stock").
1. PREFERRED STOCK
The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of this Article 4, to provide for the
issuance from time to time of the shares of Preferred Stock in one or more
series, and, by filing a certificate pursuant to the applicable law of the
Commonwealth of Massachusetts (the "Certificate of Designation"), to
establish from time to time the number of shares to be included in each such
series and to fix the designation, preferences, voting powers, qualifications
and special or relative rights or privileges of the shares of each such
series. In the event that at any time the Board of Directors shall have
established and designated one or more series of Preferred Stock consisting
of a number of shares less than all of the authorized number of shares of
Preferred Stock, the remaining authorized share so Preferred Stock shall be
deemed to be shares of an undesignated series of Preferred Stock until
designated by the Board of Directors as being a part of a series previously
established or a new series then being established by the Board of Directors.
Notwithstanding the fixing of the number of shares constituting a particular
series, the Board of Directors may at any time thereafter authorize the
issuance of additional shares of the same series except as set forth in the
Certificate of Designation. The authority of the Board of Directors with
respect to each series of Preferred Stock shall include, but not be limited
to, determination of the following:
(i) The number of shares constituting that series and the
distinctive designation of that series, and whether
additional shares of that series may be issued;
(ii) Whether any dividends shall be paid on shares of that
series, and, if so, the dividend rate on the shares
of that series; whether dividends shall be cumulative
and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of
dividends on shares of that series;
(iii) whether shares of that series shall have voting
rights in addition to the voting rights provided by
law and, if so, the terms of such voting rights;
(iv) whether shares of that series shall be convertible
into shares of Common Stock or another security and,
if so, the terms and conditions of such conversion,
including provisions for adjustment of the conversion
rate in such events as the Board of Directors shall
determine;
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(v) whether or not the shares of that series shall be
redeemable and, if so, the terms and conditions of
such redemption, including the date or dates upon or
after which they shall be redeemable and the amount
per share payable in case of redemption, which amount
may vary under different conditions and the different
redemption dates; and whether that series shall have
a sinking fund for the redemption or purchase of
shares of that series and, if so, the terms and
amount of such sinking fund;
(vi) whether, in the event of purchase or redemption of
the shares of that series, any shares of that series
shall be restored to the status of authorized but
unissued shares of shall have such other status as
shall be set forth in the Certificate of Designation;
(vii) the rights of the shares of that series in the event
of the sale, conveyance, exchange or transfer of all
or substantially all of the property and assets of
the Corporation, or the merger or consolidation of
the Corporation into or with any other corporation,
or the merger of any other corporation into it, or
the voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, and the relative
rights of priority, if any, of share shares of that
series to payment in any such event;
(viii) whether the shares of that series shall carry any
preemptive right in or preemptive right to subscribe
to any additional shares of Preferred Stock or any
shares of any other class of stock which may at any
time be authorized or issued, or any bonds,
debentures or other securities convertible into
shares of stock of any class of the Corporation, or
options or warrants carrying rights to purchase such
shares or securities; and
(ix) any other designation, preferences, voting powers,
qualifications, and special or relative rights or
privileges of the shares of that series.
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Continuation Sheet 6A
ARTICLE 6
A. CERTAIN TRANSACTIONS APPROVED BY THE BOARD OF DIRECTORS
Except as otherwise provided in these Restated Articles of
Organization, the Corporation may authorize, by a vote of a majority of the
shares of each class of stock outstanding and entitled to vote thereon, (a)
the sale, lease or exchange of all or substantially all of its property and
assets, including its goodwill, upon such terms and conditions as it deems
expedient, and (b) the merger or consolidation of the Corporation or any
Subsidiary with or into any other corporation, provided, however, that such
sale, lease, exchange, merger or consolidation shall have been approved by a
majority of the members of the Board of Directors.
B. LIMITATION OF LIABILITY OF DIRECTORS
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director notwithstanding any provision of law imposing such
liability; provided, however, that this Article shall not eliminate or limit
any liability of a director (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 61 or 62 of the Massachusetts Business
Corporation Law, or (iv) with respect to any transaction from which the
director derived an improper personal benefit.
The provisions of this Article shall not eliminate or limit the
liability of a director of this Corporation for any act or omission occurring
prior to the date on which this Article became effective, provided, however,
that neither any provision of this Article nor the adoption of this Article
shall affect the effectiveness of any predecessor provision of these Restated
Articles of Organization pertaining to the elimination or limitation of the
liability of a director of this Corporation for any act or omission occurring
prior to the date on which this Article shall adversely affect the rights and
protection afforded to a director of this Corporation under this Article for
acts or omissions occurring prior to such amendment or repeal.
If the Massachusetts Business Corporation Law is subsequently
amended to further eliminate or limit the personal liability of directors or
to authorize corporation action to further eliminate or limit such liability,
then the liability of the directors of this Corporation shall, without any
further action of the Board of Directors or the stockholders of this
Corporation, be eliminated or limited to the fullest extent permitted by the
Massachusetts Business Corporation Law as so amended.
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C. RELATED PARTY DEALINGS
The Corporation may enter into contracts or transact business with
one or more of its directors, officers, stockholders or employees or with any
corporation, organization or other concern in which one or more of its
directors, officers, stockholders or employees are directors, officers,
stockholders or employees or are otherwise interested and may enter into
other contracts or transactions in which one or more of its directors,
officers, stockholders or employees are in any way interested. In the absence
of fraud, no such contract or transaction shall be invalidated or in any way
affected by the fact that such one or more of the directors, officers,
stockholders or employees of the Corporation have or may have any interest
which is or might be adverse to the interest of the Corporation even though
the vote or action of directors, officers, stockholders or employees having
such adverse interest may have been necessary to obligate the Corporation
upon such contract or transaction.
At any meeting of the Board of Directors of the Corporation (or of
any duly authorized committee thereof) at which any such contract or
transaction shall be authorized or ratified, any such director or directors
may vote or act thereat with like force and effect as if he had not such
interest, provided in such case that the nature of such interest (though not
necessarily the extent or details thereof) shall be disclosed or shall have
been known to the directors. A general notice that a director, officer,
stockholder or employee is interested in any corporation or other concern of
any kind referred to above shall be a sufficient disclosure as to the
interest of such director, officer, stockholder or employee with respect to
all contracts and transactions with such corporation or other concern. No
person shall be disqualified from holding office as a director or an officer
of the Corporation by reason of any such adverse interest, unless the Board
of Directors shall determine that such adverse interest is detrimental to the
Corporation. In the absence of fraud, no director, officer, stockholder or
employee having such adverse interest shall be liable on account of such
adverse interest to the Corporation or to any stockholder or creditor thereof
or to any other person for any loss incurred by it under or by reason of such
contract or transaction, nor shall any such director, officer, stockholder or
employee be accountable on such ground for any gains or profits realized
thereon.
D. CLASSIFIED BOARD
(1) The business and affairs of the Corporation shall be managed by
a Board of Directors. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, the number of members of the Board of
Directors shall not be less than three and shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the whole Board of Directors. On or prior to the date on which
the Corporation first provides notice of an annual meeting of the
stockholders (or a special meeting in lieu thereof) in 1994, the Board of
Directors of the Corporation shall divide the directors nominated for
election at such meeting into three classes, as nearly equal in number as
reasonably possible, with the term of office of the first class to expire at
the 1995 annual meeting of stockholders or any special meeting in lieu
thereof and until their successors are duly elected and qualified, the term
of office of the second class to expire at the 1996 annual meeting of
stockholders or any special meeting in lieu thereof and until their
successors are duly elected and qualified, and the term of office of the
third class to expire at the 1997 annual meeting of stockholders or any
special meeting in lieu thereof and until their successors are duly elected
and qualified. At each annual meeting of stockholders or special meeting in
lieu thereof following such
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initial classification, directors elected to succeed those directors whose
terms expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders or special meeting in lieu thereof
after their election and until their successors are duly elected and
qualified.
(2) Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board
of Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause may be filled only by a majority vote of
the directors then in office even though less than a quorum, or by a sole
remaining director. In the event of any increase or decrease in the
authorized number of directors, (i) each director then serving as such shall
nevertheless continue as a director of the class of which he is a member
until the expiration of his current term or his prior death, retirement,
removal or resignation and (ii) the newly created or eliminated directorships
resulting from such increase or decrease shall be apportioned by the Board of
Directors among the three classes of directors so as to ensure that no one
class has more than one director more than any other class. To the extent
possible, consistent with the foregoing rule, any newly created directorships
shall be added to those classes whose terms of office are to expire at the
latest dates following such allocation and newly eliminated directorships
shall be subtracted from those classes whose terms of office are to expire at
the earliest dates following such allocation, unless otherwise provided for
from time to time by resolution adopted by a majority of the directors then
in office, although less than a quorum. In the event of a vacancy in the
Board of Directors, the remaining directors, except as otherwise provided by
law, may exercise the powers of the full Board of Directors until the vacancy
is filled.
(3) Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any director, or the entire Board of Directors, may
be removed from office (i) for cause only at any time by the affirmative vote
of the holders of at least seventy-five percent (75%) of the voting power of
all of the then outstanding shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single class or
(ii) with or without cause by the affirmative vote of at least two-thirds
(2/3) of the directors then serving. "Cause" with respect to the removal of
any director shall mean only (i) conviction of a felony, (ii) declaration of
unsound mind by order of court, (iii) gross dereliction of duty, (iv)
commission of an action involving moral turpitude or (v) commission of an
action which constitutes intentional misconduct or a knowing violation of law
if such action in either event results both in an improper substantial
personal benefit and a material injury to the Corporation. A director may be
removed for cause only after a reasonable notice and an opportunity to be
heard before the body proposing to remove him.
E. PLACE OF MEETINGS OF STOCKHOLDERS
Meetings of stockholders of the Corporation may be held anywhere in
the United States to the extent permitted by the By-Laws.
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F. PARTNERSHIP IN ANY BUSINESS ENTERPRISE
The Corporation may be a partner in any business enterprise
organized for the purpose of accomplishing any of the purposes contained in
these Restated Articles of Organization.
G. MAKING, AMENDING AND REPEALING BY-LAWS OR RESTATED ARTICLES OF
ORGANIZATION
The directors of the Corporation shall have power to make, alter,
amend and repeal the By-Laws of the Corporation in whole or in part, except
with respect to any provision thereof which by law or these Restated Articles
of Organization or such By-Laws requires action by the stockholders, who
shall also have power to make, alter, amend and repeal the By-Laws of the
Corporation. Any By-Laws made by the directors under the powers conferred
hereby may be altered, amended, or repealed by the directors or the
stockholders. Notwithstanding the foregoing and anything contained in these
Restated Articles of Organization to the contrary, (i) Articles I, II and VI
and Section 9 of Article V of the By-Laws, and (ii) Article 4 with respect to
the Undesignated Preferred Stock and Article 6B, Article 6D and this Article
6G shall not be altered, amended or repealed by the stockholders, and no
provision inconsistent therewith or herewith shall be adopted by the
stockholders, without the affirmative vote of the holders of at least
seventy-five percent (75%) of the voting power of all shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class. In addition, notwithstanding the foregoing and
anything contained in these Restated Articles of Organization to the
contrary, the number of authorized shares of Common Stock or the number of
authorized shares of Preferred Stock set fourth in Article 3 shall not be
reduced or eliminated unless approved by the affirmative vote of the holders
of at least seventy-five percent (75%) of the voting power of all shares of
the Corporation entitled to vote generally in the election of directors,
voting together as a single class, except for the termination of the Class A
Preferred Stock, the Class B Preferred Stock and the Class C Preferred Stock,
which are authorized as of the effective date of these Restated Articles of
Organization.
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*We further certify that the foregoing restated articles of
organization effect no amendments to the articles of organization of the
corporation as heretofore amended, except amendments to the following
articles.
(*If there are no such amendments, state: "None".)
Briefly describe amendments in space below:
Article 3 - To eliminate Class A (Series1) Preferred Stock, Class A (Series 2)
Preferred Stock, Class B Preferred Stock and Class C Preferred
Stock.
Article 4 - To eliminate the powers, preferences, voting and other rights,
qualifications, limitations and restrictions of or applicable to
the Class A (Series 1) Preferred Stock, Class A (Series 2)
Preferred Stock, Class B Preferred Stock and Class C Preferred
Stock and all references to such classes of Preferred Stock
therein.
Article 5 - To eliminate the Preemptive Rights provisions therein.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 1st day of June in the year 1994,
/s/ Geoffrey Ryding , President
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/s/ Debra L. Carroll , Clerk
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THE COMMONWEALTH OF MASSACHUSETTS
RESTATED ARTICLES OF ORGANIZATION
(GENERAL LAWS, CHAPTER 156B, SECTION 74)
I hereby approve the within restated articles of
organization and, the filing fee in the amount of
$500.00 having been paid, said articles are
deemed to have been filed with me this 23rd
day of June, 1994.
/s/ Michael Joseph Connolly
MICHAEL JOSEPH CONNOLLY
SECRETARY OF STATE
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF RESTATED ARTICLES OF ORGANIZATION TO BE SENT TO:
Richard A. Goldman, Esquire
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Telephone (617) 542-6000
