Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Mks Instruments, Inc. 90 439K
2: EX-3.1 Restated Articles of Organization 36 92K
3: EX-3.2 Amended and Restated Articles or Organization 16 46K
4: EX-3.4 Amended and Restated Bylaws 16 59K
7: EX-10.11 Loan Agreement Dated November 11, 1993 101 293K
8: EX-10.13 Loan Agreement Dated February 23, 1996 94 300K
9: EX-10.17 Comprehensive Supplier Agreement 121 315K
10: EX-10.18 Management Incentive Program 2 12K
5: EX-10.4 1999 Employee Stock Purchase Plan 6 28K
6: EX-10.9 Loan Agreement Dated October 31, 1995 47 154K
11: EX-23.2 Consent of Pricewaterhousecoopers LLP 1 7K
12: EX-27 Financial Data Schedule 1 7K
EXHIBIT A
LM
------------ The Commonwealth of Massachusetts EXHIBIT 3.1
Examiner
MICHAEL JOSEPH CONNOLLY
Secretary of State
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
FEDERAL IDENTIFICATION No. 04-2277512
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 114. Make check payable to the
Commonwealth of Massachusetts.
-------------
We, John R. Bertucci, President, and
Richard S. Chute, Clerk of
MKS Instruments, Inc.
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(Name of Corporation)
located at 34 Third Avenue, Burlington, Massachusetts 01803
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do hereby certify that the following restatement of the articles of organization
of the corporation was duly adopted and authorized by unanimous written consent
of all the Directors dated January 15, 1982.
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1. The name by which the corporation shall be known is:
MKS Instruments, Inc.
2. The purposes for which the corporation is formed are as follows:
See Continuation Sheets 2A and 2B.
12
----------
P.C.
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.
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:
[Download Table]
WITHOUT PAR VALUE WITH PAR VALUE
----------------- --------------
CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
-------------- ---------------- ---------------- ---------
Preferred None None None
Class A Common 10,000 None None
Class B Common 10,000 None None
*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 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:
See Continuation Sheets 5A, 5B, 5C and 5D.
*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 Continuation Sheet 6A.
*If there are no such provisions state "None".
Continuation Sheet 2A
2. The purposes for which the corporation is formed are as follows:
To design, manufacture, sell, lease and license instruments of all kinds,
including electromechanical, electronic and mechanical gauges for the
measurement of pressure, temperature, acceleration, flow and level of liquids
and gases; to design, manufacture, sell, lease and license control systems
incorporating measuring devices, and control systems separate from measuring
devices, for the control of production processes and operations of all kinds; to
design, manufacture, sell, lease and license instrumentation for military use;
to design, manufacture, sell, lease and license instrumentation for use in
research laboratories, in industry, in educational institutions, for medical
purposes and for use elsewhere and for other purposes; and in general to design,
manufacture, sell, lease and license electro-mechanical, electronic and
mechanical devices of all kinds.
To buy and sell at wholesale and retail, or otherwise, to manufacture,
produce, adapt, repair, dispose of, export, import and in any other manner to
deal in goods, wares, merchandise, articles and things of manufacture or
otherwise of all materials, supplies and other articles and things necessary or
convenient for use in connection with any of said businesses or any other
business or any part thereof; and to manufacture, repair, purchase, sell, lease,
dispose of and otherwise deal in machinery, tools, and appliances which are or
may be used in connection with the purchase, sale, production, adaption, repair,
disposition of, export, import or other dealings in said goods, wares,
merchandise, articles and things.
To purchase, lease or otherwise acquire as a going concern or otherwise all
or any part of the franchises, rights, property, assets, business, good will or
capital stock of any persons, firm, corporation, trust or association engaged in
whole or in part in any business in which this corporation is empowered to
engage, or in any other business; to pay for the same in whole or in part in
cash, stock, bonds, notes, securities or other evidence of indebtedness of this
corporation or in any other manner; to assume as part of the consideration or
otherwise any and all debts, contracts or liabilities, matured or unmatured,
fixed or contingent, of any such person, firm or corporation, trust or
association; and to operate, manage, develop and generally to carry on the whole
or any part of any such business under any name or names which it may select or
designate.
Continuation Sheet 2B
To construct, lease, hire, purchase or otherwise acquire and hold or
maintain, and to rebuild, enlarge, improve, furnish, equip, alter, operate and
dispose of warehouses, factories, offices and other buildings, real estate,
structures or parts thereof, and appliances for the preparation, manufacture,
purchase, sale and distribution of goods, wares, merchandise, things, and
articles of all kinds.
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage, or otherwise dispose of franchises, letters patent of the United
States or of any foreign country, patent rights, licenses and privileges,
inventions, improvements and processes, systems, copyrights, trade-marks and
trade names, relating to, or useful in connection with, any business of this
corporation.
To buy or otherwise acquire, to sell, assign, pledge, or otherwise
dispose of and deal in stocks, bonds, securities, notes and other obligations
of any person, firm or corporation, including this corporation, organized for
or engaged in similar or cognate purposes; also stocks, bonds, securities,
notes, and other obligations of any person, firm, or corporation, including
this corporation, which it may be found or deemed necessary, valuable, or
convenient for this corporation to acquire and deal in, in pursuance or
furtherance of or in connection with the businesses herein specified, or any
other business.
To borrow money and contract indebtedness for all proper corporate
purposes, to issue bonds, notes, and other evidences of indebtedness, to secure
the same by pledge, mortgage, or lien on all or any part of the property of the
corporation, tangible or intangible; and to assume or guarantee or secure in
like manner or otherwise, the leases, contracts, or other obligations, fixed or
contingent, or the payment of any dividends on any stock or shares or of the
principal or interest on any bonds, notes, or other evidences of indebtedness
of any person, firm, corporation, trust, or association in which this
corporation has a financial interest.
To enter into, make, and perform contracts of every name, nature, and
kind with any person, firm, association, or corporation which may be deemed
valuable, expedient, or convenient for this corporation in pursuance of or in
furtherance of or in connection with any of the objects of incorporation of
this corporation or in connection with any of the businesses or purposes herein
specified.
The enumeration of specific powers herein shall not be construed as
limiting or restricting in any way the general powers herein set forth, but
nothing herein contained shall be construed as authorizing the business of
banking.
Continuation Sheet 4A
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:
The holders of shares of Class B Common stock of the corporation shall
not be entitled to vote for the election of Officers or Directors or with
respect to any other aspect of the business of the corporation, or any matter
or thing which may come or be brought before any meeting of the Stockholders of
the corporation; and said Class B Common stock shall not be deemed to be a
class of stock entitled to vote for any purpose whatsoever. In all other
respects, however, the Class B Common stock and the Class A Common stock of the
corporation, and the respective rights and preferences thereof shall be equal,
and neither class shall have any priority over the other with respect to the
payment of dividends or to distributions in liquidation.
Continuation Sheet 5A
5. The restrictions, if any, imposed by the articles of organization
upon the transfer of shares of stock of any class are as follows:
Section 5. Restrictions. None of the corporation's stock, of any
class, may be transferred except as hereinafter provided:
(a) Before making any proposed disposition of any of the
corporation's stock, the holder of the stock shall give written notice
to the Board of Directors specifying in detail the nature of the
proposed disposition and its terms, the class and number of the shares
involved, and the consideration for the proposed disposition, if any.
Such notice shall constitute an offer by the holder to sell the shares
involved to the corporation at their Agreed Value, as determined
hereunder, or, if such proposed disposition is one for a pecuniary
consideration less than the Agreed Value of the shares involved, such
notice shall constitute an offer to sell the shares to the corporation
for such proposed pecuniary consideration.
(b) Within thirty days after receipt of such notice, the Board of
Directors shall give written notice to the offering holder stating
whether the corporation accepts or rejects the holder's offer. If the
offer is accepted, such notice by the corporation shall state the price
to be paid for the shares and shall specify whether the corporation
elects to pay a part of the purchase price by means of the
corporation's note, as provided for in subsection (d) hereof. The
offering holder of such shares shall deliver the shares to the
corporation, suitably endorsed, within ten days after receipt of the
corporation's notice of acceptance, and upon receipt of the shares, the
corporation shall make payment therefor in the manner hereinafter
provided.
If such offer is rejected by the corporation, the Directors shall
transmit forthwith such offer to the record owners of the Class A
Common Stock of the corporation who shall, subject to the provisions of
this subsection (b), have the right to purchase the offered shares, in
amounts proportionate to their respective holdings of said Class A
Common stock, upon all of the same terms and conditions upon which the
corporation might have purchased said offered shares, except that
payment for offered shares shall be made in cash unless otherwise
agreed upon between the parties. Each such owner to whom such shares
are offered shall have the right within thirty (30) days of such offer
to purchase the entire number of shares apportioned to him as above or
to purchase none, and such acceptance shall be extended by written
notice to the Board of Directors given within such time. If any owner
of Class A Common stock shall
Continuation Sheet 5B
not accept such offer, the Board of Directors shall forthwith notify the
remaining shareholders of Class A Common stock that they may purchase in
proportion to their respective holdings of such stock the shares which such
owner was entitled to purchase. Each such shareholder to whom such shares are
offered shall have the right within ten (10) days of such offer to purchase the
entire number of shares apportioned to him as above or to purchase none. Within
three days after the expiration of said ten-day period the Board of Directors
shall give written notice to the offering holder advising him in detail of the
elections made with respect to the offered shares by the owners of the Class A
Common stock. If the offer has been accepted with respect to all of the offered
shares, then the offering holder of such shares shall deliver the same to the
corporation, suitably endorsed, for the account of the accepting owners, within
ten days after receipt of said last-mentioned notice from the Board of Directors
and upon receipt of the shares by the corporation the accepting owners of the
Class A Common stock shall make payment therefor in accordance with the terms of
their respective acceptances.
If such offer is rejected by the corporation and if such offer to the
holders of the Class A Common stock is rejected, in whole or in part, the
offering shareholder, at any time within six months after receipt of any such
notice of rejection, may effect the disposition of the shares which was set
forth in such offering shareholder's notice to the Board.
(c) The Agreed Value of the stock of the corporation shall be such as may
from time to time be determined by the unanimous agreement in writing of the
holders of the corporation's Class A Common stock, such determination to be
reviewed and either confirmed or adjusted at reasonable intervals. The Agreed
Value of the Class B Common stock shall be ninety (90) percent of the Agreed
Value of the Class A Common stock, to reflect the fact that the Class B Common
stock is not entitled to vote.
The Agreed Value of the stock of the corporation shall be reviewed as
herein provided at six-month intervals following the adoption of this by-law and
at the expiration of any such six-month period, if no agreement is arrived at,
any owner of stock may demand from the owners of Class A Common stock that an
agreement be reached and in the absence of such agreement within ten days
thereafter, such value shall be determined by an arbitrator appointed by the
President, or by some other appropriate official, of the American Arbitration
Association, upon written request for such appointment made by any owner of
stock of the corporation. The decision of such arbitrator shall be binding upon
the parties, and may be enforced by any court having jurisdiction, but each
owner of stock of the corporation shall
Continuation Sheet 5c
be entitled to appear before such arbitrator, to be represented by counsel, and
to present evidence. The expenses of arbitration, other than expenses for
counsel and witnesses, shall be borne pro rata, according to the number of
shares held, by the owners of the stock of the corporation.
(d) In the event the corporation shall elect to accept the offer of the
holder of its stock, as herein provided, the corporation may pay the full
purchase price for such stock in cash at the time of the delivery of the stock
to the corporation or, at the corporation's sole election, it may pay said
purchase price partly in cash and partly in the form of an unsecured note of
the corporation. If the corporation shall make the latter election, then in
such event the corporation shall pay at least one-third (1/3) of the purchase
price for the stock at the time the stock is delivered to the corporation, and
the corporation shall then deliver to the selling shareholder the note of the
corporation for the unpaid balance of the purchase price for the stock, bearing
interest at the rate of 6% per annum on the unpaid principal balance and
payable in or within two years from its date.
(e) Each share of stock of the corporation is subject to the requirements
and restrictions upon the transfer of such shares set forth in this Section 5,
and the same shall constitute a contract of each shareholder with the
corporation, shall be binding upon each shareholder and his heirs, assigns,
executors, administrators, or other legal representatives and upon all other
persons succeeding to or standing in the place of or holding under the
shareholder, whether by act of the shareholder or by operation of law. These
provisions shall not be discharged by any transfer of shares which may be made
in compliance with the provisions hereof, but shall apply anew to such shares in
the hands of the new holder thereof. These provisions shall not restrict the
making of a bona fide pledge of any shares to secure an indebtedness, but shall
apply fully with respect to any proposed transfer from the name of the
shareholder pursuant to such pledge, whether upon foreclosure or otherwise and
whether to the pledgee or to any other person. These provisions shall not
restrict the transfer of shares, without consideration, to the transferor's
spouse or to the transferor's issue or to the spouses or the transferor's issue,
or any of them (or to a form of joint ownership between the transferor and the
transferees described next above, or any of them, or to a trust for the sole
benefit of the transferor and the transferees described next above or any of
them), but shall apply fully with respect to any proposed disposition by any
such transferee, except as provided in this and the preceding sentence.
Continuation Sheet 5D
(f) The determination of the Board of Directors under the provisions of
this Section 5 shall be made by majority vote except that no waiver of the
provisions of this Section 5 in the case of any proposed disposition of stock
shall be granted by the vote of less than eighty (80) percent of the members
of the Board of Directors. No Director shall be disqualified from voting on any
matter arising under the provisions of this Section 5 by reason of such
Director's ownership of stock of the corporation which might, directly or
indirectly, be affected by such vote.
(g) In the event of any breach of any of the provisions of this Section 5
by any holder of any of the corporation's stock, none of the rights or
privileges attaching to such stock (including, without limitation, voting
rights and rights to dividends) may be exercised or enjoyed with respect to
such stock by such holder or by any purported transferee from such holder while
such breach shall continue, but nothing herein contained shall be deemed to
preclude lawful action by the corporation to enforce the provisions of this
Section 5.
Continuation Sheet 6A
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:
Pre-Emptive Rights. No stockholder shall, by reason of ownership of stock
of the corporation, have any pre-emptive right to purchase unissued stock of
the corporation, or to subscribe to stock of the corporation, or to purchase
stock of the corporation previously issued and held in the treasury of the
corporation, and, subject to the provisions of applicable law, the authorized
and unissued stock of the corporation shall be issued to such person, firm,
corporation or other legal entity, in such amounts, at such times, and for such
consideration as a majority of the Board of Directors may from time to time
determine.
*We further certify that the foregoing restated articles of organization
effect no amendments to the articles of organization of the corporation as
heretofore amended,
None
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(*If there are no such amendments, state "None".)
Briefly describe amendments in space below:
None
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 15th day of January in the year 1982.
/s/ John R. Bertucci
--------------------------------------------------- President
John R. Bertucci
/s/ Richard S. Chute
--------------------------------------------------- Clerk
Richard S. Chute
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
$15.00 having been paid, said articles are deemed to
have been filed with me this 19th day of January, 1982.
/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 S. Chute, Esquire
Hill & Barlow
225 Franklin Street
Boston, Massachusetts 02110
Telephone 617/423-6200
[SEAL OF WILLIAM FRANCIS GALVIN
Copy Mailed SECRETARY OF THE COMMONWEALTH
DATED 2/20/96]
THE COMMONWEALTH OF MASSACHUSETTS
MICHAEL JOSEPH CONNOLLY
CG SECRETARY OF STATE
-------- ONE ASHBURTON PLACE FEDERAL IDENTIFICATION
EXAMINER BOSTON, MASS. 02108 NO. 04-2277512
ARTICLES OF
MERGER OF PARENT AND SUBSIDIARY CORPORATIONS
PURSUANT TO GENERAL LAWS, CHAPTER 156B, SECTION 82
The fee for filing this certificate is
prescribed by General Laws, Chapter 156B, Section 114.
Make check payable to the Commonwealth of Massachusetts.
We, John R. Bertucci and Richard S. Chute, President*/and Clerk*/ of
MKS Instruments, Inc. 042277512
--------------------------------
name of corporation
organized under the laws of the Commonwealth of Massachusetts and herein called
the parent corporation, do hereby certify as follows:
1. That the subsidiary corporation(s) to be merged into the parent
corporations is as follows*:
[Download Table]
Name State of Date of
Organization Organization
MKS Disc, Inc. 046311363 Massachusetts 10/31/72
2. That the parent corporation owns at least ninety per cent of the outstanding
shares of each class of the stock of each subsidiary corporation to be merged
into the parent corporation.
3.
______________
*Delete the inapplicable words. In case the parent corporation is organized
under the laws of a state other than Massachusetts these articles are to be
signed by officers having corresponding powers and duties.
4. That at a meeting of the directors of the parent corporation the
following vote, pursuant to subsection (a) of General Laws, Chapter 156B,
Section 82, was duly adopted:
VOTED: That MKS Disc, Inc., a Massachusetts corporation and a
wholly-owned subsidiary corporation of the Corporation,
be merged with and into the Corporation in accordance
with the provisions of Section 82 of the Massachusetts
Business Corporation Law, the effective date of the
merger to be the date of filing of the Articles of
Merger of Parent and Subsidiary Corporations with the
State Secretary of the Commonwealth of Massachusetts;
that the President and Clerk of the Corporation be and
hereby are authorized in the name and on behalf of
the Corporation to execute the Articles of Merger of
Parent and Subsidiary Corporations attached hereto (the
"Articles of Merger") and to file the Articles of
Merger with the State Secretary of the Commonwealth of
Massachusetts; and in furtherance thereof that the
President, any Vice President, Treasurer, Clerk, and
Assistant Clerk of the Corporation or any one or more
of them be and hereby are authorized in the name and on
behalf of the Corporation to execute and deliver any
and all documents and instruments and to take any and
all action as they or any one or more of them may deem
necessary or appropriate to effectuate the merger of
MKS Disc, Inc. with and into the Corporation.
5. The effective date of the merger as specified in the vote set out
under Paragraph 4 is the date of filing of these articles of merger of parent
and subsidiary corporations.
6.
IN WITNESS WHEREOF and under the penalties of perjury we have hereto signed
our names this 15th day of December, 1986.
/s/ John R. Burtucci President*
-----------------------------------------
/s/ Richard S. Chute Clerk*
-----------------------------------------
*Delete the inapplicable words. In case the parent corporation is organized
under the laws of a state other than Massachusetts these articles are to be
signed by officers having corresponding powers and duties.
COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF MERGER OF PARENT AND SUBSIDIARY CORPORATIONS
(General Laws, Chapter 156B, Section 82)
I hereby approve the within articles of merger of parent and subsidiary
corporations and, the filing fee in the amount of $200.00 having been paid, said
articles are deemed to have been filed with me this 15th day of December, 1986.
/s/ Michael J. Connolly
-----------------------------------
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
Photo Copy of Merger To Be Sent
TO: Richard S. Chute, Esquire
Hill & Barlow
-----------------------------------------------
225 Franklin Street
-----------------------------------------------
Boston, MA 02110
-----------------------------------------------
Telephone 617-423-6200
--------------------------------------
[SEAL OF WILLIAM FRANCIS GALVIN
Copy Mailed SECRETARY OF THE COMMONWEALTH
DATED 2/20/96]
THE COMMONWEALTH OF MASSACHUSETTS
MICHAEL JOSEPH CONNOLLY
FEDERAL IDENTIFICATION
Secretary of State
NO. 04-2277512
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
ARTICLES OF AMENDMENT
GENERAL LAWS, CHAPTER 156B, SECTION 72
This certificate must be submitted to the Secretary of the
Commonwealth within sixty days after the date of the vote of
stockholders adopting the amendment. The fee for filing this
certificate is prescribed by General Laws, Chapter 156B, Section
114. Make check payable to the Commonwealth of Massachusetts.
-------------
We, John R. Bertucci , President and
Richard S. Chute , Clerk of
MKS Instruments, Inc.
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(Name of Corporation)
located at 34 Third Avenue, Burlington, Massachusetts 01803
------ do hereby certify that the following amendment to the restated
Name articles of organization of the corporation was duly adopted by
Approved written consent dated December 15, 1986, by vote of
2454 shares of Class A Common out of 2454 shares outstanding,
(Class of Stock)
CROSS OUT being all of each class outstanding and entitled to vote thereon.(2)
INAPPLICABLE
CLAUSE
C / /
P / /
M / /
(1)For amendments adopted pursuant to Chapter 156B, Section 70.
(2)For amendments adopted pursuant to Chapter 156B, Section 71.
Note: If the space provided under any Amendment or item on this form
4 is insufficient, additions shall be set forth on separate 8 1/2 - 11
---------- sheets of paper leaving a left hand margin of at least 1 inch for
P.C. binding. Additions to more than one Amendment may be continued on a
single sheet so long as each Amendment requiring each such addition
is clearly indicated.
FOR INCREASE IN CAPITAL FILL IN THE FOLLOWING:
(------shares preferred ) with par value
(------shares common )
The total amount of capital stock :
already authorized is (------shares preferred ) without par value
(------shares common )
(------shares preferred ) with par value
(------shares common )
The amount of additional capital :
stock authorized is (------shares preferred ) without par value
(------shares common )
Voted: That the Restated Articles of Organization of the Corporation be
and hereby are amended by deleting and striking in their entirety
the restrictions upon the transfer of shares of stock contained in
article 5. of the Restated Articles of Organization of the
Corporation so that there are no restrictions imposed by the
articles of organization of the Corporation upon the transfer of
shares of stock of any class of the Corporation; that the President
and Clerk of the Corporation be and hereby are authorized in the
name and on behalf of the Corporation to execute Articles of
Amendment to effectuate such amendment of the Restated Articles of
Organization of the Corporation, a copy of which is attached hereto
(the "Articles of Amendment"), and to file the Articles of
Amendment with the State Secretary of the Commonwealth of
Massachusetts; and in furtherance thereof that the President, any
Vice President, Treasurer, Clerk, and Assistant Clerk of the
Corporation or any one or more of them be and hereby are
authorized in the name and on behalf of the Corporation to execute
and deliver any and all documents and instruments and to take any
and all action as they or any one or more of them may deem
necessary or appropriate to effectuate such amendment of the
Restated Articles of Organization of the Corporation.
The foregoing amendment will become effective when these articles of
amendment are filed in accordance with Chapter 156B, Section 6 of The General
Laws unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 15th day of December, in the year 1986
/s/ John R. Bertucci President
-----------------------------------------------------
John R. Bertucci
/s/ Richard S. Chute Clerk
-----------------------------------------------------
Richard S. Chute
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
I hereby approve the within articles of amendment
and, the filing fee in the amount of $75.00
having been paid, said articles are deemed to have
been filed with me this 16th
day of December, 1986.
/s/ Michael Joseph Connolly
----------------------------
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO: Richard S. Chute
Hill & Sarlow
---------------------------
225 Franklin Street
---------------------------
Boston, MA 02110
---------------------------
Telephone 617-423-6200
---------------------------
Copy Mailed
[STATE SEAL]
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary
ONE ASHBURTON PLACE, BOSTON, MASS. 02180
---------- FEDERAL IDENTIFICATION
EXAMINER NO. 04-2277512
------------------
N/A
----------
Name
Approved
C [ ]
P [ ]
M [ ]
4
----------
P.C.
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
amendment. The fee for filing this certificate is prescribed by General Laws,
Chapter 156B, Section 114. Make check payable to the Commonwealth of
Massachusetts.
---------------
We, John R. Bertucci , President and
Richard S. Chute , Clerk of
MKS Instruments, Inc.
--------------------------------------------------------------------------------
(Name of Corporation)
located at Six Shattuck Road, Andover, Massachusetts 01810
--------------------------------------------------------------------------------
do hereby certify that the following amendment to the restated articles of
organization of the corporation was duly adopted by written consent dated
January 8, 1987, by vote of
2454 shares of Class A Common out of 2454 shares outstanding,
-------- ------------------------ --------
(Class of Stock)
3250 shares of Class B Common out of 3250 shares outstanding,
-------- ------------------------ --------
(Class of Stock)
being all of each class outstanding and entitled to vote thereon and of each
class of series of stock whose rights are adversely affected thereby:
(1) for amendments adopted pursuant in Chapter 156B, Section 70.
(2) for amendments adopted pursuant to Chapter 156B, Section 71.
Note: If the space provided under any Amendment 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 Amendment may be continued on a single sheet so long as each
Amendment requiring each such addition is clearly indicated
TO CHANGE the number of shares and the par value, if any, of each class of
stock within the corporation fill in the following:
The total presently authorized is:
[Download Table]
------------------------------------------------------------------------
NO PAR VALUE WITH PAR VALUE PAR
KIND OF STOCK NUMBER OF SHARES NUMBER OF SHARES VALUE
------------------------------------------------------------------------
COMMON
------------------------------------------------------------------------
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------------------------------------------------------------------------
PREFERRED
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CHANGE the total to:
[Download Table]
------------------------------------------------------------------------
NO PAR VALUE WITH PAR VALUE PAR
KIND OF STOCK NUMBER OF SHARES NUMBER OF SHARES VALUE
------------------------------------------------------------------------
COMMON
------------------------------------------------------------------------
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PREFERRED
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VOTED: That the Restated Articles of Organization of the Corporation be and
hereby are amended by adding the following provision to article 6 of the
Restated Articles of Organization of the Corporation so that article 6
of the Restated Articles of Organization of the Corporation shall
contain the following provision:
"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 notwithstanding any provision of law
imposing such liability, 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 61 or 62 of the Massachusetts Business Corporation
Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
If the Massachusetts Business Corporation Law is amended, after
approval by the stockholders of the corporation of this provision,
to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of
the corporation shall be eliminated or limited to the fullest extent
permitted by the Massachusetts Business Corporation Law, as so
amended. Any amendment, repeal, or modification of this provision by
the stockholders of the corporation shall not adversely affect any
right or protection of a director of the corporation existing at the
time of such amendment, repeal, or modification."
; that the President and Clerk of the Corporation be and hereby are
authorized in the name and on behalf of the Corporation to execute Articles
of Amendment to effectuate such amendment of the Restated Articles of
Organization of the Corporation, a copy of which is attached hereto (the
"Articles of Amendment"), and to file the Articles of Amendment with the
State Secretary of the Commonwealth of Massachusetts; and in furtherance
thereof that the President, any Vice President, Treasurer, Clerk, and
Assistant Clerk of the Corporation or any one or more of them be and hereby
are authorized in the name and on behalf of the Corporation to execute and
deliver any and all documents and instruments and to take any and all
action as they or any one or more of them may deem necessary or appropriate
to effectuate such amendment of the Restated Articles of Organization of
the Corporation.
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of The General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which
event the amendment will become effective on such later date.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed
our names this 9th day of February, in the year 1987.
/s/ John R. Bertucci President
----------------------------------------------------------------
John R. Bertucci
/s/ Richard S. Chute Clerk
----------------------------------------------------------------
Richard S. Chute
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
I hereby approve the within articles of amendment and, the filing fee in
the amount of $75.00 having been paid, said articles are deemed to have been
filed with me this 11th day of February, 1987.
/s/ Michael J. Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF AMENDMENT TO BE SENT
TO: Richard S. Chute, Esq.
Hill & Barlow
----------------------------------
225 Franklin Street
Boston, MA 02110
----------------------------------
----------------------------------
Telephone (617) 423-6200
-------------------------
Copy Mailed
[SEAL OF WILLIAM FRANCIS GALVIN,
SECRETARY OF THE COMMONWEALTH
DATED 2/20/96]
The Commonwealth of Massachusetts
WILLIAM FRANCIS GALVIN
------------ Secretary of the Commonwealth
Examiner ONE ASHBURTON PLACE
BOSTON, MASS. 02108
FEDERAL IDENTIFICATION NO. 004-2277512
ARTICLES OF
MERGER OF PARENT AND SUBSIDIARY CORPORATIONS
PURSUANT TO GENERAL LAWS, CHAPTER 156B, SECTION 82
The fee for filing this certificate is prescribed by
General Laws, Chapter 156B, Section 114.
Make check payable to the Commonwealth of Massachusetts.
* * * *
We, John R. Bertucci and Richard S. Chute, President* and Clerk* of
MKS Instruments, Inc.
-------------------------------------------------------------------------------
name of corporation
organized under the laws of Massachusetts and herein called the parent
corporation, do hereby certify as follows:
1. That the subsidiary corporation(s) to be merged into the parent
corporations are/is as follows:
State of Date of
Name Organization Organization
UTI Instruments Company CA 09/26/73
2. That the parent corporation owns at least ninety per cent of the
outstanding shares of each class of the stock of each subsidiary corporation to
be merged into the parent corporation.
3. That in the case of each of the above-named corporations the laws of
the state of its organization, if other than Massachusetts, permit the merger
herein provided for and that all action required under the laws of each such
state in connection with this merger has been duly taken. (If all the
corporations are organized under the laws of Massachusetts and if General Laws,
Chapter 156B is applicable to them, then Paragraph 3 may be deleted.)
* Delete the inapplicable words. In case the parent corporation is organized
under the laws of a state other than Massachusetts these articles are to be
signed by officers having corresponding powers and duties.
4. That at a meeting of the directors of the parent corporation the
following vote, pursuant to subsection (a) of General Laws, Chapter 156B,
Section 82, was duly adopted:
VOTED: That the Corporation merge into itself UTI
----- Instruments Company, a California corporation,
with the Corporation surviving the merger
(the "Merger"), in accordance with the
provisions of Section 82 of Chapter 156B of the
Massachusetts General Laws.
FURTHER
VOTED: That the effective date of the Merger shall be
------- the date of filing of appropriate Articles of
Merger with the Secretary of State of Massachusetts.
FURTHER
VOTED: That any officer of the Corporation, acting singly,
------- be and he hereby is, authorized and directed to
take any further actions, and to execute and deliver
any further documents and certificates, which may
be necessary or appropriate to effectuate the Merger
described herein.
5. The effective date of the merger as specified in the vote set out under
Paragraph 4 is
IN WITNESS WHEREOF and under the penalties of perjury we have hereto signed
our names this 17th day of November, 1995.
/s/ John R. Bertucci
------------------------ President*
John R. Bertucci
/s/ Richard S. Chute
------------------------ Clerk*
Richard S. Chute
* Delete the inapplicable words. In case the parent corporation is organized
under the laws of a state other than Massachusetts these articles are to be
signed by officers having corresponding powers and duties.
COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF MERGER OF PARENT AND SUBSIDIARY CORPORATIONS
(General Laws, Chapter 156B, Section 82)
I hereby approve the within articles of merger of parent and subsidiary
corporations and, the filing fee in the amount of $250 having been paid, said
articles are deemed to have been filed with me this 17th day of November, 1995.
/s/ William Francis Galvin
William Francis Galvin
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photo Copy of Merger To Be Sent
TO: Terrence W. Mahoney, Esq.
Hill & Barlow
------------------------------
One International Place
------------------------------
Boston, MA 02110
------------------------------
Telephone 617-428-3000
--------------------
FEDERAL IDENTIFICATION
NO. 04-2277512
----------
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
We, John R. Bertucci , *President,
----------------------------------------------------------------
and Richard S. Chute , *Clerk,
--------------------------------------------------------------------
of MKS Instruments, Inc. ,
-----------------------------------------------------------------------------
(Exact name of corporation)
located at Six Shattuck Road, Andover, MA 01810
---------------------------------------------------------------------,
(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles numbered: 3
3
--------------------------------------------------------------------------------
(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)
of the Articles of Organization were duly adopted at a meeting held on
January 9 , 1998 by vote of:
---------- --,
2,454 shares of Class A Common of 2,454 shares outstanding,
-------- ------------------------------ -------
(type, class & series, if any)
3,250 shares of Class B Common of 3,250 shares outstanding,
-------- ------------------------------ -------
(type, class & series, if any)
and
shares of of shares outstanding,
-------- ------------------------------ -------
(type, class & series, if any)
(1)**being all and of each type, class or series of stock whose rights are
adversely affected thereby:
*Delete the inapplicable words. **Delete the inapplicable clause.
(1)For amendments adopted pursuant to Chapter 156B, Section 70.
(2)For amendments adopted pursuant to Chapter 156B, Section 71.
Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on one side only of separate 8 1/2 x
11 sheets of paper with a left margin of at least 1 inch. Additions to more
than one article may be made on a single sheet so long as each article
requiring each addition is clearly indicated.
To change the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
[Download Table]
--------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS | WITH PAR VALUE STOCKS
-----------------------------------|--------------------------------------------
TYPE | NUMBER OF SHARES | TYPE | NUMBER OF SHARES | PAR VALUE
------------|----------------------|------------|-------------------|-----------
Common: | Class A 10,000 | Common: | None | None
------------|----------------------|------------|-------------------|-----------
| Class B 10,000 | | None | None
------------|----------------------|------------|-------------------|-----------
Preferred: | None | Preferred: | None | None
------------|----------------------|------------|-------------------|-----------
| | | |
--------------------------------------------------------------------------------
Change the total authorized to:
[Download Table]
--------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS | WITH PAR VALUE STOCKS
-----------------------------------|--------------------------------------------
TYPE | NUMBER OF SHARES | TYPE | NUMBER OF SHARES | PAR VALUE
------------|----------------------|------------|-------------------|-----------
Common: | Class A 6,000,000 | Common: | None | None
------------|----------------------|------------|-------------------|-----------
| Class B 10,000,000 | | None | None
------------|----------------------|------------|-------------------|-----------
Preferred: | None | Preferred: | None | None
------------|----------------------|------------|-------------------|-----------
| | | |
--------------------------------------------------------------------------------
VOTED: To amend the Restated Articles of Organization, as amended,
to increase the authorized Class A Common Stock, no par
value per share, of the Corporation from 10,000 shares to
6,000,000 shares and to increase the authorized Class B
Common Stock, no par value per share of the Corporation from
10,000 shares to 10,000,000 shares, so that after the
effective date of such amendment the total authorized
capital stock of the Corporation shall consist of 6,000,000
shares of Class A Common Stock, no par value per share, and
10,000,000 shares of Class B Common Stock, no par value per
share.
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
Later effective date: _____________________.
SIGNED UNDER THE PENALTIES OF PERJURY, this 14th day of January , 1998,
-------- -------------
/s/ John R. Bertucci , *President
--------------------------------------------------------------------
/s/ Richard S. Chute , *Clerk
------------------------------------------------------------------------
*Delete the inapplicable words.
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(GENERAL LAWS, CHAPTER 156B, SECTION 72)
=====================================================
I hereby approve the within Articles of Amendment and,
the filing fee in the amount of $15,980 having been
paid, said articles are deemed to have been filed
with me this 14th day of January 1998.
Effective date: January 14, 1998
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
Richard N. Kimball, Esq.
----------------------------------------------
Hale and Dorr LLP
60 State Street
----------------------------------------------
Boston, MA 02109
----------------------------------------------
Tel: (617) 526-6000
FEDERAL IDENTIFICATION
No. 04-2277512
----------
THE COMMONWEALTH OF MASSACHUSETTS
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
(GENERAL LAWS, CHAPTER 156B, SECTION 72)
We, Ronald C. Weigner , Vice President
-----------------------------------------------------------
and Richard S. Chute , Clerk
-----------------------------------------------------------
of MKS Instruments, Inc.
--------------------------------------------------------------------------------
(exact name of corporation)
located at Six Shattuck Road, Andover, Massachusetts 01810 ,
-------------------------------------------------------------------
certify that these Articles of Amendment affecting articles numbered:
3
--------------------------------------------------------------------------------
(Number those articles 1,2,3,4,5 and/or 6 being amended)
of the Articles of Organization were duly adopted at a meeting held on
February 17, 1999, by vote of:
----------- --
5,177,940 shares of Class A Common out of 5,177,940 shares outstanding,
--------- --------------------- ---------
(type, class & series, if any)
6,857,500 shares of Class B Common out of 6,857,501 shares outstanding, and
--------- --------------------- ---------
(type, class & series, if any)
_________ shares of_____________________out of __________ shares outstanding,
(type, class & series, if any)
C [ ]
P [ ]
M [ ]
RA [ ]
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.
To change the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
--------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
--------------------------------------------------------------------------------
TYPE NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
--------------------------------------------------------------------------------
Common: Class A 6,000,000 None None
--------------------------------------------------------------------------------
Class B 10,000,000 None None
--------------------------------------------------------------------------------
Preferred: None None None
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Change the total authorized to:
--------------------------------------------------------------------------------
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
--------------------------------------------------------------------------------
TYPE NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
--------------------------------------------------------------------------------
Common: Class A 11,250,000 None None
--------------------------------------------------------------------------------
Class B 18,750,000 None None
--------------------------------------------------------------------------------
Preferred: None None None
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
VOTED: To amend the Restated Articles of Organization, as amended, to
increase the authorized Class A Common Stock, no par value per
share, of the Corporation from 6,000,000 shares to 11,250,000
shares and to increase the authorized Class B Common Stock, no
par value per share, of the Corporation from 10,000,000 shares to
18,750,000 shares, so that after the effective date of such
amendment the total authorized capital stock of the Corporation
shall consist of 11,250,000 shares of Class A Common Stock, no
par value per share, and 18,750,000 shares of Class B Common
Stock, no par value per share.
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
Later effective date:_______________________.
SIGNED UNDER THE PENALTIES OF PERJURY, this 24th day of February, 1999,
---- -------- --
/s/ Ronald C. Weigner Vice President,
----------------------------------------------------------------
/s/ Richard S. Chute Clerk
-------------------------------------------------------------------------
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
=================================================================
I hereby approve the within Articles of Amendment and, the filing
fee in the amount of $_______ having been paid, said articles are
deemed to have been filed with me this ____ day of _________19__.
Effective date:__________________________________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
Emma R. Petty, Corporate Paralegal
-----------------------------------------------
Hale and Dorr
60 State Street
-----------------------------------------------
Boston, MA 02109
-----------------------------------------------
Dates Referenced Herein and Documents Incorporated by Reference
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