STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 06/12/2023 FILE NO. 7634291
CERTIFICATE OF INCORPORATION
OF
HALCYON ACQUISITION SUB, INC.
The undersigned, for the purpose of forming a corporation under the General Corporation Law of the State of Delaware (the "DGCL"), does hereby certify as follows:
ARTICLE I — NAME
The name of the corporation is Halcyon Acquisition Sub, Inc. (hereinafter referred to as the "Corporation").
ARTICLE II — REGISTERED OFFICE AND REGISTERED AGENT
The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The name of the registered agent of the Corporation at such address is Pinnacle Corporate Services, Inc.
ARTICLE III — PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. Without limiting the generality of the foregoing, the Corporation has been formed solely for the purpose of effectuating a reverse triangular merger (the "Merger") with Vectris Photonics, Inc., a corporation organized under the laws of the State of Delaware ("Vectris Photonics"), and activities incidental thereto. Such activities shall include, without limitation, entering into an Agreement and Plan of Merger by and among Halcyon Semiconductor Aktiengesellschaft, the Corporation, and Vectris Photonics (the "Merger Agreement"), and all related agreements, instruments, certificates, and transactions contemplated thereby, including the execution and delivery of any ancillary documents, the filing of a certificate of merger with the Secretary of State of the State of Delaware, and the taking of all actions necessary, proper, or advisable in connection with or incidental to the consummation of the Merger. The Corporation shall not engage in any business or activity unrelated to such purpose without the prior written consent of its sole stockholder.
ARTICLE IV — AUTHORIZED CAPITAL STOCK
The total number of shares of capital stock that the Corporation is authorized to issue is one thousand (1,000) shares of Common Stock, par value $0.01 per share (the "Common Stock"). All shares of Common Stock shall be of a single class and shall have identical rights, privileges, preferences, and voting powers, and shall be equal in every respect as to all matters, including, without limitation, rights to dividends and distributions upon the liquidation, dissolution, or winding up of the Corporation. Each share of Common Stock shall entitle the holder thereof to one (1) vote on each matter submitted to a vote of stockholders of the Corporation.
ARTICLE V — INCORPORATOR
The name and mailing address of the sole incorporator of the Corporation is as follows:
Markus Ellinger c/o Halcyon Semiconductor Aktiengesellschaft Halcyon-Platz 1 81739 München Federal Republic of Germany
The powers of the incorporator shall terminate upon the filing of this Certificate of Incorporation and the election or appointment of the initial Board of Directors and the issuance of shares to the sole stockholder as provided herein.
ARTICLE VI — BOARD OF DIRECTORS
Section 6.1. Management. The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors in accordance with the DGCL.
Section 6.2. Initial Board of Directors. The initial Board of Directors shall consist of one (1) director. The name and address of the person who shall serve as the initial sole director of the Corporation, and who shall serve in such capacity until his successor is duly elected and qualified or until his earlier death, resignation, disqualification, or removal, is as follows:
Markus Ellinger c/o Halcyon Semiconductor Aktiengesellschaft Halcyon-Platz 1 81739 München Federal Republic of Germany
Section 6.3. Number of Directors. The number of directors constituting the entire Board of Directors may be fixed and changed from time to time exclusively by resolution of the Board of Directors or by the written consent of the sole stockholder of the Corporation, subject to the requirements of the DGCL. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
Section 6.4. Removal. Subject to the rights, if any, of the holders of shares of any class or series of stock then outstanding, any director or the entire Board of Directors may be removed from office at any time, with or without cause, by the affirmative vote or written consent of the holders of a majority of the voting power of the then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors.
Section 6.5. Vacancies. Unless otherwise provided by the DGCL, newly created directorships resulting from an increase in the authorized number of directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal, or other cause shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by the sole remaining director, or by the sole stockholder of the Corporation. Any director elected to fill a vacancy shall hold office until his or her successor shall have been duly elected and qualified or until his or her earlier death, resignation, disqualification, or removal.
ARTICLE VII — LIMITATION OF DIRECTOR LIABILITY
Section 7.1. Elimination of Liability. To the fullest extent permitted by the DGCL as it now exists or as it may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader exculpation than the DGCL permitted prior to such amendment), no director of the Corporation shall be personally liable to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director. Without limiting the foregoing, if the DGCL is amended after the date of the filing of this Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Section 7.2. Effect of Repeal or Modification. Any repeal or modification of this Article VII shall not adversely affect any right or protection existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification. The rights and protections provided to any person by this Article VII shall survive any such repeal or modification and shall continue in full force and effect with respect to all acts or omissions of such person that occurred prior to the effective date of any such repeal or modification, regardless of whether any proceeding relating to such acts or omissions is commenced before or after the date of such repeal or modification.
Section 7.3. Additional Protections. If the DGCL is hereafter amended to permit further elimination or limitation of the personal liability of officers, then the liability of an officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. For purposes of this Article VII, the term "officer" shall have the meaning assigned to it under Section 102(b)(7) of the DGCL, as it may be amended from time to time.
ARTICLE VIII — INDEMNIFICATION
Section 8.1. Right to Indemnification. The Corporation shall indemnify, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (an "Indemnified Person") who was or is made or is threatened to be made a party to, or is otherwise involved in, any action, suit, or proceeding, whether civil, criminal, administrative, or investigative (a "Proceeding"), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation, or, while serving as a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, enterprise, or nonprofit entity (including service with respect to employee benefit plans), against all liability, loss, and expenses (including attorneys' fees, judgments, fines, ERISA excise taxes and penalties, amounts paid in settlement, and other expenses) actually and reasonably incurred by such Indemnified Person in connection with such Proceeding. Notwithstanding the preceding sentence, the Corporation shall be required to indemnify an Indemnified Person in connection with a Proceeding (or part thereof) commenced by such Indemnified Person only if the commencement of such Proceeding (or part thereof) was authorized by the Board of Directors of the Corporation or is a Proceeding brought to enforce such Indemnified Person's rights to indemnification under this Article VIII.
Section 8.2. Indemnification of Employees and Agents. The Corporation shall have the power to indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any employee or agent of the Corporation who was or is made or is threatened to be made a party to, or is otherwise involved in, any Proceeding by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was an employee or agent of the Corporation, or is or was serving at the request of the Corporation as an employee or agent of another corporation, partnership, joint venture, trust, enterprise, or nonprofit entity (including service with respect to employee benefit plans), against all liability, loss, and expenses actually and reasonably incurred by such person in connection with such Proceeding.
Section 8.3. Advancement of Expenses. The right to indemnification conferred in this Article VIII shall include the right to be paid by the Corporation the expenses (including attorneys' fees) incurred in defending or otherwise participating in any such Proceeding in advance of its final disposition (hereinafter an "Advancement of Expenses"); provided, however, that an Advancement of Expenses shall be made only upon delivery to the Corporation of an undertaking (hereinafter an "Undertaking"), by or on behalf of the Indemnified Person, to repay all amounts so advanced if it shall ultimately be determined by a court of competent jurisdiction in a final disposition that such Indemnified Person is not entitled to be indemnified for such expenses under this Article VIII or otherwise. The rights to indemnification and to Advancement of Expenses conferred in this Article VIII shall be contract rights and such rights shall continue as to an Indemnified Person who has ceased to be a director, officer, employee, or agent of the Corporation and shall inure to the benefit of the Indemnified Person's heirs, executors, and administrators.
Section 8.4. Non-Exclusivity of Rights. The rights to indemnification and Advancement of Expenses conferred in this Article VIII shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, the Bylaws of the Corporation, any agreement, vote of stockholders or disinterested directors, or otherwise.
Section 8.5. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation, or any person who is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, enterprise, or nonprofit entity, against any expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the DGCL.
Section 8.6. Effect of Repeal or Modification. Any repeal or modification of this Article VIII shall not adversely affect any right or protection hereunder of any Indemnified Person in respect of any act or omission occurring prior to the time of such repeal or modification. The rights provided hereunder shall inure to the benefit of any Indemnified Person and such person's heirs, executors, and administrators.
ARTICLE IX — AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change, or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by the DGCL, and all rights conferred upon stockholders herein are granted subject to this reservation. Notwithstanding the foregoing, no amendment to this Certificate of Incorporation that would have the effect of modifying or eliminating any provision of Article VII or Article VIII hereof shall apply to or have any effect on the liability or alleged liability of any director or officer of the Corporation, or any right to indemnification or Advancement of Expenses of any Indemnified Person, for or with respect to any acts or omissions of such director, officer, or Indemnified Person occurring prior to the effective time of such amendment.
ARTICLE X — SOLE STOCKHOLDER
Section 10.1. Identity of Sole Stockholder. The Corporation's sole stockholder shall be Halcyon Semiconductor Aktiengesellschaft (the "Parent"), an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Munich under registration number HRB 178254, with its principal offices located at Halcyon-Platz 1, 81739 München, Federal Republic of Germany.
Section 10.2. Issuance of Shares. All one thousand (1,000) authorized shares of Common Stock of the Corporation shall be issued to Halcyon Semiconductor Aktiengesellschaft as the sole stockholder of the Corporation, for an aggregate consideration of Ten Dollars ($10.00), representing payment of par value in respect of all such shares.
Section 10.3. Action by Written Consent. Any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, is or are signed by the sole stockholder of the Corporation. Such written consent shall have the same force and effect as a unanimous vote of stockholders at a duly held meeting and shall be filed with the minutes of the proceedings of the stockholders.
ARTICLE XI — DURATION
Section 11.1. Perpetual Existence. The Corporation shall have perpetual existence unless dissolved in accordance with the applicable provisions of the DGCL.
Section 11.2. Post-Merger Dissolution. Upon the consummation of the Merger (as described in Article III hereof) or, alternatively, upon the abandonment of the Merger in accordance with the terms and conditions of the Merger Agreement, the sole stockholder of the Corporation may elect to dissolve the Corporation in accordance with applicable provisions of the DGCL, including without limitation Section 275 thereof. Nothing in this Section 11.2 shall be deemed to require the dissolution of the Corporation following the consummation or abandonment of the Merger, it being understood that any such dissolution shall be at the sole discretion of the sole stockholder.
IN WITNESS WHEREOF, the undersigned, being the sole incorporator hereinbefore named, has executed this Certificate of Incorporation this 12th day of June, 2023.
By: ________
Name: Markus Ellinger
Title: Sole Incorporator
Address:
c/o Halcyon Semiconductor Aktiengesellschaft Halcyon-Platz 1 81739 München Federal Republic of Germany
STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS
ENDORSEMENT AND FILING RECEIPT
I, Jeffrey W. Bullock, Secretary of State of the State of Delaware, do hereby certify that the above and foregoing is a true and correct copy of the Certificate of Incorporation of Halcyon Acquisition Sub, Inc., as received and filed in this office on the 12th day of June, 2023, at 9:00 a.m. Eastern Time.
File Number: 7634291
Effective Date: June 12, 2023
Entity Name: Halcyon Acquisition Sub, Inc.
Entity Kind: Corporation
Entity Type: General
Residency: Domestic
State: Delaware
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at Dover this 12th day of June, A.D. 2023.
________________________________________
Jeffrey W. Bullock Secretary of State
Authentication: 230612000-7634291
Date: 06-12-23
You may verify this filing online at https://icis.corp.delaware.gov/ecorp/entitysearch/NameSearch.aspx