Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
VARIAN, INC.
A Delaware Corporation
ARTICLE I
NAME
The name of the corporation is Varian, Inc. (the "Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the State
of Delaware is The Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at that
address is The Corporation Trust Company.
ARTICLE III
PURPOSES
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV
CAPITAL STOCK
The Corporation shall be authorized to issue two classes of stock to
be designated, respectively, "Common Stock" and "Preferred Stock." The total
number of shares of both classes of stock which the Corporation has authority to
issue is one hundred million (100,000,000) shares, consisting of: ninety nine
million (99,000,000) shares of Common Stock, $0.01 par value per share, and one
million (1,000,000) shares of Preferred Stock, $0.01 par value per share.
The Board of Directors of the Corporation (the "Board of Directors")
is authorized, subject to limitations prescribed by applicable law and the
provisions of this Article IV, to provide for the issuance of the shares of
Preferred Stock from time to time in one or more series, each of which series
shall have such distinctive designation or title as shall be fixed by the Board
of Directors prior to the issuance of any shares thereof. Each such series of
Preferred Stock shall have such voting powers, shall consist of such number of
shares, shall be issued for such consideration and shall otherwise have such
powers, designations, preferences and relative,
participating, optional or other rights, if any, and such qualifications,
limitations or restrictions, if any, as shall be stated in such resolution or
resolutions providing for the issue of such series of Preferred Stock as may be
adopted from time to time by the Board of Directors prior to the issuance of any
shares thereof pursuant to the authority hereby expressly vested in it, all in
accordance with applicable law.
The number of authorized shares of any class or classes of stock may
be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of at least a majority of
the voting power of the then outstanding Voting Stock, voting together as a
single class.
The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof. Except as may be provided in this
Certificate of Incorporation or in any Certificate of Designation designating
any series of Preferred Stock pursuant to the foregoing provisions of this
Article IV that shall be in effect under the General Corporation Law of the
State of Delaware (a "Preferred Stock Designation"), the holders of shares of
Common Stock shall be entitled to one vote for each such share upon all
questions presented to the stockholders, the Common Stock shall have the
exclusive right to vote for the election of directors and for all other
purposes, and holders of Preferred Stock shall not be entitled to receive notice
of any meeting of stockholders at which they are not entitled to vote.
The Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all purposes and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided by applicable law.
Pursuant to authority granted by this Article IV, the Board of
Directors adopted a resolution creating a series of Preferred Stock, $0.01 par
value per share, and stated the designation and number of shares, and fixed the
powers, designations, preferences and relative, participating, optional or other
rights, if any, of the shares of such series and the qualifications, limitations
or restrictions thereof, if any, as set forth in a Certificate of Designation of
Participating Preferred Stock of Varian, Inc.
ARTICLE V
ELECTION OF DIRECTORS
Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specified circumstances, the number of
directors of the Corporation shall be fixed from time to time exclusively by the
Board of Directors pursuant to a resolution adopted by a majority of the then
authorized number of directors of the Corporation, but in no event shall the
number of directors be fewer than three. The directors, other than those who
may be elected solely by the holders of any series of Preferred Stock (unless
the relevant Preferred Stock Designation shall so provide), shall be divided
into three classes, as nearly equal in number as possible, designated "Class I,"
"Class II" and "Class III." Directors of each class shall serve for a term
ending on the third annual meeting of stockholders following the annual meeting
at which such class was elected, except that the term of office of the initial
Class I
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director shall expire on the date of the annual meeting in 2000, the term of
office of the initial Class II directors shall expire on the date of the annual
meeting in 2001 and the term of office of the initial Class III directors shall
expire on the date of the annual meeting in 2002. The foregoing
notwithstanding, each director shall serve until his or her successor shall have
been duly elected and qualified, unless such director shall die, resign, retire
or be disqualified or removed.
At all elections of directors, the directors chosen to succeed those
directors whose terms then expire shall be identified as being of the same class
as the directors they succeed. If for any reason the number of directors in the
various classes shall not be as nearly equal as possible, the Board of Directors
may redesignate any director into a different class in order that the balance of
directors in such classes shall be as nearly equal as possible.
Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specified circumstances, and unless the
Board of Directors otherwise determines, vacancies in the Board of Directors
resulting from one or more directors' death, resignation, retirement,
disqualification, removal from office or other cause, and newly created
directorships resulting from any increase in the authorized number of directors,
may be filled only by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors, or by a sole
remaining director, and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of office of
the class to which they have been elected expires and until such director's
successor shall have been duly elected and qualified. No decrease in the number
of authorized directors constituting the Board of Directors shall shorten the
term of any incumbent director.
Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specified circumstances, any director may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of at least a majority of the voting power of the then
outstanding Voting Stock, voting together as a single class, at a meeting called
for that purpose.
Elections of directors of the Corporation need not be by written
ballot except and to the extent the by-laws of the Corporation (the "By-Laws")
so provide.
Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, and in addition to approval by the Board of
Directors, the affirmative vote of the holders of at least 66?% of the voting
power of the then outstanding Voting Stock, voting together as a single class,
shall be required to amend, repeal or adopt any provision inconsistent with this
Article V. For purposes of this Certificate of Incorporation, "Voting Stock"
shall mean the outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors.
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ARTICLE VI
POWERS OF THE BOARD OF DIRECTORS
In furtherance and not in limitation of the powers conferred by
applicable law, the Board of Directors shall have the power to (1) adopt, amend
or repeal By-Laws, subject to the power of the stockholders of the Corporation
under the General Corporation Law of the State of Delaware to adopt, amend or
repeal any By-Law; provided, however, that, notwithstanding any other provision
of this Certificate of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any affirmative
vote of the holders of any series of Preferred Stock required by applicable law,
this Certificate of Incorporation or any Preferred Stock Designation, the
affirmative vote of the holders of at least 66?% of the voting power of the then
outstanding Voting Stock, voting together as a single class, shall be required
for stockholders to adopt, amend or repeal any provision of the By-Laws; and (2)
from time to time determine whether and to what extent, and at what times and
places, and under what conditions and regulations, the accounts and books of the
Corporation, or any of them, shall be open to inspection of stockholders; and,
except as so determined or as expressly provided in this Certificate of
Incorporation or in any Preferred Stock Designation, no stockholder shall have
any right to inspect any account, book or document of the Corporation other than
such rights as may be conferred by applicable law. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, and in addition
to approval by the Board of Directors, the affirmative vote of the holders of at
least 66?% of the voting power of the then outstanding Voting Stock, voting
together as a single class, shall be required to amend, repeal or adopt any
provision inconsistent with clause (1) of the preceding sentence. The
Corporation may in its By-Laws confer powers upon its Board of Directors in
addition to the powers and authorities expressly conferred upon it by applicable
law.
ARTICLE VII
LIABILITY OF DIRECTORS
To the fullest extent permitted by the General Corporation Law of the
State of Delaware, as it exists on the date hereof or as it may hereafter be
amended, 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 of the Corporation. Without limiting the effect of the
preceding sentence, if the General Corporation Law of the State of Delaware is
hereafter amended to authorize the further elimination or limitation of the
liability of a director, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as so amended.
Neither any amendment nor repeal of this Article VII, nor the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article VII, shall eliminate, reduce or otherwise adversely affect any
limitation on the personal liability of a director of the Corporation existing
at the time of such amendment, repeal or adoption of such an inconsistent
provision.
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ARTICLE VIII
INDEMNIFICATION
Each person who is or was a director or officer of the Corporation, or
each such person who is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, limited liability
company, partnership, joint venture, trust or other enterprise (including the
heirs, executor, administrators or estate of such person), including service
with respect to employee benefit plans, shall be indemnified and held harmless
by the Corporation to the fullest extent permitted by the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended
(but, if permitted by applicable law, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment) and any other applicable laws as presently or hereafter in
effect. The Corporation may, by action of the Board of Directors, provide
indemnification to employees and agents of the Corporation, and to any such
persons serving as directors, officers, employees or agents of another
corporation, limited liability company, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans, at
the request of the Corporation, with the same scope and effect as the foregoing
indemnification of directors and officers. The Corporation shall be required to
indemnify any person seeking indemnification in connection with any action, suit
or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors or is a proceeding to
enforce such person's right to indemnification pursuant to the rights granted by
this Certificate of Incorporation or otherwise by the Corporation. Without
limiting the generality or the effect of the foregoing, the Corporation may
enter into one or more agreements with any person which provide for
indemnification greater than or different from that provided in this Article
VIII.
ARTICLE IX
ACTION BY STOCKHOLDERS
Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing in lieu of a meeting of such stockholders. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, and in addition
to approval by the Board of Directors, the affirmative vote of at least 66?% of
the voting power of the then outstanding Voting Stock, voting together as a
single class, shall be required to amend, repeal or adopt any provision
inconsistent with this Article IX.
ARTICLE X
AMENDMENTS
Except as may be expressly provided in this Certificate of
Incorporation, the Corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation or a Preferred Stock Designation, and any other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted, in the manner now or hereafter prescribed herein or by
applicable law, and all
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rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to this
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this Article X; provided, however, that
any amendment or repeal of Article VII or Article VIII of this Certificate of
Incorporation shall not adversely affect any right or protection existing
hereunder in respect of any act or omission occurring prior to such amendment or
repeal; and provided further that no Preferred Stock Designation shall be
amended after the issuance of any shares of the series of Preferred Stock
created thereby, except in accordance with the terms of such Preferred Stock
Designation and the requirements of applicable law.
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