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Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
VARIAN MEDICAL SYSTEMS, INC.
A DELAWARE CORPORATION
Varian Medical Systems, Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
FIRST: The name of the Corporation is Varian Medical Systems,
Inc. and the name under which the Corporation was originally incorporated was
Varian Delaware, Inc. The Corporation's original Certificate of Incorporation
was filed with the Secretary of State of Delaware on January 22, 1976.
SECOND: The Restated Certificate of Incorporation of Varian
Medical Systems, Inc. in the form attached hereto as EXHIBIT A restates and
integrates but does not further amend the Certificate of Incorporation of Varian
Medical Systems, Inc. and there is no discrepancy between the provisions of the
Corporation's Certificate of Incorporation as heretofore amended or supplemented
and the provisions of the Restated Certificate of Incorporation attached hereto,
which has been duly adopted in accordance with the provisions of Sections 245
and 141(b) of the General Corporation Law of the State of Delaware by the
affirmative vote of a majority of the directors of the Corporation at a meeting
of the Board of Directors duly noticed and held on August 20, 1999, at which a
quorum was present.
THIRD: The Restated Certificate of Incorporation so
adopted reads in full as set forth in EXHIBIT A attached hereto and
incorporated herein by this reference.
IN WITNESS WHEREOF, we have hereunto set our hands as
President and Secretary, respectively, of Varian Medical Systems, Inc. and
hereby affirm under penalties of perjury that the foregoing is our act and deed
and the facts herein stated are true, and accordingly have hereunto set forth
our hands this 23rd day of May, 2000.
/s/ Richard M. Levy
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Richard M. Levy, President
ATTEST: /s/ Joseph B. Phair
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Joseph B. Phair, Secretary
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EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
VARIAN MEDICAL SYSTEMS, INC.
A DELAWARE CORPORATION
ARTICLE I
The name of this corporation is Varian Medical Systems, Inc.
ARTICLE II
Its registered office is located at 1209 Orange Street, City
of Wilmington, County of New Castle, State of Delaware. The name of its
registered agent at that address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or
promoted by this corporation is to engage in research, development, manufacture,
service and sale of electronic and related products and to engage in any other
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE IV
This corporation shall be authorized to issue two classes of
stock to be designated, respectively, "Common" and "Preferred." The total number
of shares which this corporation shall have authority to issue shall be one
hundred million (100,000,000). The total number of shares of Common Stock shall
be ninety-nine million (99,000,000) and the par value of each share of Common
Stock shall be One Dollar ($1). The total number of shares of Preferred Stock
shall be one million (1,000,000) and the par value of each share of Preferred
Stock shall be One Dollar ($1).
The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby expressly vested with authority to
fix by resolution or resolutions the designations and the powers, preferences
and relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof (including, without
limitation, the voting powers, if any, the dividend rate, conversion rights,
redemption price, or liquidation preference of any series of Preferred Stock),
to fix the number of shares constituting any such series, and to increase or
decrease the number of shares of any such series (but not below the number of
shares thereof then outstanding). In case the number of shares of any such
series shall be so decreased, the shares constituting such decrease shall resume
the status which they had prior to the adoption of the resolution or resolutions
originally fixing the number of shares of such series.
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
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vote of the holders of a majority of the stock of the corporation entitled to
vote in the election of directors.
The Certificate of Designation heretofore adopted is attached
as Attachment 1.
ARTICLE V
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 this 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 this 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 certificate of 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. 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 each annual election the directors chosen to succeed those
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.
At all elections of directors of this corporation, each holder
of Common Stock shall be entitled to as many votes as shall equal the number of
votes which, except for this provision as to cumulative voting, he would be
entitled to cast for the election of directors with respect to his shares of
Common Stock, multiplied by the number of directors to be elected, and he may
cast all of such votes for a single nominee for director or may distribute them
among the number to be voted for, or for any two or more of them as he sees fit.
Every act or decision done or made by a majority of the whole
Board of Directors, acting at a meeting duly held at which a quorum is present,
or acting by written consent, shall be regarded as the act of the Board of
Directors unless a greater number be required by law or by this Certificate of
Incorporation.
ARTICLE VI
In furtherance and not in limitation of the powers conferred
by law, the Board of Directors is expressly authorized, by resolution passed by
a majority of the whole board, to make, amend, alter or repeal the By-Laws of
this corporation.
ARTICLE VII
This corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in any
manner now or hereafter prescribed by law, and all rights herein conferred upon
the stockholders are granted subject to this reservation.
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ARTICLE VIII
Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
ARTICLE IX
Meetings of stockholders may be held outside the State of
Delaware, if the By-Laws so provide. The books of this corporation may be kept
(subject to any provision of law) outside the State of Delaware. Elections of
directors need not be by ballot unless the By-Laws of this corporation shall so
provide.
ARTICLE X
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, except for any matter in respect of which such
director shall be liable under Section 174 of the General Corporation Law of the
State of Delaware or shall be liable by reason that, in addition to any and all
other requirements for such liability, he (i) shall have breached his duty of
loyalty to the corporation or its stockholders, (ii) shall not have acted in
good faith or, in failing to act, shall not have acted in good faith, (iii)
shall have acted in a manner involving intentional misconduct or a knowing
violation of the law, or (iv) shall have derived an improper personal benefit.
Neither the amendment nor repeal of this Article X, nor the adoption of any
provision of the Certificate of Incorporation inconsistent with this Article X
shall eliminate or reduce the effect of this Article X in respect of the matter
occurring, or any cause of action, suit or claim that but for this Article X
would accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
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CERTIFICATE OF DESIGNATION AND TERMS
OF PARTICIPATING PREFERRED STOCK
OF
VARIAN ASSOCIATES, INC.
Pursuant to Section 151 of the General
CORPORATION LAW OF THE STATE OF DELAWARE
We, the undersigned, J. Tracy O'Rourke and Joseph B. Phair, the Chairman of
the Board and Chief Executive Officer, and the Secretary, respectively, of
Varian Associates, Inc., a Delaware corporation (the "Corporation"), do hereby
certify as follows:
Pursuant to authority granted by Article IV of the Restated Certificate of
Incorporation, as amended, of the Corporation and in accordance with the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors of the Corporation has adopted the following
resolutions fixing the designation and certain terms, powers, preferences and
other rights of a new series of the Corporation's Preferred Stock, par value $1
per share, and certain qualifications, limitations and restrictions thereon:
RESOLVED, that there is hereby established a series of Preferred
Stock, par value $1 per share, of the Corporation, and the designation and
certain terms, powers, preferences and other rights of the shares of such
series, and certain qualifications, limitations and restrictions thereon,
are hereby fixed as follows:
(i) The distinctive serial designation of this series shall be
"Participating Preferred Stock" (hereinafter called "this Series").
Each share of this Series shall be identical in all respects with the
other shares of this Series except as to the dates from and after
which dividends thereon shall be cumulative.
(ii) The number of shares in this Series shall initially be
50,000, which number may from time to time be increased or decreased
(but not below the number then outstanding) by the Board of Directors.
Shares of this Series purchased by the Corporation shall be cancelled
and shall revert to authorized but unissued shares of Preferred Stock
undesignated as to series. Shares of this Series may be issued in
fractional shares, which fractional shares shall entitle the holder,
in proportion to such holder's fractional share, to all rights of a
holder of a whole share of this Series.
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(iii) The holders of full or fractional shares of this Series
shall be entitled to receive, when and as declared by the Board of
Directors, but only out of funds legally available therefor,
dividends, (A) on each date that dividends or other distributions
(other than dividends or distributions payable in Common Stock of the
Corporation) are payable on or in respect of Common Stock comprising
part of the Reference Package (as defined below), in an amount per
whole share of this Series equal to the aggregate amount of dividends
or other distributions (other than dividends or distributions payable
in Common Stock of the Corporation) that would be payable on such date
to a holder of the Reference Package (as hereinafter defined) and (B)
on the last day of March, June, September and December in each year,
in an amount per whole share of this Series equal to the excess (if
any) of $2.50 over the aggregate dividends paid per whole share of
this Series during the three month period ending on such last day.
Each such dividend shall be paid to the holders of record of shares of
this Series on the date, not exceeding sixty days preceding such
dividend or distribution payment date, fixed for the purpose by the
Board of Directors in advance of payment of each particular dividend
or distribution. Dividends on each full and each fractional share of
this Series shall be cumulative from the date such full or fractional
share is originally issued; provided that any such full or fractional
share originally issued after a dividend record date and on or prior
to the dividend payment date to which such record date relates shall
not be entitled to receive the dividend payable on such dividend
payment date or any amount in respect of the period from such original
issuance to such dividend payment date.
The term "Reference Package" shall initially mean 1,000 shares of
Common Stock, par value $1 per share ("Common Stock"), of the
Corporation. In the event the Corporation shall at any time after the
close of business on December 4, 1998 (A) declare of pay a dividend on
any Common Stock payable in Common Stock, (B) subdivide any Common
Stock or (C) combine any Common Stock into a smaller number of shares,
then and in each such case the Reference Package after such event
shall be the Common Stock that a holder of the Reference Package
immediately prior to such event would hold thereafter as a result
thereof.
Holders of shares of this Series shall not be entitled to any
dividends, whether payable in cash, property or stock, in excess of
full cumulative dividends, as herein provided on this Series.
So long as any shares of this series are outstanding, no
dividends (other than a dividend in Common Stock or in any other stock
ranking junior to this Series as to dividends and upon liquidation)
shall be declared or paid or set aside for payment or other
distribution declared or made upon the Common Stock or upon any other
stock ranking junior to this Series as to dividends or upon
liquidation, nor shall any Common Stock nor any other stock of the
Corporation ranking junior to or on a parity with this Series as
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to dividends or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange
for stock of the Corporation ranking junior to this Series as to
dividends and upon liquidation), unless, in each case, the full
cumulative dividends (including the dividend to be due upon payment of
such dividend, distribution, redemption, purchase or other
acquisition) on all outstanding shares of this Series shall have been,
or shall contemporaneously be, paid.
(iv) In the event of any merger, consolidation, reclassification
or other transaction in which the shares of Common Stock are exchanged
for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of this Series shall at the
same time be similarly exchanged or changed in an amount per whole
share equal to the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, that a
holder of the Reference Package would be entitled to receive as a
result of such transaction.
(v) In the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, the
holders of full and fractional shares of this Series shall be
entitled, before any distribution or payment is made on any date to
the holders of the Common Stock or any other stock of the Corporation
ranking junior to this Series upon liquidation, to be paid in full an
amount per whole share of this Series equal to the greater of (A) $100
or (B) the aggregate amount distributed or to be distributed prior to
such date in connection with such liquidation, dissolution or winding
up to a holder of the Reference Package (such greater amount being
hereinafter referred to as the "Liquidation Preference"), together
with accrued dividends to such distribution or payment date, whether
or not earned or declared. If such payment shall have been made in
full to all holders of shares of this Series, the holders of shares of
this Series as such shall have no right or claim to any of the
remaining assets of the Corporation.
In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to the first
paragraph of this Section (v), no such distribution shall be made on
account of any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such
liquidation, dissolution or winding up unless proportionate
distributive amounts shall be paid on account of the shares of this
Series, ratably in proportion to the full distributable amounts for
which holders of all such parity shares are respectively entitled upon
such liquidation, dissolution or winding up.
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Upon the liquidation, dissolution or winding up of the
Corporation, the holders of shares of this Series then outstanding
shall be entitled to be paid out of assets of the Corporation
available for distribution to its Stockholders all amounts to which
such holders are entitled pursuant to the first paragraph of this
Section (v) before any payment shall be made to the holders of Common
Stock or any other stock of the Corporation ranking junior upon
liquidation to this Series.
For the purposes of this Section (v), the consolidation or merger
of, or binding share exchange by, the Corporation with any other
corporation shall not be deemed to constitute a liquidation,
dissolution or winding up of the Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of Stockholders
required by law or by the Restated Certificate of Incorporation, as
amended, of the Corporation, each whole share of this Series shall, on
any matter, vote as a class with any other capital stock comprising
part of the Reference Package and voting on such matter and shall have
the number of votes thereon that a holder of the Reference Package
would have.
IN WITNESS WHEREOF, the undersigned have signed and attested this
certificate on the 20th day of November, 1998.
/s/ J. Tracy O'Rouke
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J. Tracy O'Rourke
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ Joseph B. Phair
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Joseph B. Phair
Vice President, General Counsel
and Secretary
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