EXHIBIT 3.2
BY-LAWS
OF
VARIAN, INC.
A Delaware Corporation
As adopted on February __, 1999, to be effective on March ___, 1999
TABLE OF CONTENTS
PAGE
ARTICLE I OFFICES................................................................................. 1
Section 1. Registered Office.................................................................. 1
Section 2. General Office and Other Offices................................................... 1
ARTICLE II STOCKHOLDERS' MEETINGS.................................................................. 1
Section 3. Annual Meeting..................................................................... 1
Section 4. Business to be Conducted at Annual Meeting......................................... 1
Section 5. Special Meetings................................................................... 2
Section 6. Place of Meetings.................................................................. 2
Section 7. Notice of Meetings................................................................. 3
Section 8. Nominations of Directors........................................................... 3
Section 9. List of Stockholders............................................................... 4
Section 10. Quorum............................................................................. 4
Section 11. Voting and Required Vote........................................................... 5
Section 12. Proxies............................................................................ 5
Section 13. Inspectors of Election; Polls...................................................... 5
Section 14. Organization....................................................................... 5
Section 15. No Stockholder Action by Written Consent........................................... 5
ARTICLE III BOARD OF DIRECTORS...................................................................... 6
Section 16. General Powers, Number, Term of Office............................................. 6
Section 17. Vacancies.......................................................................... 6
Section 18. Chairman of the Board.............................................................. 6
Section 19. Regular Meetings................................................................... 7
Section 20. Special Meetings................................................................... 7
Section 21. Notices............................................................................ 7
Section 22. Conference Telephone Meetings...................................................... 7
Section 23. Quorum............................................................................. 7
Section 24. Organization....................................................................... 8
Section 25. Resignations....................................................................... 8
Section 26. Removal............................................................................ 8
Section 27. Action Without a Meeting........................................................... 8
Section 28. Location of Books.................................................................. 8
-i-
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 29. Dividends.......................................................................... 8
Section 30. Compensation of Directors.......................................................... 8
Section 31. Additional Powers.................................................................. 9
ARTICLE IV COMMITTEES OF DIRECTORS................................................................. 9
Section 32. Designation, Power, Alternate Members.............................................. 9
Section 33. Quorum, Manner of Acting........................................................... 9
Section 34. Minutes............................................................................ 9
ARTICLE V ADVISORY DIRECTORS...................................................................... 10
Section 35. Advisory Directors................................................................. 10
ARTICLE VI OFFICERS................................................................................ 10
Section 36. Designation........................................................................ 10
Section 37. Election and Term.................................................................. 10
Section 38. Removal............................................................................ 10
Section 39. Resignations....................................................................... 10
Section 40. Vacancies.......................................................................... 10
Section 41. Chief Executive Officer............................................................ 10
Section 42. President.......................................................................... 11
Section 43. Vice Presidents.................................................................... 11
Section 44. Secretary.......................................................................... 11
Section 45. Assistant Secretaries.............................................................. 11
Section 46. Chief Financial Officer............................................................ 11
Section 47. Treasurer.......................................................................... 11
Section 48. Assistant Treasurers............................................................... 12
Section 49. Controller......................................................................... 12
Section 50. Assistant Controllers.............................................................. 12
ARTICLE VII CONTRACTS, INSTRUMENTS AND PROXIES...................................................... 12
Section 51. Contracts and Other Instruments.................................................... 12
Section 52. Proxies............................................................................ 12
ARTICLE VIII CAPITAL STOCK........................................................................... 13
Section 53. Stock Certificates; Book-Entry Accounts............................................ 13
Section 54. Record Ownership................................................................... 13
-ii-
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 55. Record Dates....................................................................... 13
Section 56. Transfer of Stock.................................................................. 13
Section 57. Lost, Stolen or Destroyed Certificates............................................. 13
Section 58. Terms of Preferred Stock........................................................... 14
ARTICLE IX INDEMNIFICATION......................................................................... 14
Section 59. Right of Indemnification Generally................................................. 14
Section 60. Written Request; Determination of Entitlement...................................... 15
Section 61. Recovery of Unpaid Claim........................................................... 15
Section 62. Exclusivity; Subsequent Modification............................................... 15
Section 63. Insurance.......................................................................... 16
Section 64. Other Persons Granted Right of Indemnification..................................... 16
Section 65. Illegality; Unenforceability....................................................... 16
Section 66. Form and Delivery of Communications................................................ 16
ARTICLE X MISCELLANEOUS........................................................................... 16
Section 67. Corporate Seal..................................................................... 16
Section 68. Fiscal Year........................................................................ 17
Section 69. Auditors........................................................................... 17
Section 70. Waiver of Notice................................................................... 17
ARTICLE XI AMENDMENT TO BY-LAWS.................................................................... 17
Section 71. Amendments......................................................................... 17
-iii-
BY-LAWS
OF
VARIAN, INC.
A Delaware Corporation
As adopted on February ___, 1999, to be effective on March ___, 1999
ARTICLE I
OFFICES
Section 1. Registered Office. The name of the registered agent of
-----------------
Varian, Inc. (the "Corporation") is The Corporation Trust Company and the
registered office of the Corporation shall be located in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. General Office and Other Offices. The Corporation shall have
--------------------------------
its General Offices in the City of Palo Alto, State of California (the "General
Offices"), and may also have offices at such other places in or outside the
State of Delaware as the Board of Directors of the Corporation (the "Board of
Directors") may from time to time designate or the business of the Corporation
may require.
ARTICLE II
STOCKHOLDERS' MEETINGS
Section 3. Annual Meeting. An annual meeting of stockholders shall be
--------------
held on such day and at such time as may be designated by the Board of Directors
for the purpose of electing directors and for the transaction of such other
business as properly may come before such meeting. Any previously scheduled
annual meeting of the stockholders may be postponed by resolution of the Board
of Directors upon public notice given on or prior to the date previously
scheduled for such annual meeting of stockholders.
Section 4. Business to be Conducted at Annual Meeting.
------------------------------------------
(a) At an annual meeting of stockholders, only such business shall
be conducted as shall have been brought before the meeting (i) pursuant to the
Corporation's notice of the meeting, (ii) by or at the direction of the Board of
Directors or (iii) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of the notice provided for in this By-Law, who
shall be entitled to vote at such meeting and who shall have complied with the
notice procedures set forth in this By-Law.
(b) For business to be properly brought before an annual meeting
by a stockholder pursuant to clause (a)(iii) of this By-Law, notice in writing
must be delivered or mailed to the Secretary and received at the General
Offices, not less than 60 days nor more than 90 days prior to the first
anniversary of the date on which the Corporation first mailed its proxy
materials for the preceding year's annual meeting of stockholders; provided,
however, that in the event that the date of the meeting is advanced by more than
30 days or delayed by more than 60
days from such meeting's anniversary date, notice by the stockholder must be
received not earlier than the 90/th/ day prior to such date of mailing of proxy
materials and not later than the close of business on the later of the 60/th/
day prior to such date of mailing of proxy materials or the 10/th/ day following
the day on which public announcement of the date of the annual meeting is first
made. Such stockholder's notice shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief description
of the business to be brought before the annual meeting and the reasons for
conducting such business at such meeting; (ii) the name and address, as they
appear on the Corporation's books, of the stockholder proposing such business,
and the name and address of the beneficial owner, if any, on whose behalf the
proposal is made; (iii) the class and number of shares of the Corporation's
stock which are beneficially owned by the stockholder, and by the beneficial
owner, if any, on whose behalf the proposal is made; and (iv) any material
interest of the stockholder, and of the beneficial owner, if any, on whose
behalf the proposal is made, in such business. For purposes of these By-Laws,
"public announcement" shall mean disclosure in a press release reported by the
Dow Jones News Service, Associated Press or comparable news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(c) Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this By-Law. The chairman of the meeting may, if the
facts warrant, determine that the business was not properly brought before the
meeting in accordance with the provisions of this By-Law; and if the chairman
should so determine, the chairman shall so declare to the meeting, and any such
business not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this By-Law, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this By-Law.
Nothing in this By-Law shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation's proxy statement pursuant to
Rule 14a-8 under the Exchange Act, and any such proposal so included shall be
deemed timely given for purposes of this By-Law.
Section 5. Special Meetings. Special meetings of stockholders for any
----------------
proper purpose or purposes, unless otherwise provided by the General Corporation
Law of the State of Delaware or in any Certificate of Designation designating
any series of Preferred Stock pursuant to Article IV of the Restated Certificate
of Incorporation of the Corporation (the "Certificate of Incorporation") that
shall be in effect under the General Corporation Law of the State of Delaware (a
"Preferred Stock Designation"), may be called by the Chairman of the Board, the
Chief Executive Officer or the President, or in the absence of each of them, by
the Secretary at the written request of a majority of the directors. Business
transacted at a special meeting of stockholders shall be confined to the purpose
or purposes of the meeting as stated in the notice of the meeting. Any
previously scheduled special meeting of the stockholders may be postponed by
resolution of the Board of Directors upon notice by public announcement given on
or prior to the date previously scheduled for such special meeting of
stockholders.
Section 6. Place of Meetings. All meetings of stockholders shall be held
-----------------
at such place as may be determined by resolution of the Board of Directors.
2
Section 7. Notice of Meetings. Except as otherwise required by
------------------
applicable law, notice of each meeting of the stockholders, whether annual or
special, shall, at least 10 days but not more than 60 days before the date of
the meeting, be given to each stockholder of record entitled to vote at the
meeting by mailing such notice in the U.S. mail, postage prepaid, addressed to
such stockholder at such stockholder's address as the same appears on the
records of the Corporation. Such notice shall state the place, date and hour of
the meeting, and in the case of a special meeting, shall also state the purpose
or purposes thereof.
Section 8. Nominations of Directors.
------------------------
(a) Only persons who are nominated in accordance with the
procedures set forth in these By-Laws shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors may be
made at a meeting of stockholders (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of the notice provided for in this By-Law, who
shall be entitled to vote for the election of directors at the meeting and who
complies with the notice procedures set forth in this By-Law.
(b) Nominations by stockholders shall be made pursuant to notice
in writing, delivered or mailed to the Secretary and received at the General
Offices (i) in the case of an annual meeting, not less than 60 days nor more
than 90 days prior to the first anniversary of the date on which the Corporation
first mailed its proxy materials for the preceding year's annual meeting of
stockholders, provided, however, that in the event that the date of the meeting
is advanced by more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the stockholder must be received not earlier than
the 90/th/ day prior to such date of mailing of proxy materials and not later
than the close of business on the later of the 60/th/ day prior to such date of
mailing of proxy materials or the 10/th/ day following the day on which public
announcement of the date of the meeting is first made; or (ii) in the case of a
special meeting at which directors are to be elected, not earlier than the
90/th/ day prior to such special meeting and not later than the close of
business on the later of the 60/th/ day prior to such special meeting or the
10/th/ day following the day on which public announcement of the date of the
meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting is first made. In the case of a special meeting of stockholders at
which directors are to be elected, stockholders may nominate a person or persons
(as the case may be) for election only to such position(s) as are specified in
the Corporation's notice of meeting as being up for election at such meeting.
Such stockholder's notice shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a director, all
information relating to such person that would be required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Exchange Act (including such
person's written consent to being named as a nominee and to serving as a
Director if elected); (ii) as to the stockholder giving the notice, the name and
address, as they appear on the Corporation's books, of such stockholder and the
class and number of shares of the Corporation's stock which are beneficially
owned by such stockholder; and (iii) as to any beneficial owner on whose behalf
the nomination is made, the name and address of such person and the class and
number of shares of the Corporation's stock which are beneficially owned by such
person. At the request of the Board of Directors, any person nominated by the
Board of Directors for election as a director shall furnish to the Secretary
that information required to be
3
set forth in a stockholder's notice of nomination that pertains to the nominee.
Notwithstanding anything in this By-Law to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the Corporation
is increased and there is no public statement naming all the nominees for
Director or specifying the size of the increased Board of Directors made by the
Corporation at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this By-Law shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
General Offices not later than the close of business on the 10/th/ day following
the day on which such public announcement is first made by the Corporation.
(c) No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in
these By-Laws. The chairman of the meeting may, if the facts warrant, determine
that a nomination was not made in accordance with the procedures prescribed in
this By-Law; and if the chairman should so determine, the chairman shall so
declare to the meeting, and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this By-Law, a stockholder shall
also comply with all applicable requirements of the Exchange Act, and the rules
and regulations thereunder with respect to the matters set forth in this By-Law.
Section 9. List of Stockholders.
--------------------
(a) The Secretary of the Corporation shall prepare, at least 10
days before each meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
(b) The stock ledger of the Corporation shall be the only evidence
as to the identity of the stockholders entitled (i) to vote in person or by
proxy at any meeting of stockholders, or (ii) to exercise the rights in
accordance with applicable law to examine the stock ledger, the list required by
this By-Law or the books and records of the Corporation.
Section 10. Quorum. The holders of a majority of the stock issued and
------
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum for the transaction of any business at all
meetings of the stockholders, except as otherwise provided by applicable law, by
the Certificate of Incorporation or by these By-Laws. The stockholders present
at any duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of sufficient stockholders to render
the remaining stockholders less than a quorum. Whether or not a quorum is
present, either the Chairman of the meeting or a majority of the stockholders
entitled to vote thereat, present in person or by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting. If the adjournment is for more than 30 days, or if after the
4
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. At such adjourned meeting at which the requisite amount of
voting stock shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally noticed.
Section 11. Voting and Required Vote. Subject to the provisions of the
------------------------
Certificate of Incorporation, each stockholder shall, at every meeting of
stockholders, be entitled to one vote for each share of capital stock held by
such stockholder. Subject to the provisions of the Certificate of Incorporation
and applicable law, directors shall be chosen by the vote of a plurality of the
shares present in person or represented by proxy at the meeting; and all other
questions shall be determined by the affirmative vote of the majority of shares
present in person or represented by proxy at the meeting. Elections of
directors shall be by written ballot.
Section 12. Proxies. Each stockholder entitled to vote at a meeting of
-------
stockholders may authorize another person or persons to act for such stockholder
by proxy, provided the instrument authorizing such proxy to act shall have been
executed in writing in the manner prescribed by applicable law. No proxy shall
be voted or acted upon after three years from its date, unless the proxy
provides for a longer period.
Section 13. Inspectors of Election; Polls. Before each meeting of
-----------------------------
stockholders, the Chairman of the Board or another officer of the Corporation
designated by resolution of the Board of Directors shall appoint one or more
inspectors of election for the meeting and may appoint one or more inspectors to
replace any inspector unable to act. If any of the inspectors appointed shall
fail to attend, or refuse or be unable to serve, substitutes shall be appointed
by the chairman of the meeting. Each inspector shall have such duties as are
provided by applicable law, and shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of such person's ability. The chairman of the meeting shall fix and
announce at the meeting the date and time of the opening and closing of the
polls for each matter upon which the stockholders will vote at the meeting.
Section 14. Organization. The Chairman of the Board of Directors, or in
------------
the Chairman's absence, (i) the Chief Executive Officer, (ii) the Vice Chairman
of the Board of Directors, (iii) the President, or (iv) in the absence of each
of them, a chairman chosen by a majority of the directors present, shall act as
chairman of the meetings of the stockholders, and the Secretary or, in the
Secretary's absence, an Assistant Secretary or any employee of the Corporation
appointed by the chairman of the meeting, shall act as secretary of the meeting.
The order of business and the procedure at any meeting of stockholders shall be
determined by the chairman of the meeting.
Section 15. No Stockholder Action by Written Consent. 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.
5
ARTICLE III
BOARD OF DIRECTORS
Section 16. General Powers, Number, Term of Office. The business of the
--------------------------------------
Corporation shall be managed under the direction of its Board of Directors.
Subject to the rights of the holders of any series of preferred stock, $0.01 par
value per share, of the Corporation ("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 resolution of a
majority of the then authorized number of directors of the Corporation (the
number of then authorized directors of the Corporation is referred to herein as
the "Whole Board"), 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 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.
Section 17. Vacancies. 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 resulting from
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.
Section 18. Chairman of the Board. The Chairman of the Board of Directors
---------------------
shall be chosen from among the directors. The Chairman of the Board shall
preside at all meetings of the stockholders and of the Board of Directors,
except as may be otherwise required under applicable law. The Chairman shall
act in an advisory capacity with respect to matters of policy and other matters
of importance pertaining to the affairs of the Corporation. The Chairman,
alone or with the Chief Executive Officer, the President, and/or the Secretary
shall sign and send out reports and other messages which are to be sent to
stockholders from time to time. The
6
Chairman shall also perform such other duties as may be assigned to the Chairman
by these By-Laws or the Board of Directors. The Board of Directors may also
choose a Vice Chairman of the Board of Directors from among the directors, which
Vice Chairman if chosen shall perform such duties as may be assigned by these
By-Laws, the Board of Directors or the Chairman of the Board.
Section 19. Regular Meetings. Following the annual meeting of
----------------
stockholders, the first meeting of each newly elected Board of Directors may be
held, without notice, on the same day and at the same place as such
stockholders' meeting. The Board of Directors by resolution may provide for the
holding of regular meetings and may fix the times and places at which such
meetings shall be held. Notice of regular meetings shall not be required
provided that whenever the time or place of regular meetings shall be fixed or
changed, notice of such action shall be given promptly to each director, as
provided in Section 21 below, who was not present at the meeting at which such
action was taken.
Section 20. Special Meetings. Special meetings of the Board of Directors
----------------
shall be held whenever called by the Chairman of the Board of Directors, the
Vice Chairman of the Board, the Chief Executive Officer or the President, or in
the absence of each of them, by the Secretary at the written request of a
majority of the directors.
Section 21. Notices. Notice of any special meeting of the Board of
-------
Directors shall be addressed to each director at such director's residence or
business address and shall be sent to such director by mail, electronic mail,
telecopier, telegram or telex or telephoned or delivered to such director
personally. If such notice is sent by mail, it shall be sent not later than
three days before the day on which the meeting is to be held. If such notice is
sent by electronic mail, telecopier, telegram or telex, it shall be sent not
later than 24 hours before the time at which the meeting is to be held. If such
notice is delivered personally, it shall be received not later than 24 hours
before the time at which the meeting is to be held. If such notice is
telephoned, it shall be to such telephone number or numbers of which the
director from time to time shall advise the Secretary for receiving such notice.
If given by telephone call, notice shall be deemed given to a director when a
message stating the time, place and purpose of the meeting is left with a person
answering the telephone at any such number with a request that the director be
so informed, or if no such telephone number is answered, then when at least two
attempts have been made to reach each telephone number designated by the
director for receiving telephonic notice, with an interval of not less than one
hour. A certification shall be prepared and filed with the minutes stating the
date, time and results of telephonic notice given to any director not present at
a meeting with respect to which his waiver of notice of meeting is not filed
with the minutes. In all cases, such notice shall state the time, place and
purpose or purposes of the meeting.
Section 22. Conference Telephone Meetings. Members of the Board of
-----------------------------
Directors or any committee thereof, may participate in a meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 23. Quorum. One-half of the total number of directors
------
constituting the Whole Board, but not less than two, shall constitute a quorum
for the transaction of business at any
7
meeting of the Board of Directors, but if less than such required number of
directors for a quorum is present at a meeting, a majority of the directors
present may adjourn the meeting from time to time without further notice. Except
as otherwise specifically provided by applicable law, the Certificate of
Incorporation or these By-Laws, the act of a majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors.
Section 24. Organization. At each meeting of the Board of Directors, the
------------
Chairman of the Board or, in the Chairman's absence, (i) the Chief Executive
Officer, if a member of the Board of Directors, (ii) the Vice Chairman of the
Board, (iii) the President, if a member of the Board of Directors, or (iv) in
the absence of each of them, a chairman chosen by a majority of the directors
present, shall act as chairman of the meeting, and the Secretary or, in the
Secretary's absence, an Assistant Secretary or any employee of the Corporation
appointed by the chairman of the meeting, shall act as secretary of the meeting.
Section 25. Resignations. Any Director may resign at any time by giving
------------
written notice to the Chairman of the Board, the Chief Executive Officer, the
President or the Secretary of the Corporation. Such resignation shall take
effect upon receipt thereof or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 26. Removal. 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.
For purposes of these By-Laws, "Voting Stock" shall mean the outstanding shares
of capital stock of the Corporation entitled to vote generally in the election
of directors.
Section 27. Action Without a Meeting. Unless otherwise restricted by the
------------------------
Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 28. Location of Books. Except as otherwise provided by resolution
-----------------
of the Board of Directors and subject to applicable law, the books of the
Corporation may be kept at the General Offices and at such other places as may
be necessary or convenient for the business of the Corporation.
Section 29. Dividends. Subject to the provisions of the Certificate of
---------
Incorporation and applicable law, dividends upon the capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting. Dividends may be paid in cash, in property, or in shares of the
Corporation's capital stock.
Section 30. Compensation of Directors. Directors shall receive such
-------------------------
compensation and benefits as may be determined by resolution of the Board of
Directors for their services as members of the Board of Directors and
committees. Directors shall also be reimbursed for their
8
expenses of attending Board of Directors and committee meetings. Nothing
contained herein shall preclude any Director from serving the Corporation in any
other capacity and receiving compensation therefor.
Section 31. Additional Powers. In addition to the powers and authorities
-----------------
by these By-Laws expressly conferred upon it, the Board of Directors may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
ARTICLE IV
COMMITTEES OF DIRECTORS
Section 32. Designation, Power, Alternate Members. The Board of Directors
-------------------------------------
may, by resolution or resolutions passed by a majority of the Whole Board,
designate an Executive Committee and one or more additional committees, each
committee to consist of one or more of the directors of the Corporation. Any
such committee, to the extent provided in said resolution or resolutions and
subject to any limitations provided by applicable law, shall have and may
exercise the powers of the Board of Directors in the management of the business
and affairs of the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. If at a meeting of any
committee one or more of the members thereof is absent or disqualified, and if
either the Board of Directors has not so designated any alternate member or
members, or the number of absent or disqualified members exceeds the number of
alternate members who are present at such meeting, then the member or members of
such committee (including alternates) present at any meeting and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another Director to act at the meeting in the place of such
absent or disqualified member. The term of office of the members of each
committee shall be as fixed from time to time by the Board of Directors;
provided, however, that any committee member who ceases to be a member of the
Board of Directors shall automatically cease to be a committee member.
Section 33. Quorum, Manner of Acting. At any meeting of a committee, the
------------------------
presence of one-half of its members then in office shall constitute a quorum for
the transaction of business; and the act of a majority of the members present at
a meeting at which a quorum is present shall be the act of the committee. Each
committee may provide for the holding of regular meetings, make provision for
the calling of special meetings and, except as otherwise provided in these By-
Laws or by resolution of the Board of Directors, make rules for the conduct of
its business.
Section 34. Minutes. The committees shall keep minutes of their
-------
proceedings and report the same to the Board of Directors when required; but
failure to keep such minutes shall not affect the validity of any acts of the
committee or committees.
9
ARTICLE V
ADVISORY DIRECTORS
Section 35. Advisory Directors. The Board of Directors may, by resolution
------------------
adopted by a majority of the Whole Board, appoint such Advisory Directors as the
Board of Directors may from time to time determine. The Advisory Directors
shall have such advisory responsibilities as the Chairman of the Board may
designate and the term of office of such Advisory Directors shall be as fixed by
the Board of Directors.
ARTICLE VI
OFFICERS
Section 36. Designation. The officers of the Corporation shall be the
-----------
Chief Executive Officer, a President, a Secretary, a Chief Financial Officer, a
Treasurer and a Controller. The Board of Directors may also elect one or more
Executive Vice Presidents, Senior Vice Presidents, Group Vice Presidents, Vice
Presidents, Assistant Secretaries, Assistant Treasurers, Assistant Controllers
and such other officers as it shall deem necessary. Any number of offices may be
held by the same person.
Section 37. Election and Term. At its first meeting after each annual
-----------------
meeting of stockholders, the Board of Directors shall elect the officers of the
Corporation and at any time thereafter the Board of Directors may elect
additional officers of the Corporation, and each such officer shall hold office
until the officer's successor is elected and qualified or until the officer's
earlier death, resignation or removal. Alternatively, at the last regular
meeting of the Board of Directors prior to an annual meeting of stockholders,
the Board of Directors may elect the officers of the Corporation, contingent
upon the election of the persons nominated to be directors by the Board of
Directors; and each such officer so elected shall hold office until the
officer's successor is elected and qualified or until the officer's earlier
death, resignation or removal.
Section 38. Removal. Any officer shall be subject to removal or
-------
suspension at any time, for or without cause, by the affirmative vote of a
majority of the Whole Board.
Section 39. Resignations. Any officer may resign at any time by giving
------------
written notice to the Chairman of the Board, the President or to the Secretary.
Such resignation shall take effect upon receipt thereof or at any later time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 40. Vacancies. A vacancy in any office because of death,
---------
resignation, removal or any other cause may be filled for the unexpired portion
of the term by the Board of Directors.
Section 41. Chief Executive Officer. The Chief Executive Officer shall
-----------------------
have the general and active management and supervision of the business of the
Corporation. The Chief Executive Officer, if a member of the Board of
Directors, shall, in the absence of the Chairman of the Board, preside at all
meetings of the stockholders and of the Board of Directors. The Chief Executive
Officer shall see that all orders and resolutions of the Board of Directors are
10
carried into effect. The Chief Executive Officer shall also perform such other
duties as may be assigned to the Chief Executive Officer by these By-Laws or the
Board of Directors. The Chief Executive Officer shall designate who shall
perform the duties of the Chief Executive Officer in the Chief Executive
Officer's absence.
Section 42. President. The President shall perform such duties as may be
---------
assigned to the President by these By-Laws, the Board of Directors or, if
applicable, the Chief Executive Officer.
Section 43. Vice Presidents. Each Executive Vice President, Senior Vice
---------------
President, Group Vice President and each other Vice President shall perform the
duties and functions and exercise the powers assigned to such officer by these
By-Laws, the Board of Directors, the Chief Executive Officer or the President.
Section 44. Secretary. The Secretary shall attend all meetings of the
---------
Board of Directors and of the stockholders and record all votes and the minutes
of all proceedings in a book to be kept for that purpose. The Secretary shall
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors and, when appropriate, shall cause
the corporate seal to be affixed to any instruments executed on behalf of the
Corporation. The Secretary shall also perform all duties incident to the office
of Secretary and such other duties as may be assigned to the Secretary by these
By-Laws, the Board of Directors, the Chairman of the Board, the Chief Executive
Officer or the President.
Section 45. Assistant Secretaries. The Assistant Secretaries shall,
--------------------
during the absence of the Secretary, perform the duties and functions and
exercise the powers of the Secretary. Each Assistant Secretary shall perform
such other duties as may be assigned to such Assistant Secretary by these By-
Laws, the Board of Directors, the Chairman of the Board, the Chief Executive
Officer, the President or the Secretary.
Section 46. Chief Financial Officer. The Chief Financial Officer shall
-----------------------
have overall responsibility for causing (1) the funds and securities of the
Corporation to be deposited in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors or by any
officer or officers authorized by the Board of Directors to designate such
depositories; (2) the disbursement of funds of the Corporation when properly
authorized by vouchers prepared and approved by the Controller; (3) the
investment of funds of the Corporation when authorized by the Board of Directors
or a committee thereof; and (4) to be kept full and accurate account of receipts
and disbursements in books of the Corporation. The Chief Financial Officer shall
render to the Board of Directors, the Chief Executive Officer, or the President,
whenever requested, an account of all transactions as Chief Financial Officer
and shall also perform all duties incident to the office of Chief Financial
Officer and such other duties as may be assigned to the Chief Financial Officer
by these By-Laws, the Board of Directors, the Chief Executive Officer, or the
President.
Section 47. Treasurer. The Treasurer shall have the custody of the funds
---------
and securities of the Corporation and shall deposit them in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors or by any officer or officers authorized by the Board of Directors
to designate such depositories; disburse
11
funds of the Corporation when properly authorized by vouchers prepared and
approved by the Controller; and invest funds of the Corporation when authorized
by the Board of Directors or a committee thereof. The Treasurer shall render to
the Board of Directors, the Chief Executive Officer, the President or the Chief
Financial Officer, whenever requested, an account of all transactions as
Treasurer and shall also perform all duties incident to the office of Treasurer
and such other duties as may be assigned to the Treasurer by these By-Laws, the
Board of Directors, the Chief Executive Officer, the President or the Chief
Financial Officer.
Section 48. Assistant Treasurers. The Assistant Treasurers shall, during
--------------------
the absence of the Treasurer, perform the duties and functions and exercise the
powers of the Treasurer. Each Assistant Treasurer shall perform such other
duties as may be assigned to the Assistant Treasurer by these By-Laws, the Board
of Directors, the Chief Executive Officer, the President, the Chief Financial
Officer or the Treasurer.
Section 49. Controller. The Controller shall serve as the principal
----------
accounting officer of the Corporation and shall keep full and accurate account
of receipts and disbursements in books of the Corporation and render to the
Board of Directors, the Chief Executive Officer, the President or the Chief
Financial Officer, whenever requested, an account of all transactions as
Controller and of the financial condition of the Corporation. The Controller
shall also perform all duties incident to the office of Controller and such
other duties as may be assigned to the Controller by these By-Laws, the Board of
Directors, the Chief Executive Officer or the President.
Section 50. Assistant Controllers. The Assistant Controllers shall,
---------------------
during the absence of the Controller, perform the duties and functions and
exercise the powers of the Controller. Each Assistant Controller shall perform
such other duties as may be assigned to such officer by these By-Laws, the Board
of Directors, the Chief Executive Officer, the President or the Controller.
ARTICLE VII
CONTRACTS, INSTRUMENTS AND PROXIES
Section 51. Contracts and Other Instruments. Except as otherwise required
-------------------------------
by applicable law, the Certificate of Incorporation or these By-Laws, any
contracts or other instruments may be signed by such person or persons as from
time to time may be designated by the Board of Directors or by any officer or
officers authorized by the Board of Directors to designate such signers; and the
Board of Directors or such officer or officers may determine that the signature
of any such authorized signer may be facsimile. Such authority may be general or
confined to specific instances as the Board of Directors or such officer or
officers may determine.
Section 52. Proxies. Except as otherwise provided by resolution of the
-------
Board of Directors, any officer of the Corporation shall each have full power
and authority, in behalf of the Corporation, to exercise any and all rights of
the Corporation with respect to any meeting of stockholders of any corporation
in which the Corporation holds stock, including the execution
12
and delivery of proxies therefor, and to consent in writing to action by such
corporation without a meeting.
ARTICLE VIII
CAPITAL STOCK
Section 53. Stock Certificates; Book-Entry Accounts. The interest of each
---------------------------------------
stockholder of the Corporation shall be evidenced by (a) certificates signed by,
or in the name of the Corporation by, the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Chief Financial
Officer or the Treasurer, and by the Secretary or any Assistant Secretary of the
Corporation, certifying the number of shares owned by such holder in the
Corporation, or (b) registration in book-entry accounts without certificates for
shares of stock in such form as the appropriate officers of the Corporation may
from time to time prescribe. Any of or all the signatures on a stock
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
Section 54. Record Ownership. The Corporation shall be entitled to treat
----------------
the person in whose name any share, right or option 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, right or option on the part of any
other person, whether or not the Corporation shall have notice thereof, except
as otherwise provided by applicable law.
Section 55. Record Dates. In order that the Corporation may determine the
------------
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors and which shall not be more than 60 nor less than 10
days before the date of such meeting, nor more than 60 days prior to any other
action.
Section 56. Transfer of Stock. Transfers of shares of stock of the
-----------------
Corporation shall be made only on the books of the Corporation by the registered
holder thereof, or by the registered holder's attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary or a transfer agent
of the Corporation, and on surrender of the certificate or certificates for such
shares properly endorsed and the payment of all taxes thereon, or by appropriate
book-entry procedures.
Section 57. Lost, Stolen or Destroyed Certificates. The Board of
--------------------------------------
Directors may authorize a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of the
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of
13
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or the owner's legal representative, to give the Corporation a
bond sufficient to indemnify it against any claim that may be made against the
Corporation on account of the alleged loss, theft or destruction of such
certificate or the issuance of such new certificate.
Section 58. Terms of Preferred Stock. The provisions of these By-Laws,
------------------------
including those pertaining to voting rights, election of directors and calling
of special meetings of stockholders, are subject to the terms, preferences,
rights and privileges of any then outstanding class or series of Preferred Stock
as set forth in the Certificate of Incorporation, any Preferred Stock
Designation and in any resolutions of the Board of Directors providing for the
issuance of such class or series of Preferred Stock; provided, however, that the
provisions of any such Preferred Stock shall not affect or limit the authority
of the Board of Directors to fix, from time to time, the number of directors
which shall constitute the Whole Board as provided in Section 16 above, subject
to the right of the holders of any class or series of Preferred Stock to elect
additional directors as and to the extent specifically provided by the
provisions of such Preferred Stock.
ARTICLE IX
INDEMNIFICATION
Section 59. Right of Indemnification Generally.
----------------------------------
(a) Directors, Officers and Employees. Each person who was or is
made a party or is threatened to be made a party to or is involved in any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
or a person of whom he or she is the legal representative is or was a director,
officer or employee of the Corporation or is or was serving at the request of
the Corporation as a legal representative, director, officer, employee or agent
of another corporation or of a limited liability company, partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the General Corporation Law of the State of
Delaware as the same exists or may hereafter be amended against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith; provided, however,
that except as provided in Section 60 below, the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors.
(b) Advance of Expenses; Undertaking. Each person referred to in
paragraph (a) of this By-Law shall be paid by the Corporation the expenses
incurred in connection with any proceeding described in paragraph (a) of this
By-Law in advance of its final disposition, such advances to be paid by the
Corporation within 30 days after the receipt by the Corporation of a statement
or statements from the claimant requesting such advance or advances from time to
time; provided, however, that, if the General Corporation Law of the State of
Delaware requires,
14
the advancement of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not, unless otherwise required by
applicable law, in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) prior to the final disposition of a proceeding,
shall be made only upon delivery to the Corporation of an undertaking by or on
behalf of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Article IX or otherwise.
(c) Contract Right. The right to indemnification conferred in this
Article IX and the right to be paid by the Corporation the expenses incurred in
connection with any such proceeding in advance of its final disposition
conferred in this Article IX each shall be a contract right.
Section 60. Written Request; Determination of Entitlement. To obtain
---------------------------------------------
indemnification under this Article IX, a claimant shall submit to the
Corporation a written request, including therein or therewith such documentation
and information as is reasonably available to the claimant and is reasonably
necessary to determine whether and to what extent the claimant is entitled to
indemnification. Any determination regarding whether indemnification of any
person is proper in the circumstances because such person has met the applicable
standard of conduct set forth in the General Corporation Law of the State of
Delaware shall be made at the option of the person seeking indemnification, by
the directors as set forth in the General Corporation Law of the State of
Delaware or by independent legal counsel selected by such person with the
consent of the Corporation (which consent shall not unreasonably be withheld).
Section 61. Recovery of Unpaid Claim. If a claim under Section 58 above
------------------------
is not paid in full by the Corporation within 30 days after a written claim
pursuant to Section 59 above has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than actions brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the
State of Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its directors, independent
legal counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its directors, independent legal
counsel or stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 62. Exclusivity; Subsequent Modification. The right to
------------------------------------
indemnification and the payment of expenses incurred in connection with a
proceeding in advance of its final disposition conferred in this Article IX
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation,
15
By-Laws, agreement, vote of stockholders or directors or otherwise. No repeal or
modification of this Article IX shall in any way diminish or adversely affect
the rights hereunder of any director, officer or employee or of any agent who
has been expressly granted indemnification by the Corporation pursuant to
Section 63 below in respect of any occurrence or matter arising prior to any
such repeal or modification.
Section 63. Insurance. The Corporation may maintain insurance, at its
---------
expense, to protect itself and any legal representative, director, officer,
employee or agent of the Corporation or another corporation, limited liability
company, partnership, joint venture, trust or other enterprise 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
General Corporation Law of the State of Delaware. To the extent that the
Corporation maintains any policy or policies providing such insurance, each such
legal representative, director, officer or employee, and each such agent to
which rights to indemnification have been granted as provided in Section 63
below shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage thereunder for any such legal
representative, director, officer, employee or agent.
Section 64. Other Persons Granted Right of Indemnification. The
----------------------------------------------
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, and rights to be paid by the
Corporation the expenses incurred in defending any proceeding in advance of its
final disposition, to any agent of the Corporation to the fullest extent of the
provisions of this Article IX with respect to the indemnification and
advancement of expenses of directors, officers and employees of the Corporation.
Section 65. Illegality; Unenforceability. If any provision or provisions
----------------------------
of this Article IX shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (1) the validity, legality and enforceability of the
remaining provisions of this Article IX (including, without limitation, each
portion of any Section or subsection of this Article IX containing any such
provision held to be invalid, illegal or unenforceable, that is not itself held
to be invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (2) to the fullest extent possible, the provisions of this
Article IX (including, without limitation, each such portion of any Section or
subsection of this Article IX containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
Section 66. Form and Delivery of Communications. Any notice, request or
-----------------------------------
other communication required or permitted to be given to the Corporation under
this Article IX shall be in writing and either delivered in person or sent by
telecopy, telex, telegram, overnight mail or courier service, or certified or
registered mail, postage prepaid, return receipt requested, to the Secretary of
the Corporation.
ARTICLE X
MISCELLANEOUS
Section 67. Corporate Seal. The seal of the Corporation shall be circular
--------------
in form, containing the words "Varian, Inc." and the word "Delaware" on the
circumference surrounding
16
the word "Seal." Said seal may be used by causing it or a facsimile thereof to
be impressed or affixed or in any other manner reproduced.
Section 68. Fiscal Year. The fiscal year of the Corporation is the 51- to
-----------
53-week period that ends on the Friday nearest September 30.
Section 69. Auditors. The Board of Directors shall select certified
--------
public accountants to audit the books of account and other appropriate corporate
records of the Corporation annually and at such other times as the Board of
Directors shall determine by resolution.
Section 70. Waiver of Notice. Whenever notice is required to be given
----------------
pursuant to applicable law, the Certificate of Incorporation or these By-Laws, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting of stockholders or the Board of Directors or
a committee thereof shall constitute a waiver of notice of such meeting, except
when the stockholder or Director attends such meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders or the Board of Directors or committee thereof need be specified in
any written waiver of notice unless so required by the Certificate of
Incorporation or by these By-Laws.
ARTICLE XI
AMENDMENT TO BY-LAWS
Section 71. Amendments. These By-Laws may be amended or repealed, or new
----------
By-Laws may be adopted, at any meeting of the Board of Directors or of the
stockholders, provided notice of the proposed change was given in the notice of
the meeting and, in the case of a meeting of the Board of Directors, in a notice
given not less than 24 hours prior to the meeting; provided, however, that in
the case of amendment, repeal or adoption by stockholders, notwithstanding any
other provisions of these By-Laws 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, the
Certificate of Incorporation or any Preferred Stock Designation, the affirmative
vote of the holders of at least 66 2/3% of the voting power of the then
outstanding shares of the Voting Stock, voting together as a single class, shall
be required for the stockholders to adopt, amend or repeal any provision of
these By-Laws.
17