Exhibit 3.2(a)
AMENDMENT TO
BYLAWS
OF
THE SPECTRANETICS CORPORATION
a Delaware corporation
WHEREAS, the Board of Directors has previously adopted the
Bylaws of the Corporation (the "Bylaws");
WHEREAS, pursuant to the Bylaws, the Board of Directors has
the power to adopt, amend or repeal the bylaws of the Corporation; and
WHEREAS, the Board of Directors now desires to amend the
Bylaws to provide that a stockholder must give timely notice in writing to the
Secretary of the Company of any nominations or other business to be properly
brought before an annual or special meeting.
NOW, THEREFORE, the Bylaws are hereby amended as follows:
1. Notice of Stockholder Business and Nominations. Section 1.3
of the Bylaws shall be deleted in its entirety and shall be replaced with the
following:
"Section 1.3 Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders. (1) Nominations of
persons for election to the Board of Directors of the Corporation and
the proposal of business to be considered by the stockholders may be
made at an annual meeting of stockholders only (a) pursuant to the
Corporation's notice of meeting (or any supplement thereto), (b) by or
at the direction of the Board of Directors or (c) by any stockholder of
the Corporation who was a stockholder of record of the Corporation at
the time the notice provided for in this Section 1.3 is delivered to
the Secretary of the Corporation, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this
Section 1.3.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause
(c) of paragraph (A)(1) of this Section 1.3, the stockholder must have
given timely notice thereof in writing to the Secretary of the
Corporation and any such proposed business other than the nominations
of persons for election to the Board of Directors must constitute a
proper matter for stockholder action. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the
sixtieth day nor earlier than the close of business on the ninetieth
day prior to the first anniversary of the preceding year's annual
meeting (provided, however, that in the event that the date of the
annual meeting is more than thirty days before or after the date of the
first anniversary of the preceding year's annual meeting, notice by the
stockholder to be timely must be so received not earlier than the close
of business on the ninetieth day prior to such annual meeting and not
later than the close of business on the later of the sixtieth day prior
to such annual meeting or the tenth day following the day on which
public announcement of the date of such meeting is first made by the
Corporation). In no event shall the public announcement of an
adjournment or postponement of an annual meeting commence a new time
period (or extend any time period) for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth:
(a) as to each person whom the stockholder proposes to nominate for
election as a director (i) all information relating to such person that
is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each
case pursuant to and in accordance with Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
(ii) such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected; (b) as
to any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought
before the meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the event
that such business includes a proposal to amend the By-laws of the
Corporation, the language of the proposed amendment), the reasons for
conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on
whose behalf the proposal is made; and (c) as to the stockholder giving
the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such
beneficial owner, (ii) the class and number of shares of capital stock
of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, (iii) a representation that the
stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at
the meeting to propose such business or nomination, and (iv) a
representation whether the stockholder or the beneficial owner, if any,
intends or is part of a group which intends (a) to deliver a proxy
statement and/or form of proxy to holders of at least the percentage of
the Corporation's outstanding capital stock required to approve or
adopt the proposal or elect the nominee and/or (b) otherwise to solicit
proxies from stockholders in support of such proposal or nomination.
The foregoing notice requirements shall be deemed satisfied by a
stockholder if the stockholder has notified the Corporation of his or
her intention to present a proposal at an annual meeting in compliance
with Rule 14a-8 (or any successor thereof) promulgated under the
Exchange Act and such stockholder's proposal has been included in a
proxy statement that has been prepared by the Corporation to solicit
proxies for such annual meeting. The Corporation may require any
proposed nominee to furnish such other information as it may reasonably
require to determine the eligibility of such proposed nominee to serve
as a director of the Corporation.
(3) Notwithstanding anything in the second sentence
of paragraph (A)(2) of this Section 1.3 to the contrary, in the event
that the number of directors to be elected to the Board of Directors of
the Corporation at an annual meeting is increased and there is no
public announcement by the Corporation naming the nominees for the
additional directorships at least one hundred days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's
notice required by this Section 1.3 shall also be considered timely,
but only with respect to nominees for the additional directorships, if
it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the
tenth day following the day on which such public announcement is first
made by the Corporation.
(B) Special Meetings of Stockholders. Only such business shall
be conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of
meeting. Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors are
to be elected pursuant to the Corporation's notice of meeting (1) by or
at the direction of the Board of Directors or (2) provided that the
Board of Directors has determined that directors shall be elected at
such meeting, by any stockholder of the Corporation who is a
stockholder of record at the time the notice provided for in this
Section 1.3 is delivered to the Secretary of the Corporation, who is
entitled to vote at the meeting and upon such election and who complies
with the notice procedures set forth in this Section 1.3. In the event
the Corporation calls a special meeting of stockholders for the purpose
of electing one or more directors to the Board of Directors, any such
stockholder entitled to vote in such election of directors may nominate
a person or persons (as the case may be) for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (A)(2) of this Section 1.3
shall be delivered to the Secretary at the principal executive offices
of the Corporation not earlier than the close of business on the
ninetieth day prior to such special meeting and not later than the
close of business on the later of the sixtieth day prior to such
special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of
the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new time period (or extend
any time period) for the giving of a stockholder's notice as described
above.
(C) General. (1) Only such persons who are nominated in
accordance with the procedures set forth in this Section 1.3 shall be
eligible to be elected at an annual or special meeting of stockholders
of the Corporation to serve as directors and only such business shall
be conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in this
Section 1.3. Except as otherwise provided by law, the chairman of the
meeting shall have the power and duty (a) to determine whether a
nomination or
any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set
forth in this Section 1.3 (including whether the stockholder or
beneficial owner, if any, on whose behalf the nomination or proposal is
made solicited (or is part of a group which solicited) or did not so
solicit, as the case may be, proxies in support of such stockholder's
nominee or proposal in compliance with such stockholder's
representation as required by clause (A)(2)(c)(iv) of this Section 1.3)
and (b) if any proposed nomination or business was not made or proposed
in compliance with this Section 1.3, to declare that such nomination
shall be disregarded or that such proposed business shall not be
transacted. Notwithstanding the foregoing provisions of this Section
1.3, if the stockholder (or a qualified representative of the
stockholder) does not appear at the annual or special meeting of
stockholders of the Corporation to present a nomination or business,
such nomination shall be disregarded and such proposed business shall
not be transacted, notwithstanding that proxies in respect of such vote
may have been received by the Corporation.
(2) For purposes of this Section 1.3, "public
announcement" shall include disclosure in a press release reported by
the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Section 1.3, 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 Section 1.3.
Nothing in this Section 1.3 shall be deemed to affect any rights (a) of
stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) of
the holders of any series of Preferred Stock to elect directors
pursuant to any applicable provisions of the certificate of
incorporation."
2. Miscellaneous. After the date of this Amendment, each
reference in the Bylaws to the Bylaws shall mean and refer to the Bylaws as
amended hereby. Except as provided in this Amendment, the Bylaws shall remain in
full force and effect and are hereby ratified and confirmed.