EXHIBIT 3.2(a)
FIRST AMENDMENT TO
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
NOVOSTE CORPORATION
Pursuant to Section 607.0602 of the Florida Business Corporation
Act, Novoste Corporation, a Florida corporation (the "Corporation"), certifies
that:
1. The Articles of Incorporation of the Corporation were filed with
the Department of State on January 8, 1987, were amended by the Articles of
Amendment to the Articles of Incorporation filed on May 8, 1992, were further
amended by Articles of Amendment to the Articles of Incorporation filed on
January 25, 1995, were further amended by Articles of Amendment to the Articles
of Incorporation filed on July 27, 1995, were further amended by Articles of
Amendment to the Articles of Incorporation filed on December 19, 1995, and were
amended and restated by the Amended and Restated Articles of Incorporation filed
on May 28, 1996.
2. In accordance with the provisions of Section 607.0820 of the
Florida Business Corporation Act, this First Amendment to Amended and Restated
Articles of Incorporation was duly adopted by the Board of Directors of the
Corporation at a meeting duly called and legally held on October 25, 1996.
3. The Articles of Incorporation of the Corporation are amended by
adding the following to ARTICLE III, Section 2 thereof:
"(a) Series A Participating Preferred Stock. A series of Preferred Stock
is created out of the authorized but unissued shares of the capital stock of the
Corporation, such series to be designated "Series A Participating Preferred
Stock" (the "Participating Preferred Shares"), to consist of one million
(1,000,000) shares, par value $.01 per share, of which the preferences,
limitations and relative rights shall be as follows:
(i) Future Increase or Decrease. Subject to subsection (iv), clause
E. below, the number of shares of said series may at any time or from time to
time be increased or decreased by the Board of Directors notwithstanding that
shares of such series may be outstanding at such time of increase or decrease.
(ii) Dividend Rate. The holders of shares of Participating Preferred
Shares shall be entitled to receive when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of each November, February, May and August in
each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Participating Preferred Shares, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $20.00 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share amount of
all cash dividends and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock,
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Participating Preferred Shares. In the
event the Corporation shall at any time after October 25, 1996 (the "Rights
Declaration Date") (i) declare any dividend on Common Stock, payable in shares
of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each such
case the amount to which holders of shares of Participating Preferred Shares
were entitled immediately prior to such event under (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
A. On or after the first issuance of any share or fractional
share of Participating Preferred Shares, no dividend on Common Stock shall be
declared unless concurrently therewith a dividend or distribution is declared on
the Participating Preferred Shares as provided above; and the declaration of any
such dividend on the Common Stock shall be expressly conditioned upon payment or
declaration of and provision for a dividend on the Participating Preferred
Shares as provided above. In the event no dividend or distribution shall have
been declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $20.00 per share on the Participating Preferred Shares shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
B. Dividends shall begin to accrue and be cumulative on
outstanding shares of Participating Preferred Shares from the Quarterly Dividend
Payment Date immediately preceding the date of issue of such shares of
Participating Preferred Shares, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of
Participating Preferred Shares entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. The Board of
Directors may fix a record date for the determination of holders of shares of
Participating Preferred Shares entitled to receive payment of a dividend
distribution declared thereon, which record date shall be no more than 30 days
prior to the date fixed for the payment thereof.
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(iii) Dissolution, Liquidation and Winding Up.
A. In the event of any voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Corporation (hereinafter
referred to as a "Liquidation"), the holders of Participating Preferred Shares
shall receive at least $1,000 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the date
of such payment, provided that the holders of shares of Participating Preferred
Shares shall be entitled to receive at least an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of Common
Stock (the "Participating Preferred Liquidation Preference").
B. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding Common
Stock (by reclassification or otherwise than by payment of a dividend in Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount which holders of Participating Preferred Shares were
entitled immediately prior to such event pursuant to the proviso set forth in
clause A. above, shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(iv) Voting Rights. The holders of shares of Participating Preferred
Shares shall have the following voting rights: A. Each share of Participating
Preferred Shares shall entitle the holder thereof to one vote on all matters
submitted to a vote of the shareholders of the Company.
B. Except as otherwise provided herein, by law, the Articles
of Incorporation or the By-laws, the holders of shares of Participating
Preferred Shares and the holders of shares of Common Stock shall vote together
as one class on all matters submitted to a vote of shareholders of the Company.
C. If and whenever dividends on the Participating Preferred
Shares shall be in arrears in an amount equal to six quarterly dividend
payments, then and in such event the holders of the Participating Preferred
Shares, voting separately as a class (subject to the provisions of clause D.
below), shall be entitled at the next annual meeting of the shareholders or at
any special meeting to elect two directors. Each share of Participating
Preferred Shares shall be entitled to one vote, and holders of fractional shares
shall have the right to a fractional vote. Upon election, such directors shall
become additional directors of the Corporation and the authorized number of
directors of the Corporation shall thereupon be automatically increased by such
number of directors. Such right of the holders of Participating Preferred Shares
to elect directors may be exercised until all dividends in default on the
Participating Preferred Shares shall have been paid in full, and dividends for
the current dividend period declared and funds therefor set apart, and when so
paid and set apart, the right of the holders of Participating Preferred Shares
to elect such number of directors shall cease, the term of such directors shall
thereupon terminate, and the authorized number of directors of the Corporation
shall thereupon
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return to the number of authorized directors otherwise in effect, but subject
always to the same provisions for the vesting of such special voting rights in
the case of any such future dividend default or defaults. The fact that
dividends have been paid and set apart as required by the preceding sentence
shall be evidenced by a certificate executed by the President and the Chief
Financial Officer of the Corporation and delivered to the Board of Directors.
The directors so elected by holders of Participating Preferred Shares shall
serve until the certificate described in the preceding sentence shall have been
delivered to the Board of Directors or until their respective successors shall
be elected or appointed and qualify.
At any time when such special voting rights have been so
vested in the holders of the Participating Preferred Shares, the Secretary of
the Corporation may, and upon the written request of the holders of record of
10% or more of the number of shares of the Participating Preferred Shares then
outstanding addressed to such Secretary at the principal office of the
Corporation, shall, call a special meeting of the holders of the Participating
Preferred Shares for the election of the directors to be elected by them as
hereinabove provided, to be held in the case of such written request within
forty days after delivery of such request, and in either case to be held at the
place and upon the notice provided in the Corporation's By-laws for the holding
of meetings of shareholders; provided, however, that the Secretary shall not be
required to call such a special meeting (i) if any such request is received less
than ninety days before the date fixed for the next ensuing annual or special
meeting of shareholders or (ii) if at the time any such request is received, the
holders of Participating Preferred Shares are not entitled to elect such
directors by reason of the occurrence of an event specified in the third
sentence of clause D. below.
D. If, at any time when the holders of Participating Preferred
Shares are entitled to elect directors pursuant to the foregoing provisions of
this subsection (iv), the holders of any one or more additional series of
Preferred Stock are entitled to elect directors by reason of any default or
event specified in the Corporation's Articles of Incorporation, as amended, as
in effect at the time of the designation for such series, and if the terms for
such other additional series so permit, the voting rights of the two or more
series then entitled to vote shall be combined (with each series having a number
of votes proportional to the aggregate liquidation preference of its outstanding
shares). In such case, the holders of Participating Preferred Shares and of all
such other series then entitled so to vote, voting as a class, shall elect such
directors. If the holders of any such other series have elected such directors
prior to the happening of the default or event permitting the holders of
Participating Preferred Shares to elect directors, or prior to a written request
for the holding of a special meeting being received by the Secretary of the
Corporation from the holders of not less than 10% of the then outstanding shares
of Participating Preferred Shares, then such directors so previously elected
will be deemed to have been elected by and on behalf of the holders of
Participating Preferred Shares as well as such other series, without prejudice
to the right of the holders of Participating Preferred Shares to vote for
directors if such previously elected directors shall resign, cease to serve or
fail to stand for reelection while the holders of Participating Preferred Shares
are entitled to vote. If the holders of any such other series are entitled to
elect in excess of two directors, the Participating Preferred Shares shall not
participate in the election of more than two such directors, and those directors
whose terms first expire shall be deemed to be the directors elected by the
holders of Participating Preferred Shares; provided that, if at the expiration
of
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such terms the holders of Participating Preferred Shares are entitled to vote in
the election of directors pursuant to the provisions of this subsection (iv),
then the Secretary of the Corporation shall call a meeting (which meeting may be
the annual meeting or special meeting of shareholders referred to in clause C.)
of holders of Participating Preferred Shares for the purpose of electing
replacement directors (in accordance with the provisions of this subsection
(iv)) to be held on or prior to the time of expiration of the expiring terms
referred to above.
E. Except as otherwise set forth herein or required by law,
the Corporation's Articles of Incorporation or By-laws, holders of Participating
Preferred Shares shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for the taking of any corporate action. No
consent of the holders of outstanding shares of Participating Preferred Shares
at any time outstanding shall be required in order to permit the Board of
Directors to: (i) increase the number of authorized shares of Participating
Preferred Shares or to decrease such number to a number not below the sum of the
number of shares of Participating Preferred Shares then outstanding and the
number of shares with respect to which there are outstanding rights to purchase;
or (ii) to issue Preferred Stock which is senior to the Participating Preferred
Shares, junior to the Participating Preferred Shares or on a parity with the
Participating Preferred Shares.
(v) Redemption. The shares of Participating Preferred Shares shall
not be redeemable.
(vi) Conversion Rights. The Participating Preferred Shares are not
convertible into Common Stock or any other security of the Corporation."
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IN WITNESS WHEREOF, the undersigned have made, subscribed and
acknowledged this First Amendment to Amended and Restated Articles of
Incorporation this 25th day of October, 1996.
/s/ Thomas D. Weldon
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Thomas D. Weldon
President and Chief Executive Officer
/s/ Cheryl R. Johnson
-------------------------------------
Cheryl R. Johnson
Secretary
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