EXHIBIT 4.17(b)
JULY 29, 1999
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
OF
NOVOSTE CORPORATION
UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT,
RIGHTS ISSUED TO, OR HELD BY, ANY PERSON WHO IS, WAS OR BECOMES AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE THEREOF (AS DEFINED IN THE RIGHTS AGREEMENT)
AND CERTAIN RELATED PERSONS, WHETHER CURRENTLY HELD BY OR ON BEHALF OF SUCH
PERSON OR BY ANY SUBSEQUENT HOLDER, SHALL BECOME NULL AND VOID.
On October 25, 1996, the Board of Directors of Novoste Corporation,
a Florida corporation (the "Company"), declared a dividend of one preferred
share purchase right (a "Right") for each outstanding share of Common Stock, par
value $.01 per share (the "Common Shares"), of the Company. The dividend is
payable to the shareholders of record as of 5:00 P.M., New York, New York time,
on November 25, 1996 (the "Record Date"), and is payable with respect to Common
Shares issued thereafter until the Distribution Date (as hereinafter defined)
and, in certain circumstances, is payable with respect to Common Shares issued
after the Distribution Date.
Except as set forth below, each Right, when it becomes exercisable,
entitles the registered holder to purchase from the Company one one-hundredth of
a share of Series A Participating Preferred Stock, par value $.01 per share (the
"Preferred Shares"), at a price of $85.00 per one one-hundredth of a Preferred
Share (the "Purchase Price"), subject to adjustment. The description and terms
of the Rights are set forth in a Rights Agreement, dated as of October 25, 1996
(the "Rights Agreement"), between the Company and American Stock Transfer &
Trust Company (the "Rights Agent").
On July 29, 1999, the Board of Directors of the Company amended and
restated the Rights Agreement by deleting certain provisions set forth in
Sections 23 and 27 thereof. Such deleted provisions prevented the Board of
Directors from redeeming the Rights or amending the Rights Agreement for a
365-day period in the event that a majority of such Board was comprised of
individuals not nominated by the then current directors following (i) a meeting
of shareholders or (ii) shareholder action by written consent.
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Initially, the Rights will attach to all certificates representing
Common Shares then outstanding and no separate Right Certificates (as
hereinafter defined) will be distributed. The Rights will separate from the
Common Shares and a "Distribution Date" for the Rights will occur upon the
earlier of:
(i) the first date of public announcement that a person or
"group" has acquired beneficial ownership of 15% or more of the outstanding
Common Shares (except (a) pursuant to a Permitted Offer, as hereinafter defined
and (b) beneficial ownership of Common Shares by the Hillman Entities (as
defined in the Rights Agreement), provided that the Hillman Entities together
with all Affiliates and Associates thereof are not the beneficial owners of 20%
or more of the then outstanding Common Shares); or
(ii) ten business days (or such later date as the Board of
Directors of the Company may determine) following the commencement of, or
announcement of an intention to commence, a tender offer or exchange offer the
consummation of which would result in a person or group becoming an Acquiring
Person (as hereinafter defined).
A person or group whose acquisition of Common Shares causes a
Distribution Date pursuant to clause (i) above is an "Acquiring Person." The
first date of public announcement that a person or group has become an Acquiring
Person is the "Shares Acquisition Date."
The Rights Agreement provides that until the Distribution Date, the
Rights will be evidenced by the Common Share certificates and will be
transferred with and only with the Common Shares. Until the Distribution Date
(or earlier redemption or expiration of the Rights), new Common Share
certificates issued after the Record Date upon transfer or new issuance of
Common Shares will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or expiration of
the Rights), the surrender for transfer of any certificates for Common Shares
outstanding as of the Record Date, even without such notation or a copy of this
Summary of Rights being attached thereto, will also constitute the transfer of
the Rights associated with the Common Shares represented by such certificate. As
soon as practicable following the Distribution Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed to holders of record
of the Common Shares as of the close of business on the Distribution Date (and
to each initial record holder of certain Common Shares issued after the
Distribution Date), and such separate Right Certificates alone will evidence the
Rights.
The Rights are not exercisable until the Distribution Date and will
expire at 5:00 P.M., New York, New York time, on November 25, 2006, unless
earlier redeemed or exchanged by the Company as described below.
In the event that any person becomes an Acquiring Person (except
pursuant to a Permitted Offer), each holder of a Right will have (subject to the
terms of the Rights Agreement) the right (the "Flip-In Right") to receive upon
exercise the number of Common Shares, or, in the discretion of the Board of
Directors of the Company, of one one-hundredths of a Preferred Share (or, in
certain circumstances, other securities of the Company) having a value
(immediately prior to such triggering event) equal to two times the Purchase
Price. Notwithstanding the foregoing,
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following the occurrence of the event described above, all Rights that are, or
(under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person or any affiliate or associate thereof
will be null and void.
A "Permitted Offer" is a tender or exchange offer for all
outstanding Common Shares which is at a price and on terms determined, prior to
the purchase of shares under such tender or exchange offer, by a majority of
Disinterested Directors (as hereinafter defined), to be adequate (taking into
account all factors that such Disinterested Directors deem relevant) and
otherwise in the best interests of the Company and its shareholders (other than
the person, or any affiliate or associate thereof, on whose basis the offer is
being made), taking into account all factors that such Disinterested Directors
may deem relevant. "Disinterested Directors" are directors of the Company who
are not employees of the Company and who are not Acquiring Persons or affiliates
or associates thereof, or representatives of any of them, or any person who was
directly or indirectly proposed or nominated as a director of the Company by a
Transaction Person (as hereinafter defined).
In the event that, at any time following the Shares Acquisition
Date, (i) the Company is acquired in certain mergers or other business
combination transactions in which the holders of all of the outstanding Common
Shares immediately prior to the consummation of the transaction are not the
holders of all of the surviving corporation's voting power, (ii) 50% or more of
the Company's assets or earning power are sold or transferred, in either case
with or to an Acquiring Person or any affiliate or associate thereof, or any
other person in which such Acquiring Person, affiliate or associate has an
interest, or any person acting on behalf of or in concert with such Acquiring
Person, affiliate or associate, or, if in such transaction all holders of Common
Shares are not treated alike, any other person, or (iii) the Company shall
effect a statutory share exchange with outstanding Common Shares of the Company
exchanged for stock or other securities of any other person, money or other
property, then in each case the holder of a Right (except Rights which
previously have been voided as set forth above) shall thereafter have the right
(the "Flip-Over Right") to receive, upon exercise, common shares of the
acquiring company having a value equal to two times the Purchase Price.
At any time after a person or group of affiliated or associated
persons becomes an Acquiring Person (subject to certain exceptions) and prior to
the acquisition by a person or group of affiliated or associated persons of 50%
or more of the outstanding Common Shares, the Board of Directors of the Company
may exchange all or part of the then outstanding and exercisable Rights (other
than Rights which have become void under the terms of the Rights Agreement) for
Common Shares at an exchange ratio of one Common Share per Right, subject to
adjustment.
The Purchase Price payable, and. the number of one-hundredths of a
Preferred Share or other securities issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution: (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights, options or warrants to subscribe for or purchase Preferred
Shares at a price, or securities convertible into Preferred Shares with a
conversion price, less than the then current market price of the Preferred
Shares, or (iii) upon the distribution to holders of the Preferred Shares of
evidences of indebtedness or assets (excluding regular quarterly cash dividends)
or of subscription rights or warrants (other than those referred to in clause
(ii) above).
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The Purchase Price is also subject to adjustment in the event of a
stock split of the Common Shares, or a stock dividend on the Common Shares
payable in Common Shares, or subdivisions, consolidations or combinations of the
Common Shares occurring, in any such case, prior to the Distribution Date.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional one-hundredths of a Preferred Share will be
issued, and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to the earlier to occur of (i) a person becoming
an Acquiring Person or (ii) the expiration of the Rights, the Company may redeem
the Rights in whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"), which redemption shall be effective upon the action of the
Board of Directors of the Company. Additionally, the Company may redeem the then
outstanding Rights in whole, but not in part, at the Redemption Price after the
triggering of the Flip-In Right and before the expiration of any period during
which the Flip-In Right may be exercised in connection with a merger or other
business combination transaction or series of transactions involving the Company
in which all holders of Common Shares are treated alike but not involving a
Transaction Person (as hereinafter defined). Upon the effective date of the
redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Redemption Price.
If any term, provision, covenant or restriction of the Rights
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of the Rights Agreement shall remain in full force
and effect and shall in no way be affected, impaired or invalidated; provided,
however, that if any such term, provision, covenant or restriction is held by
such court or authority to be invalid, void or unenforceable, and the Board of
Directors of the Company determines, at a time when a majority of the directors
then serving are Disinterested Directors, in their good-faith judgment that
severing the invalid language from the Rights Agreement would adversely affect
the purpose or effect thereof, the Company's right of redemption described in
the preceding paragraph shall be reinstated (if such right has expired or been
terminated) and shall not expire until the close of business on the tenth day
following the date of such determination by the Board of Directors.
The Board of Directors and the Company shall not have any liability
to any person as a result of the redemption or exchange of the Rights pursuant
to the provisions of the Rights Agreement.
Until a Right is exercised, the holder thereof, as such, will have
no rights as a shareholder of the Company, including, without limitation, the
right to vote or to receive dividends. While the distribution of the Rights will
not be taxable to shareholders or to the Company, shareholders may, depending
upon the circumstances, recognize taxable income should the Rights become
exercisable or upon the occurrence of certain events thereafter.
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A copy of the Rights Agreement, as amended and restated on July 29,
1999, has been filed with the Securities and Exchange Commission as an Exhibit
to an Amendment No. 1 to Registration Statement on Form 8-A/A dated July 29,
1999. A copy of the current Rights Agreement is available free of charge from
the Company by contacting the Corporate Secretary at Novoste Corporation, 3890
Steve Reynolds Boulevard, Norcross, Georgia 30093. This summary description of
the Rights does not purport to be complete and is qualified entirely by
reference to the Rights Agreement, which is hereby incorporated herein by
reference.
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