Exhibit A
Form of
ARTICLES OF AMENDMENT
OF
BIOJECT MEDICAL TECHNOLOGIES INC.
Pursuant to ORS 60.431, the undersigned corporation adopts the following
Articles of Amendment to its Articles of Incorporation:
FIRST: The name of the corporation is Bioject Medical Technologies Inc.
(the "Corporation").
SECOND: The Articles of Incorporation are hereby amended as follows:
Article X is hereby deleted in its entirety and replaced with a new Article
X to read as follows:
ARTICLE X
Directors
Section 1. Number of Directors.
The Board of Directors shall consist of not less than six nor more than
eleven, the exact number to be set herein. Until increased or decreased as
provided herein, the Board of Directors shall consist of eight members. The
Board of Directors is authorized to increase or decrease the size of the Board
of Directors (within the range specified above) at any time by the affirmative
vote of two-thirds of the directors then in office. Without the unanimous
consent of the directors then in office, no more than two additional directors
shall be added to the Board of Directors in any 12-month period. Without the
unanimous approval of the directors then in office, no person who is affiliated
as an owner, director, officer, employee or consultant of a company or business
deemed by the Board of Directors to be competitive with that of the Corporation
shall be eligible to serve on the Board of Directors of the Corporation.
Section 2. Classified Board.
The Board shall be divided into three classes: Class I Directors, Class II
Directors, and Class III Directors. Each such class of directors shall be nearly
equal in number of directors as possible. Each director shall serve for a term
ending at the third annual shareholders' meeting following the annual meeting at
which such director was elected; provided, however, that the directors first
elected as Class I Directors shall serve for a term ending at the annual meeting
to be held in the year following the first election of directors by classes, the
directors first elected as Class II Directors shall serve for a term ending at
the annual meeting to be held in the second year following the first election of
directors by classes and the directors first elected as Class III directors
shall serve for a term ending at the annual meeting to be held in the third year
following the first election of directors by classes. Notwithstanding the
foregoing, each director shall serve until his or her successor shall have been
elected and qualified or until his or her earlier death, resignation or removal.
At each annual election, the directors chosen to succeed those whose terms
then expire shall be identified as being of the same class as the directors they
succeed, unless, by reason of any intervening changes in the authorized number
of directors, the Board shall designate one or more directorships whose term
then expire as directorships of another class in order more nearly to achieve
equality in the number of directors among the classes. When the Board fills a
vacancy resulting from the death, resignation or removal of a director, the
director chosen to fill that vacancy shall be of the same class as the director
he or she succeeds, unless, by reason of any previous changes in the authorized
number of directors, the Board shall designate the vacant directorship as a
directorship of another class in order more nearly to achieve equality in the
number of directors among the classes. The terms of any director elected by the
Board to fill a vacancy will expire at the next shareholders meeting at which
directors are elected, despite the class such director has been elected to fill.
Notwithstanding the rule that the three classes shall be as nearly equal in
number of directors as possible, upon any change in the authorized number of
directors, each director then continuing to serve as such will nevertheless
continue as a director of the class of which he or she is a member, until the
expiration of his or her current term or his or her earlier death, resignation
or removal.
Newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from death,
resignation, removal or other cause shall be filled by the affirmative vote of a
majority of the remaining directors then in office, even though less than a
quorum of the Board of Directors. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
Section 3. Initial Directors as Classified.
The directors of the Corporation first elected to classes are eight (8) in
number and their names and class are:
NAME Class
- ------------------ -----
James C. O'Shea 3
John Ruedy, M.D. 3
William A. Gouveia 1
Grace Keeney Fey 2
Eric T. Herfindal 2
Richard J. Plestina 2
David H. de Weese 1
Michael T. Sember 3
- -------------
Section 4. Removal of Directors
Directors may be removed only for cause. For purposes of this Amendment,
"cause" shall mean that the director has: (i) committed an act of fraud or
embezzlement against the Corporation; (ii) been convicted of, or plead nolo
contendere to a crime involving moral turpitude; (iii) failed to perform the
director's duties as a director and such failure constitutes a breach of the
director's duty of loyalty to the Corporation or provides an improper personal
benefit to the director.
A new Article XII is hereby added and reads as follows:
ARTICLE XII
SHAREHOLDER APPROVAL OF CERTAIN EVENTS
Notwithstanding any provision of Articles of Incorporation, as amended, or
Bylaws of the Corporation, as amended, and notwithstanding the fact that some
lesser percentage may be allowed by law, any amendment, change or repeal of
Articles X or XII, or any other amendment of the Articles of Incorporation, as
amended, which would have the effect of modifying or permitting circumvention of
the provisions of Articles X or XII, shall require the following shareholder
votes: (i) the affirmative votes of 75 percent of all outstanding shares of the
Corporation entitled to vote on the matter, voting together as a single class;
and (ii) if any shares of the Corporation are entitled to vote on the matter as
a separate group, the affirmative vote of 75 percent of such shares, voting
separately.
THIRD: The amendment does not provide for an exchange, reclassification, or
cancellation of issued shares.
FOURTH: The foregoing amendment was adopted by the Board of Directors of
the Corporation on July 16, 1998 and by the shareholders of the Corporation on
September 10, 1998 in accordance with the provisions of ORS 60.437.
FIFTH: The number of shares of the corporation entitled to vote at the time
of such adoption was _______ shares of common stock, 692,694 shares of Series A
Convertible Preferred Stock and 134,333 shares of Series B Convertible Preferred
Stock, of which only the common stock was entitled to vote thereon.
SIXTH: The number of shares voting for and against such amendment were as
follows:
Class No. of Shares Voted For No. of Shares Voted Against
Common
Bioject Medical Technologies Inc.
Date: ______, 1998 By:___________________________
James C. O'Shea
President