-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, R3gtEyC88ouS5qHNbYjQi8s4QeroLVdTQsuGV3cF1B/UAzXB/Oztg9kUejKPtH9J KvsBrPnZxjVjBO6DN45pbA== 0000914062-02-000733.txt : 20021017 0000914062-02-000733.hdr.sgml : 20021017 20021017170513 ACCESSION NUMBER: 0000914062-02-000733 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20021016 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20021017 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NOVOSTE CORP /FL/ CENTRAL INDEX KEY: 0001012131 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 592787476 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-20727 FILM NUMBER: 02791850 BUSINESS ADDRESS: STREET 1: 3890 STEVE REYNOLDS BLVD CITY: NORCROSS STATE: GA ZIP: 30093 BUSINESS PHONE: 7707170904 MAIL ADDRESS: STREET 1: 4350 C INTERNATIONAL BLVD CITY: NORCROSS STATE: GA ZIP: 30093 8-K 1 novoste8k1002.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): OCTOBER 16, 2002 NOVOSTE CORPORATION ------------------------------------- (Exact name of registrant as specified in its charter)
FLORIDA 0-20727 59-2787476 (State or other jurisdiction of (Commission File (I.R.S. Employer incorporation or organization) Number) Identification No.)
3890 STEVE REYNOLDS BLVD., NORCROSS, GA 30093 ---------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (770) 717-0904 (Former name or former address, if changed since last report) ITEM 5. OTHER EVENTS. On October 16, 2002, the Company announced by press release that Alfred J. Novak has been appointed as the Company's chief executive officer. A copy of the press release is attached hereto as Exhibit 99.2 and is incorporated herein by reference. In addition, on October 16, 2002, the Board of Directors of the Company adopted two amendments to its Second Amended and Restated By-laws (the "By-laws"). In general, the amendments set forth certain notice requirements for shareholders when calling a special meeting of the Company's shareholders or submitting shareholder proposals (either a shareholder nomination of directors or other business) at annual meetings of the Company's shareholders. In addition, the amendment to the By-laws relating to the calling of a special meeting also establishes certain timing requirements for the setting of the record and meeting dates. Specifically, the amendments provide that, in addition to any other applicable requirements, for a shareholder to properly call a special meeting, the shareholder must deliver to the Secretary of the Company written notice and must include in such notice certain required information. Business transacted at the special meeting will be limited to the purposes stated in such notice. The Secretary will determine if the notice complies with the information requirements set forth in the By-laws. If the Secretary determines that the notice complies with the information requirements set forth in the By-laws, the Secretary will notify the Board of Directors. The Board of Directors will then meet or take action by written consent within 10 days from receiving such notice from the Secretary in order to fix (1) a record date to determine the shareholders entitled to receive notice of and to vote at the special meeting and (2) a date and location for the special meeting of shareholders. The record date set by the Board of Directors may not precede or be more than 10 days after the date of the meeting or written consent of the Board of Directors that fixed such record date. The date of the special meeting selected by the Board of Directors may not be earlier than 45 days or later than 70 days after the record date. The amendments also provide that, in addition to any other applicable requirements, for a shareholder proposal (either a shareholder nomination of directors or other business) to be properly brought before an annual meeting of shareholders, a shareholder must have delivered to the Secretary written notice not less than 90 days nor more than 120 days prior to the first anniversary of the date of the annual meeting for the prior year, except in certain circumstances. Such written notice must set forth certain required information including, if applicable, that information regarding each of the director nominees that would otherwise be required by the proxy rules promulgated by the Securities and Exchange Commission. 2 The foregoing description of the amendments to the By-laws does not purport to be complete and is qualified in its entirety by reference to the amendments which are attached hereto as Exhibit 99.1 and incorporated herein by reference. * * * 2 ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS (c) Exhibits Exhibit Number Exhibit Description - ------- ------------------- Exhibit 99.1 First Amendment to the Second Amended and Restated By-Laws of Novoste Corporation dated October 16, 2002 Exhibit 99.2 Press Release of the Company dated October 16, 2002 4 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. NOVOSTE CORPORATION Date: October 16, 2002 By: /s/ Edwin B. Cordell, Jr. ----------------------------------- Edwin B. Cordell, Jr. Vice President, CFO, Finance and Treasurer 5 INDEX TO EXHIBITS Exhibit Number Exhibit Description - ------- ------------------- Exhibit 99.1 First Amendment to the Second Amended and Restated By-Laws of Novoste Corporation dated October 16, 2002 Exhibit 99.2 Press Release of the Company dated October 16, 2002 1543914v1 EX-99.1 3 novoste8k1002ex991.txt AMENDMENT TO BYLAWS EXHIBIT 99.1 FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED BY-LAWS OF NOVOSTE CORPORATION DATED OCTOBER 16, 2002 Article III Section 3.03 of the Second Amended and Restated By-Laws of Novoste Corporation (the "By-laws") shall be amended and restated in its entirety to read as follows: "Section 3.03. Special Meetings. a. A special meeting of the shareholders for any purpose or purposes, unless otherwise prescribed by statute, may be called at any time by the President, the Chairman, by order of the Board of Directors or by a shareholder or shareholders holding of record at least ten percent (10%) in voting power of the outstanding shares of the Corporation entitled to vote at such meeting. Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice of meeting thereof. b. Any shareholder(s) wishing to call a special meeting pursuant to subparagraph (a) of this Section 3.03 shall provide notice thereof in writing to the Secretary of the Corporation at the principal executive offices of the Corporation. Such shareholder's notice shall set forth: (1) a brief description of the business that the shareholder proposes to bring before the special 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 special meeting and any material interest in such business of such shareholder and the beneficial owner, if any, on whose behalf the proposal is made; (2) if the matters to be considered at the special meeting include the election of directors, such shareholder notice shall set forth as to each person whom the shareholder proposes to nominate for election as a director (A) 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 (B) such person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (3) as to the shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (A) the name and address of such shareholder, as they appear on the Corporation's books, and of such beneficial owner, (B) the class and number of shares of capital stock of the Corporation which are owned beneficially and of record by such shareholder and such beneficial owner, and (C) a representation that the shareholder is a holder of record of stock of the Corporation entitled to vote at such special meeting and intends to appear in person or by proxy at the special meeting to propose such business or nomination; and (4) a request that the Board of Directors fix a record date and a meeting date for such special meeting. Upon receipt of such notice, the Secretary of the Corporation shall make a determination as to whether such notice is in accordance with the informational requirements of this subsection (b). If the Secretary determines that the notice is not in accordance with the informational requirements of this subsection (b), the Secretary shall notify the shareholder(s) in writing of such determination and the reasons therefore. If the Secretary determines that the notice is in accordance with the informational requirements of this subsection (b), the Secretary shall notify the Board of Directors of such determination. Upon notice by the Secretary that such notice has been received and is in accordance with the informational requirements of this subsection (b), the Board of Directors shall meet (or take action by written consent) within 10 days therefrom to fix (x) a record date in order that the Corporation may determine the shareholders entitled to notice of and to vote at the special meeting and (y) a meeting date and location for such special meeting. Such record date shall not precede the date upon which such Board of Directors' meeting occurs or written consent is executed and shall not be more than 10 days after the date upon which such Board of Directors' meeting occurs or written consent is executed. Such meeting date shall be no earlier than 45 days and no later than 70 days after the record date." Article III of the By-Laws shall be amended to add Section 3.07, which shall read in its entirety as follows: "Section 3.07. Notice of Shareholder Business and Nominations. a. Annual Meetings of Shareholders. (1) Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business to be considered by the shareholders may be made at an annual meeting of shareholders 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 shareholder of the Corporation who was a shareholder of record of the Corporation at the time the notice provided for in this Section 3.07 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 3.07. (2) For nominations or other business to be properly brought before an annual meeting by a shareholder pursuant to clause (C) of paragraph (a)(1) of this Section 3.07, the shareholder 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 2 Directors must constitute a proper matter for shareholder action. To be timely, a shareholder'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 ninetieth day nor earlier than the close of business on the one hundred twentieth day prior to the first anniversary of the preceding year's annual meeting (provided, however, that in the event that no annual meeting was held in the prior year or the date of the annual meeting is more than thirty days before or more than sixty days after such anniversary date, notice by the shareholder must be so delivered not later than the tenth day following the earlier of (A) the day on which public announcement of the date of such meeting is first made by the Corporation or (B) the date notice of the meeting was mailed to shareholders). 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 shareholder's notice as described above. Such shareholder's notice shall set forth: (A) as to each person whom the shareholder 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 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 shareholder 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, any material interest in such business of such shareholder and the beneficial owner, if any, on whose behalf the proposal is made and all information relating to such business that is required to be disclosed in solicitations of proxies for such business, or is otherwise required, in each case pursuant to and in accordance with Regulation 14A under the Exchange Act; and (C) as to the shareholder 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 shareholder, 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 shareholder and such beneficial owner, (iii) a representation that the shareholder 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 shareholder or the beneficial owner, if any, intends or is part of a group which intends (x) 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 (y) otherwise to solicit proxies from shareholders in support of such proposal or nomination. The foregoing notice requirements shall be deemed satisfied by a shareholder if the shareholder has notified the Corporation of his or her intention to present a proposal at an annual meeting in compliance with 3 Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act and such shareholder'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. b. Notwithstanding anything in the second sentence of paragraph (a)(2) of this Section 3.07 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 a public announcement by the Corporation naming the nominees for the additional directorships is not made at least one hundred days prior to the first anniversary of the preceding year's annual meeting, then a shareholder's notice required by this Section 3.07 shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary in writing 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." * * * 4 1543914v1 EX-99.2 4 novoste8k1002ex992.txt PRESS RELEASE EXHIBIT 99.2 1. PRESS RELEASE Contacts: Thomas D. Weldon Gerard van Hamel Platerink Chairman Director, Investor Relations (770) 717 0904 (770) 689 2735 NOVOSTE CORPORATION ANNOUNCES THE APPOINTMENT OF ALFRED J. NOVAK AS PRESIDENT AND CHIEF EXECUTIVE OFFICER Norcross, Ga., October 16, 2002 - Novoste Corporation (NASDAQ:NOVT) today announced the appointment of Alfred J. Novak as President and Chief Executive Officer (CEO). Mr. Novak will also join the Board of Directors effective October 16, 2002, replacing William A. Hawkins. Thomas D. Weldon, current Chairman and CEO, will remain Chairman of the Board of Directors. Mr. Novak joins Novoste with wide-ranging experience in the medical technology market, including 12 years at Cordis Corporation, a Johnson & Johnson company. Al is currently Chairman of the Board of two medical technology companies: Orbus Medical Technologies, Inc., a stent technology company, and Transurgical, Inc., which is focused on treating atrial fibrillation using high intensity ultrasound. Mr. Novak is also a Founding Member of Syntheon LLC, a company focused on minimally invasive medical devices for the vascular and gastroenterology markets. Between 1996 and 1998, Mr. Novak served as President and CEO of Biosense, Inc., which developed a technology that enables physicians to accurately and safely navigate medical instruments within patients' bodies during a wide variety of minimally invasive medical procedures. Biosense was sold to Johnson & Johnson in October, 1997. From 1984 to 1996 Mr. Novak worked at Cordis, the diversified medical device company. Between 1989 and 1996, he served as the company's Chief Financial Officer and was a member of the group's executive committee. He helped to manage the company's negotiated sale to Johnson & Johnson in February 1996 for $1.8 billion and managed the integration of Cordis with Johnson & Johnson's Interventional Systems business unit resulting in an operation with combined revenues of $1.3 billion. Mr. Novak's other responsibilities at Cordis included VP of Marketing and Sales (Americas Division), Head of Strategic Planning, Strategic Acquisitions, Human Resources, Corporate Development and Information Systems. Mr. Novak has an MBA from the Wharton School at the University of Pennsylvania and earned his B.S. at the U.S. Merchant Marine Academy. "I am extremely pleased that Al has joined the Novoste team", Thomas D. Weldon, Chairman, commented. "He has a first class track record in the medical device industry and will be a significant addition to our management team. His broad experience in managing public and private companies, business development and new product launches are all highly relevant to Novoste today, and we look forward to his leadership in the years ahead. This concludes the executive search process we commenced in February, and I firmly believe we have found the best candidate to serve Novoste's interests and help build shareholder value." Mr. Novak added, "I am extremely pleased to join Novoste at this pivotal time in the company's and the industry's history. I am confident I can help build on Novoste's impressive achievements to date and add value for shareholders and employees in the years ahead. I look forward to working with Tom, the management team and my new colleagues at Novoste." Mr. Weldon also said, "I would like to take this opportunity to thank Bill Hawkins for his many contributions to Novoste as Member of the Board. The Board and the company as a whole join me in wishing him all the best for the future." ABOUT NOVOSTE CORPORATION: Novoste Corporation, based in Atlanta GA, develops advanced medical treatments for coronary and vascular diseases and is the worldwide leader in vascular brachytherapy. The Company's Beta-Cath(TM) System is commercially available in the United States, as well as in the European Union and several other countries. Novoste Corporation shares are traded on the NASDAQ National Stock Market under the symbol NOVT. For general company information, please call (770) 717-0904 or visit the Company's web site at www.novoste.com. Statements made in this press release that look forward in time or that express management's beliefs, expectations or estimates regarding future occurrences are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Actual results may differ materially from those projected in these forward-looking statements based upon known and unknown risks and uncertainties, including continued market acceptance of the Beta-Cath(TM) System, continued demonstration of safety, efficacy, and device performance in post-market surveillance studies, competition and technological changes. These and other risks are detailed in documents filed by Novoste with the SEC including its Form 10-K for the year ended December 31, 2001 and its Form 10-Q for the quarter ended June 30, 2002. # # # 1543914v1 -----END PRIVACY-ENHANCED MESSAGE-----