-----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, Jblpa2IsQxF12iL6mmNCyvuBldBx3fuOHHQdA3VKkJ23iBjdnW3RRxbqNTOC9Wso P0RXDPNZM4ov7Aj4MT5tcg== 0001005477-99-003008.txt : 19990805 0001005477-99-003008.hdr.sgml : 19990805 ACCESSION NUMBER: 0001005477-99-003008 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990629 EFFECTIVENESS DATE: 19990629 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NOVOSTE CORP /FL/ CENTRAL INDEX KEY: 0001012131 STANDARD INDUSTRIAL CLASSIFICATION: 3845 IRS NUMBER: 592787476 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-10662 FILM NUMBER: 99654811 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 S-8 POS 1 POST EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 As filed with the Securities and Exchange Commission on June 29, 1999. Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------- POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 NOVOSTE CORPORATION (Exact name of registrant as specified in its charter) Florida 59-2787476 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 3890 Steve Reynolds Blvd. 30093 Norcross, Georgia (Zip Code) (Address of principal executive offices) Novoste Corporation Non-Employee Director Stock Option Plan (Full title of the plan) WILLIAM A. HAWKINS Chief Executive Officer and President Novoste Corporation 3890 Steve Reynolds Blvd. Norcross, Georgia 30093 (Name and address of agent for service) (770) 717-0904 (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
============================================================================================== Proposed Proposed maximum maximum offering aggregate Title of securities to Amount to be price per offering Amount of be registered registered share(1) price(1) registration fee - - ---------------------------------------------------------------------------------------------- Common Stock, $.01 par value 100,000 shares(2) $20.99 $2,099,000 $583.52 ==============================================================================================
- - ---------- (1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933 on the basis of (i) 10,000 shares underlying outstanding options under the Non-Employee Director Stock Option Plan at a weighted average exercise price of $20.94 per share and (ii) the 90,000 balance of shares reserved for issuance under the Non-Employee Director Stock Option Plan at an average aggregate offering price of $21.00 per share, as computed based on the average of the high and low prices of the Common Stock reported in the consolidated reporting system on The Nasdaq Stock Market as of June 25, 1999. (2) Consists of 100,000 shares of Common Stock issuable upon exercise of options granted or to be granted under the Non-Employee Director Stock Option Plan. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information.* Item 2. Registrant Information and Employee Plan Annual Information.* *Information required by Part I to be contained in the Section 10(a) prospectus is omitted from the Registration Statement in accordance with Rule 428 of the Securities Act of 1933, as amended, and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT The contents of the Registrant's Registration Statement on Form S-8 (File No. 333-48823) are incorporated by reference in this Registration Statement including, without limitation, the Quarterly Report on Form 10-Q of the Registrant for the fiscal quarter ended March 31, 1999. SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Norcross, State of Georgia, on this 28th day of June, 1999. NOVOSTE CORPORATION By: /s/ William A. Hawkins ------------------------------------- William A. Hawkins Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Hawkins and David N. Gill, and each of them, with full power to act without the other, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission and any other regulatory authority, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as they or he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities set forth and on the date indicated. Signature Title Date - - --------- ----- ---- /s/ William A. Hawkins Chief Executive Officer, June 28, 1999 - - ----------------------------------- President and Director William A. Hawkins (Principal Executive Officer) /s/ David N. Gill Chief Operating Officer June 24, 1999 - - ----------------------------------- and Chief Financial David N. Gill Officer (Principal Financial and Accounting Officer) /s/ Thomas D. Weldon Chairman of the Board and June 24, 1999 - - ----------------------------------- Director Thomas D. Weldon /s/ Norman R. Weldon Director June 23, 1999 - - ----------------------------------- Norman R. Weldon, Ph.D. /s/ Charles E. Larsen Director June 24, 1999 - - ----------------------------------- Charles E. Larsen /s/ Donald C. Harrison Director June 25, 1999 - - ----------------------------------- Donald C. Harrison /s/ J. Stephen Holmes Director June 25, 1999 - - ----------------------------------- J. Stephen Holmes /s/ Pieter J. Schiller Director June 24 , 1999 - - ----------------------------------- Pieter J. Schiller /s/ Stephen I. Shapiro Director June 23, 1999 - - ----------------------------------- Stephen I. Shapiro /s/ William E. Whitmer Director June 24, 1999 - - ----------------------------------- William E. Whitmer INDEX TO EXHIBITS Exhibit No. Description --- ----------- 4.1 Copy of the Registrant's Non-Employee Director Stock Option Plan. 5 Opinion of Epstein Becker & Green, P.C. 23(a) Consent of Ernst & Young LLP. 23(b) Consent of Epstein Becker & Green, P.C. (included in Exhibit 5). 24 Power of Attorney (included in signature page of 24 this Registration Statement). EX-4.1 2 STOCK OPTION PLAN EXHIBIT 4.1 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN OF NOVOSTE CORPORATION As Amended and Restated as of December 18, 1998 1. Purpose of Plan. The purpose of this Non-Employee Director Stock Option Plan ("Plan") is to provide additional incentives to Non-Employee Directors (as defined below) of Novoste Corporation ("Company") to promote the financial success and progress of the Company by granting such persons options to purchase shares of the Company's Common Stock ("Common Stock"). The options to purchase shares of Common Stock under this Plan shall not qualify under Section 422 of the Internal Revenue Code of 1986, as amended. 2. Definition of "Non-Employee Director". As defined by Regulation 240.16b-3 under the Securities Exchange Act of 1934, as amended ("Exchange Act"), a "Non-Employee Director" is a person not currently an officer of the Company or a parent or subsidiary, who does not receive compensation either directly or indirectly as a consultant of the Company (except for an amount not required to be disclosed under Item 404(a) of Regulation S-K, e.g., not more than $60,000), does not have an interest in a transaction requiring disclosure under Item 404(a) of Regulation S-K, and is not engaged in a business relationship which would require disclosure under Item 404(b) of Regulation S-K (e.g., where the director has a ten percent or more equity interest in an entity which makes or receives payments in excess of five percent of the Company's or that entity's consolidated gross revenues). 3. Adoption of Plan. This Plan shall be effective on the date that it is adopted by the Board of Directors of the Company ("Board"). The Board shall have and may exercise any and all of the powers relating to the administration of this Plan and the grant of options hereunder as are set forth herein. 4. Administration. (a) This Plan shall be administered by the Board. (b) The Board shall have the authority to (i) exercise all of the powers granted to it under this Plan, (ii) construe, interpret and implement this Plan and any Stock Option Agreements executed pursuant to Section 8 hereof, (iii) prescribe, amend and rescind rules and regulations relating to this Plan, (iv) make all determinations necessary or advisable in administering this Plan and (v) correct any defect, supply any omission and reconcile any inconsistency in this Plan. (c) The determination of the Board on all matters relating to this Plan or any Stock Option Agreement shall be final, binding and conclusive. (d) No member of the Board shall be liable for any action or determination made in good faith with respect to this Plan or any award thereunder. 5. Eligibility. Individuals who are Non-Employee Directors of the Company shall be eligible to participate in this Plan. Each Non-Employee Director to whom an option is granted hereunder is referred to as an "Optionee." 6. Shares Subject to this Plan. The maximum number of shares of Common Stock that may be issued pursuant to options granted under this Plan to all Optionees is 200,000 shares, which shares may, at the discretion of the Board, be either authorized but unissued shares or shares previously issued and reacquired by the Company. Such number of shares shall be subject to adjustment as provided in this Plan. If any option is terminated or unpurchased in whole or in part for any reason without being exercised in whole or in part, the shares thereby released from such option shall be available for purchase under other options subsequently granted under this Plan. At all times during the term of this Plan, the Company shall reserve and keep available such number of shares of Common Stock as shall be required to satisfy the requirements of outstanding options under this Plan. 7. Granting of Options; Effective Date. Until the expiration or sooner termination of this Plan, the Board, at any time and from time to time, may grant options to Non-Employee Directors for such number of shares, at such option price, and subject to the terms and provisions of this Plan. The date on which the grant of an option is authorized by the Board shall be the effective date of grant for all purposes, notwithstanding the fact that written acceptance by the Optionee of such grant may take place thereafter. 8. Terms and Conditions of Options. All options granted under this Plan shall be evidenced by a written Stock Option Agreement (which may incorporate the provisions of this Plan by reference and which shall be in such form as the Board shall approve) signed by the President of the Company and the Optionee. All options shall be granted subject to the following terms and conditions: (a) Exercise Price. The exercise price per share with respect to each option shall not be less than the Fair Market Value of a share of Common Stock 2 on the date of grant. (b) Fair Market Value. The term "Fair Market Value" as used herein as of any date and in respect of any share of Common Stock means the closing sale price for a share of Common Stock on the immediately preceding trading date as reported on The Nasdaq National Market or, if no closing sale price shall have been made on such relevant date, on the next preceding day on which there was a closing sale price; provided, however, that if no closing sale price shall have been made within the ten business days preceding such relevant date, or if deemed appropriate by the Board for any other reason, the Fair Market Value of such shares of Common Stock shall be as determined by the Board. In no event shall the Fair Market Value of any share of Common Stock be less than its par value. (c) Option Term. Each option shall be granted for a term determined from time to time by the Board, but in no event shall an option be granted for a term of more than five years and each option is subject to earlier termination in the event of the death or the voluntary or involuntary termination of the Optionee as set forth herein. (d) [intentionally omitted] (e) Exercise of Options. Options shall be exercisable within the times or upon the events determined by the Board as set forth in the grant of options; provided, however, that no option shall be exercisable after the expiration of five years from the date the option is granted. Upon exercise no fractional shares of Common Stock shall be issued or transferred and no payments shall be made in lieu of fractional shares. No shares of Common Stock shall be issued or delivered until full payment therefor has been made. No option may be exercised for fewer than the lesser of (i) 500 shares of Common Stock or (ii) all remaining shares of Common Stock subject to the option. (f) Notice of Exercise. Options may be exercised only by delivery to the Company of a written notice and exercise agreement in a form approved by the Board, stating the number of shares of Common Stock being purchased, the restrictions imposed on the shares of Common Stock and such representations and agreements regarding the Optionee's investment intent and access to information as may be required by the Company to comply with applicable securities laws, together with payment in full of the exercise price for the number of shares of Common Stock being purchased. (g) Payment. Payment for the shares of Common Stock may be made (i) in cash, (ii) by surrender of shares of Common Stock having a Fair Market Value equal to the exercise price of the option or (iii) by any combination of the foregoing where approved by the Board in its sole discretion; 3 provided, however, in the event of payment for the shares of Common Stock by method (ii) above, the shares of Common Stock so surrendered, if originally issued to the Optionee upon exercise of an option(s) granted by the Company, shall have been held by the Optionee for more than six months. (h) Purchase for Investment. If the shares of Common Stock subject to an option have not been registered under the Securities Act of 1933, as amended ("Securities Act"), the Board shall have the right to require, as a condition to any exercise of the option, such representations or agreements as counsel for the Company may consider appropriate to avoid violation of such Act, including but not limited to the representation that any and all shares of Common Stock purchased upon exercise of the option will be purchased for investment and not with a view to the distribution or resale thereof and to agree that such shares will not be sold except in accordance with such restrictions or limitations as may be set forth in the Stock Option Agreement or as may be imposed by law. (i) Death or Voluntary or Involuntary Termination. In the event of death of the Optionee or voluntary or involuntary termination of directorship with the Company of the Optionee, such option may, subject to the provisions of this Plan and any restrictions or limitations as are determined by the Board, be exercised as to those optioned shares in respect of which such option has not previously been exercised, but only to the extent that such option could be exercised by the Optionee on the date of such death or voluntary or involuntary termination of directorship with the Company (whichever is the applicable case): i) in the event of the death of the Optionee, then by his or her executor or administrator, or by the person or persons to whom the option is transferred by will or the applicable laws of descent and distribution, within twelve months from the date of death, but in no event subsequent to the expiration date of the option; or ii) in the event of the Optionee's voluntary or involuntary termination of directorship with the Company, then by the Optionee within twelve months from the date of termination, but in no event subsequent to the expiration date of the option. 9. Privileges of Stock Ownership. No Optionee shall have any of the rights of a shareholder with respect to any shares of Common Stock subject to an option until the option has been validly exercised. No adjustment shall be made for dividends or distributions or other rights for which the record date is prior to the date of exercise, except as provided in this Plan. 4 10. Adjustment of Option Shares. In the event that the number of outstanding shares of Common Stock is changed by a stock dividend, stock split, reverse stock split, combination, reclassification or similar change in the capital structure of the Company without consideration, the number of shares of Common Stock available under this Plan and the number of shares of Common Stock subject to outstanding options and the exercise price per share of such options shall be proportionately adjusted, subject to any required action by the Board or shareholders of the Company and compliance with applicable securities laws; provided, however, that no certificate or scrip representing fractional shares shall be issued upon exercise of any option and any resulting fractions of a share of Common Stock shall be ignored. 11. Compliance with Laws. The grant of options and the issuance of shares upon exercise of any options shall be subject to and conditioned upon compliance with all applicable requirements of law, including without limitation compliance with the Securities Act, compliance with all applicable state securities laws and compliance with the requirements of any stock exchange on which the shares may be listed. The Company shall be under no obligation to register the shares with the Securities and Exchange Commission or to effect compliance with the Securities Act or with the registration or qualification requirement of any state securities laws or stock exchange. 12. Restrictions on Shares. At the discretion of the Board, the Company may reserve to itself or its assignee(s) in the Stock Option Agreement (a) a right of first refusal to purchase any shares of Common Stock that an Optionee (or a subsequent transferee) may propose to transfer to a third party and (b) a right to repurchase any or all shares of Common Stock held by an Optionee upon the Optionee's termination of directorship with the Company for any reason within a specified time as determined by the Board at the time of grant at (i) the Optionee's original purchase price, (ii) the Fair Market Value of such shares of Common Stock as determined by the Board in good faith or (iii) a price deter-mined by a provision set forth in the Stock Option Agreement. 13. Change of Control. Notwithstanding any contrary terms in the grant of options hereunder, in the event of a Change of Control (as defined herein), all outstanding options shall accelerate and become immediately fully exercisable. For purposes of this Plan, a "Change In Control" shall mean (i) the sale or other disposition to a person, entity or group (as such term is defined in Rule 13d-5 under the Exchange Act) of 50% or more of the Company's consolidated assets, (ii) the acquisition of 50% or more of the outstanding shares of Common Stock by a person or group (as such term is defined in Rule 13d-5) or (iii) if the majority of the Board consists of persons other than Continuing Directors (as defined herein). The term "Continuing Director" shall mean any member of the Board on the effective date of this Plan and any other member of the Board who shall be recommended or elected to succeed or become a Continuing Director by a majority of the Continuing Directors who are then members of the Board. 5 14. Amendment or Termination of Plan. The Board may at any time terminate or amend this Plan in any respect (including, but not limited to, any form of grant, agreement or instrument to be executed pursuant to this Plan); provided, however, that shareholder approval shall be required to be obtained by the Company if required to comply with the listed company requirements of The Nasdaq National Market or of a national securities exchange on which the shares of Common Stock are traded, or other applicable provisions of state or federal law or self-regulatory agencies; provided, further, that no amendment of this Plan may adversely affect any then outstanding options or any unexercised portions thereof without the written consent of the Optionee. 15. Term of Plan. No option shall be granted pursuant to this Plan on or after December 31, 2001, but options theretofore granted may extend beyond that date and the terms of this Plan shall continue to apply to such options and to any shares of Common Stock acquired upon exercise thereof. 16. Applicable Law. The validity, interpretation and enforcement of this Plan shall be governed in all respects by the laws of the State of Florida and the United States of America. 17. Issuance of Shares. The shares of Common Stock, when issued and paid for pursuant to the options granted hereunder, shall be issued as fully paid and non-assessable shares. 18. Withholding Taxes. Whenever under this Plan shares are to be issued in satisfaction of the exercise of options granted thereunder, the Company shall have the right to require the recipient to remit to the Company an amount sufficient to satisfy federal, state and local withholding tax requirements prior to the delivery of any certificate or certificates for such shares. 19. Transferability of Options. An option may be sold, pledged, assigned, hypothecated, transferred or disposed of as determined by the Board and as set forth in a Stock Option Agreement with an Optionee. 6 EX-5 3 OPINION OF EPSTEIN BECKER & GREEN, P.C. EXHIBIT 5 [EPSTEIN BECKER & GREEN, P.C. LETTERHEAD] June 29, 1999 Board of Directors of Novoste Corporation 3890 Steve Reynolds Boulevard Norcross, Georgia 30093 Re: Stock Option Plan Gentlemen: We have acted as counsel to Novoste Corporation (the "Company") in connection with its filing of a Registration Statement on Form S-8 (the "Registration Statement") covering 100,000 shares (the "Shares") of the Company's authorized and unissued shares of Common Stock, $.01 par value, issuable upon the exercise of options under the Company's Non-Employee Director Stock Option Plan (the "Director Plan"). As such counsel, we have examined originals, or copies certified to our satisfaction, of the corporate records of the Company, agreements and other instruments, certificates of public officials, certificates of officers of the Company and such other documents as we deemed necessary as a basis for the opinion hereinafter set forth. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to original documents of documents submitted to us as certified or photostatic copies. On the basis of the foregoing, we are of the opinion that the Shares have been duly authorized and, when issued, delivered and paid for in accordance with the Director Plan, will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the aforesaid Registration Statement. Very truly yours, EPSTEIN BECKER & GREEN, P.C. By: /s/ Seth I. Truwit ------------------------------------- Seth I. Truwit EX-23.(A) 4 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23(a) CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Post Effective Amendment 1 to Form S-8) pertaining to the Novoste Corporation Non-Employee Director Stock Option Plan of our report dated February 9, 1999, with respect to the financial statements of Novoste Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 1998 filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Atlanta, Georgia June 23, 1999 -----END PRIVACY-ENHANCED MESSAGE-----