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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1997
REGISTRATION NO. 333-38573
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NOVOSTE CORPORATION
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
FLORIDA 5047 59-2787476
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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4350-C INTERNATIONAL BLVD.
NORCROSS, GEORGIA 30093
(770) 717-0904
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
THOMAS D. WELDON
NOVOSTE CORPORATION
4350-C INTERNATIONAL BLVD.
NORCROSS, GEORGIA 30093
(770) 717-0904
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
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<C> <C>
SETH I. TRUWIT, ESQ. LAWRENCE S. WITTENBERG, ESQ.
EPSTEIN BECKER & GREEN, P.C. TESTA, HURWITZ & THIBEAULT, LLP
250 PARK AVENUE HIGH STREET TOWER
NEW YORK, NEW YORK 10177 125 HIGH STREET
(212) 351-4500 BOSTON, MASSACHUSETTS 02110
(617) 248-7000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT BEING OFFERING PRICE AGGREGATE AMOUNT OF
BEING REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE REGISTRATION FEE
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Common Stock, $.01 par value......... 2,300,000 $18.75 $43,125,000 $14,871*
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* Previously paid.
(1) Includes 300,000 shares that the Underwriters have the option to purchase to
cover over-allotments, if any.
(2) Estimated solely for purposes of calculating the registration fee, based
upon the average of the high and low sales prices of the Common Stock on the
Nasdaq National Market on October 21, 1997, pursuant to Rule 457(c) under
the Securities Act.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
(a) Exhibits:
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EXHIBIT
NUMBER DESCRIPTION
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*1.1 -- Form of Purchase Agreement.
*1.2 -- Power of Attorney and Custody Agreement.
*4.1 -- Form of Specimen Common Stock Certificate of Registrant.(1)
*4.2 -- Registration Rights Agreement, dated July 28, 1995, by and
among Registrant, Norman R. Weldon, Thomas D. Weldon,
Charles E. Larsen, the Hillman Investors (as defined
therein), Noro-Moseley Partners-III, L.P. and Advanced
Technology Ventures IV, L.P.(1)
*4.3 -- Registration Rights Agreement, dated April 26, 1995, between
Registrant and ABS Employees' Venture Fund Limited
Partnership.(1)
*4.4 -- Registration Rights Agreement, dated September 20, 1995,
between Registrant and Karen C. Vinjamuri.(1)
*4.5 -- Stock Purchase Warrant, dated September 24, 1993, between
Registrant and The Kriegsman Group.(1)
*4.6 -- Stock Purchase Warrant, dated March 24, 1994, between
Registrant and The Kriegsman Group.(1)
*4.7 -- Stock Purchase Warrant, dated December 1, 1995, between
Registrant and The Kriegsman Group.(1)
*4.8 -- Stock Purchase Warrant, dated December 1, 1995, between
Registrant and The Kriegsman Group.(1)
*4.9 -- Consulting Agreement, dated July 30, 1992, between
Registrant and Spencer B. King III, M.D.(1)
*4.10 -- Consulting Agreement, dated February 1, 1996, between
Registrant and Spencer B. King III, M.D.(1)
*4.13 -- Consulting Agreement, dated July 30, 1992, between
Registrant and John B. Martin.(1)
*4.14 -- Consulting Agreement, dated November 4, 1992, between
Registrant and Raphael Meloul.(1)
*4.15 -- Consulting Agreement, dated June 30, 1992, between
Registrant and David O. Williams, M.D.(1)
*4.17(a) -- Form of Rights Agreement, dated as of October 25, 1996,
between Registrant and American Stock Transfer & Trust
Company, which includes as Exhibit B thereto the Form of
Right Certificate.(2)
*4.17(b) -- Summary of Rights to Purchase Preferred Shares of
Registrant.(2)
5 -- Opinion by Epstein Becker & Green, P.C., as to legality.
*+10.13 -- Memorandum of Understanding between Registrant and Bebig
Isotopentechnik und Umweltdiagnostik GmbH regarding
purchases and investment grant dated April 23, 1997.
*23.1 -- Consent of Ernst & Young LLP.
23.2 -- Consent of Epstein Becker & Green, P.C. (included in Exhibit
5).
*24 -- Power of Attorney.
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* Previously filed.
+ Portions have been omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
(1) Filed as same numbered Exhibit to the Registrant's Registration Statement
on Form S-1 (File No. 333-4988).
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(2) Filed as same numbered Exhibit to the Registrant's Registration Statement
on Form 8-A filed November 5, 1996.
(3) Filed as same numbered Exhibit to Registrant's Form 10-K for the year ended
December 31, 1996.
(b) Financial Statement Schedules:
Schedules have been omitted for the reason that they are not required or
are not applicable or because the required information is included in the
financial statements or the notes thereto.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on the 12th day of
November, 1997.
Novoste Corporation
By: * DAVID N. GILL
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David N. Gill
Vice President, Finance
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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Chairman of the Board and
- --------------------------------------------------- Director
Norman R. Weldon, Ph.D.
* THOMAS D. WELDON President, Chief Executive November 12, 1997
- --------------------------------------------------- Officer and Director
Thomas D. Weldon (Principal Executive
Officer)
* DAVID N. GILL Vice President, Finance November 12, 1997
- --------------------------------------------------- (Principal Financial and
David N. Gill Accounting Officer)
* CHARLES E. LARSEN Director November 12, 1997
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Charles E. Larsen
* J. STEPHEN HOLMES Director November 12, 1997
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J. Stephen Holmes
* RICHARD M. JOHNSTON Director November 12, 1997
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Richard M. Johnston
Director
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Pieter J. Schiller
* JACK R. KELLY, JR. Director November 12, 1997
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Jack R. Kelly, Jr.
* WILLIAM E. WHITMER Director November 12, 1997
- ---------------------------------------------------
William E. Whitmer
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SIGNATURE TITLE DATE
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* STEPHEN I. SHAPIRO Director November 12, 1997
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Stephen I. Shapiro
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*By: /s/ DAVID N. GILL
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David N. Gill
Attorney-in-Fact
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EXHIBIT 5
[LETTERHEAD OF EPSTEIN BECKER & GREEN, P.C.]
351-4709
November 12, 1997
Novoste Corporation
4350-C International Blvd.
Norcross, Georgia 30093
Ladies and Gentlemen:
We have acted as counsel to Novoste Corporation (the "Company") in
connection with its filing of a registration statement on Form S-3 (such
registration statement, as amended at the time of its effectiveness,
hereinafter the "Registration Statement") covering shares of the Company's
authorized and unissued shares of Common Stock, $.01 par value, including
shares subject to an over-allotment option (collectively, the "Company
Shares"), and shares of the Company's outstanding Common Stock being sold by
the Selling Shareholders named therein, including shares subject to an
over-allotment option (collectively, the "Selling Shareholder Shares") (the
Company Shares and the Selling Shareholder Shares, together with all shares of
the Company's Common Stock covered by any related registration statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, being
collectively referred to as the "Shares").
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 and such other documents as we
deemed necessary as a basis for the opinion hereinafter set forth.
On the basis of the foregoing, we are of the opinion that the Company
Shares have been validly authorized and will, when sold as contemplated by the
Registration Statement, be legally issued, fully paid and nonassessable and
that the Selling Shareholder Shares are validly authorized, legally issued,
fully paid and nonassessable.
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Novoste Corporation
November 12, 1997
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference made to us under the caption "Legal
Matters" in the prospectus constituting part of such Registration Statement. We
hereby further consent to the incorporation by reference of this opinion in any
related registration statement filed by the Company pursuant to Rule 462(b)
under the Securities Act of 1933, as amended.
Very truly yours,
EPSTEIN BECKER & GREEN, P.C.
By: /s/ Seth I. Truwit
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Seth I. Truwit, Esq.
SIT:wpc
