[EPSTEIN BECKER & GREEN, P.C. LETTERHEAD]
March 27, 1998
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Avenue
Washington, D.C. 20549
Re: Novoste Corporation
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
On behalf of Novoste Corporation (the "Company"), we are transmitting
herewith electronically on the Electronic Data Gathering, Analysis, and
Retrieval System of the Securities and Exchange Commission (the "Commission"),
one (1) copy of the Company's Form S-8 Registration Statement to register under
the Securities Act of 1933, as amended, 100,000 shares of the Company's Common
Stock, $.01 par value, issuable upon exercise of options granted or to be
granted under the Company's Non-Employee Director Stock Option Plan.
The filing fee of $538.70 is being paid in accordance with Rule 3a of the
Commission's Informal and Other Procedures.
Very truly yours,
/s/ Mark A. Polemeni
--------------------
Mark A. Polemeni
Enclosure
cc: The National Stock Market (via Fedex w/encl.)
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As filed with the Securities and Exchange Commission on March 27, 1998.
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
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 (I.R.S. Employer
of incorporation or organization) Identification No.)
4350-C INTERNATIONAL BOULEVARD 30093
NORCROSS, GEORGIA (Zip Code)
(Address of principal executive offices)
NOVOSTE CORPORATION NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
THOMAS D. WELDON
NOVOSTE CORPORATION
4350-C INTERNATIONAL BOULEVARD
NORCROSS, GEORGIA 30093
(Name and address of agent for service)
(770) 717-0904
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 100,000 shares(2) $18.261 $1,826,100.00 $538.70
$.01 par value
===================================================================================================================================
</TABLE>
(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)
47,500 shares underlying outstanding options under the Non-Employee Director
Stock Option Plan at a weighted average exercise price of $8.67 per share and
(ii) the 52,500 balance of shares reserved for issuance under the Non-Employee
Director Stock Option Plan at an average aggregate offering price of $26.938 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 March 25, 1998.
(2)Consists of 100,000 shares of Common Stock issuable upon exercise of
options granted or to be granted under the Stock Option Plan.
AEC071FE.W51
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================================================================================
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 the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following document which has heretofore been filed by Novoste
Corporation (the "Registrant") with the Securities and Exchange Commission (the
"Commission") is hereby incorporated by reference in this Registration
Statement:
1. The Annual Report on Form 10-K of the Registrant for the fiscal year
ended December 31, 1997.
2. Amendment to the Annual Report on Form 10-K/A of the Registrant for the
fiscal year ended December 31, 1997.
All reports and proxy statements filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
of the shares to which this Registration Statement relates have been sold or
which deregisters all of the shares then remaining unsold shall likewise be
deemed incorporated herein and made a constituent part hereof by reference from
the respective dates of the filings.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
2
AEC071FE.W51
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida 1989 Business Corporation Act grants
corporations the power to indemnify their directors, officers, employees and
agents in accordance with the provisions thereof. Article VI of the Registrant's
Amended and Restated Articles of Incorporation and Article VIII of the
Registrant's Amended and Restated By-Laws provide for indemnification of the
Registrant's directors and officers (as well as the Registrant's employees and
agents to whom the Registrant has agreed to grant indemnification) to the
fullest extent permissible under applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following are filed as exhibits to this Registration Statement:
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
this Registration Statement).
3
AEC071FE.W51
<PAGE>
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in this
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Act"), may be permitted to directors, officers or
controlling persons of the Registrant pursuant to the provisions of Registrant's
Amended and Restated Certificate of Incorporation or Amended and Restated
ByLaws, as amended, or the provisions of the Florida 1989 Business Corporation
Act or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
4
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<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933,
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 25th day of
March, 1998.
NOVOSTE CORPORATION
By: /S/ THOMAS D. WELDON
--------------------
Thomas D. Weldon
President and Chief Executive Officer
5
AEC071FE.W51
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints THOMAS D. WELDON and NORMAN R. WELDON, 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, this
Registration Statement has been signed by the following persons in the
capacities set forth and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/S/ THOMAS D. WELDON President, Chief Executive March 25, 1998
- --------------------------------------- Officer and Director
Thomas D. Weldon
/S/ DAVID N. GILL Chief Financial Officer (Principal March 26, 1998
- --------------------------------------- Financial and Accounting Officer)
David N. Gill
/S/ NORMAN R. WELDON Director March 25, 1998
- ---------------------------------------
Norman R. Weldon, Ph.D.
/S/ CHARLES E. LARSEN Director March 26, 1998
- ---------------------------------------
Charles E. Larsen
/S/ J. STEPHEN HOLMES Director March 25, 1998
- ---------------------------------------
J. Stephen Holmes
/S/ RICHARD M. JOHNSTON Director March 25, 1998
- ---------------------------------------
Richard M. Johnston
/S/ PIETER J. SCHILLER Director March 25, 1998
- ---------------------------------------
Pieter J. Schiller
/S/ STEPHEN I. SHAPIRO Director March 25, 1998
- ---------------------------------------
Stephen I. Shapiro
/S/ WILLIAM E. WHITMER Director March 26, 1998
- ---------------------------------------
William E. Whitmer
</TABLE>
6
AEC071FE.W51
<PAGE>
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 this
Registration Statement).
7
AEC071FE.W51
<PAGE>
EXHIBIT 4.1
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
OF
NOVOSTE CORPORATION
Adopted August 20, 1996 and as Amended as of February 28, 1997
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.
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(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 100,000
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,
AEC04F6E.W51
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<PAGE>
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 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) LIMITATION ON OPTIONS. Notwithstanding anything herein,
the maximum aggregate number of shares of Common Stock
with respect to which options may be granted to any
person eligible therefor under this Plan within any one
calendar year is 15,000 shares.
(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
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<PAGE>
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; 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
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<PAGE>
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.
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
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<PAGE>
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
determined 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
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<PAGE>
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.
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.
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<PAGE>
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.
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<PAGE>
EXHIBIT 5
[EPSTEIN BECKER & GREEN, P.C. LETTERHEAD]
March 26, 1998
Board of Directors of
Novoste Corporation
4350-C International Blvd.
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 and 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
AEC071FE.W51
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Novoste Corporation Non-Employee Director
Stock Option Plan of our report dated January 30, 1998, with respect to the
financial statements of Novoste Corporation included in its Annual Report (Form
10-K) for the year ended December 31, 1997 filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
March 24, 1998
