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. 2 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 Identification No.)
incorporation or organization)
3890 Steve Reynolds Blvd. 30093
Norcross, Georgia (Zip Code)
(Address of principal executive offices)
Novoste Corporation Amended and Restated 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
<TABLE>
<CAPTION>
===========================================================================================
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,
$.01 par value 1,400,000 shares(2) $20.11 $28,154,000 $7,826.81
===========================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, on the
basis of (i) 990,625 shares underlying outstanding options under the Stock
Option Plan at a weighted average exercise price of $19.74 per share and (ii)
the 409,375 balance of shares reserved for issuance under the 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 sales prices of the Common Stock reported in the
consolidated reporting system on The Nasdaq Stock Market as of June 25, 1999.
(2) Consists of 1,400,000 shares of Common Stock issuable upon exercise of
options granted or to be granted under the Stock Option Plan.
<PAGE>
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. 333-12717) and the Registrant's Post-Effective Amendment No. 1 to Form
S-8 (File No. 333-48847) 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.
<PAGE>
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
<PAGE>
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 and June 24, 1999
- - -------------------------- Chief Financial Officer
David N. Gill (Principal Financial
and Accounting Officer)
/s/ Thomas D. Weldon Chairman of the Board June 24, 1999
- - -------------------------- and 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, M.D.
/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
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
- - ------- -----------
4.1 Copy of the Registrant's Amended and Restated 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).
EXHIBIT 4.1
NOVOSTE CORPORATION
AMENDED AND RESTATED STOCK OPTION PLAN
As Amended and Restated as of December 18, 1998
1. PURPOSE. This Stock Option Plan ("Plan") is established to provide
incentives for selected persons to promote the financial success and progress of
Novoste Corporation ("Company") by granting such persons options to purchase
shares of common stock of the Company.
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; STOCK OPTION AND COMPENSATION COMMITTEE. This Plan
shall be effective on the date that it is adopted by the Stock Option and
Compensation Committee ("Committee") of the Board of Directors of the Company.
The Committee shall at all times be composed only of two or more Non-Employee
Directors. The Committee 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 Committee.
(b) The Committee 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 Grants (as defined below) 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 Committee on all matters relating to
this Plan or any Grant shall be final, binding and conclusive.
(d) No member of the Committee shall be liable for any action or
<PAGE>
determination made in good faith with respect to this Plan or any award
thereunder.
5. TYPES OF OPTIONS AND SHARES. Options granted under this Plan
("Options") may be either (a) incentive stock options ("ISOs") within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended
("Code"), or (b) nonqualified stock options ("NQSOs"), as designated at the time
of grant. The shares of stock that may be purchased upon exercise of Options
granted under this Plan ("Shares") are shares of the common stock of the
Company.
6. NUMBER OF SHARES. The maximum number of Shares that may be issued
pursuant to Options granted under this Plan is 4,100,000 Shares. Such number of
Shares shall be subject to adjustment as provided in this Plan. If any Option is
terminated 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 as shall be required to satisfy the requirements of outstanding
Options under this Plan.
7. ELIGIBILITY. Options may be granted only to such employees, officers,
consultants and independent contractors of the Company or any Parent, Subsidiary
or Affiliate of the Company (as defined below) as the Committee shall select
from time to time in its sole discretion ("Optionees"), provided that only
employees of the Company or a Parent or Subsidiary of the Company shall be
eligible to receive ISOs. An Optionee may be granted more than one Option under
this Plan. As used in this Plan, the following terms shall have the following
meanings:
(a) "Parent" means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company, if at the time of the
granting of the Option, each of such corporations other than the Company owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
(b) "Subsidiary" means any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company if, at the time of
granting of the Option, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
(c) "Affiliate" means any corporation that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with another corporation, where "control" (including the terms
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to cause the direction of the management and policies of
the corporation, whether through the ownership of voting securities, by contract
or otherwise.
2
<PAGE>
8. TERMS AND CONDITIONS OF OPTIONS. The Committee shall determine whether
each Option is to be an ISO or a NQSO, the number of Shares for which the Option
shall be granted, the exercise price of the Option, the periods during which the
Option may be exercised, and all other terms and conditions of the Option,
subject to the following terms and conditions:
(a) Form of Option Grant. Each Option granted under this Plan shall
be evidenced by a written Stock Option Grant ("Grant") in such form (which need
not be the same for each Optionee) as the Committee shall from time to time
approve, which Grant shall comply with and be subject to the terms and
conditions of this Plan.
(b) Exercise Price. The exercise price of an Option shall be not
less than the Fair Market Value (as defined herein) in the case of an ISO, or
85% of the Fair Market Value in the case of a NQSO, of the Shares at the time
that the Option is granted. The term "Fair Market Value" means the closing sale
price for a Share 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 Committee for any other reason, the Fair Market Value of such
Shares shall be as determined by the Committee. In no event shall the Fair
Market Value of any Share be less than its par value.
(c) Exercise Period. Options shall be exercisable within the times
or upon the events determined by the Committee as set forth in the Grant;
provided, however, that no Option shall be exercisable after the expiration of
ten years from the date the Option is granted and is subject to earlier
termination in the event of the death or the voluntary or involuntary
termination of the Optionee as set forth herein; provided, further, that no ISO
granted to a Ten Percent Shareholder (as defined by Section 422 of the Code)
shall be exercisable after the expiration of five years from the date the ISO is
granted.
(d) Limitations on ISOs. The aggregate Fair Market Value (determined
as of the time an Option is granted) of stock with respect to which ISOs are
exercisable for the first time by an Optionee during any calendar year (under
this Plan or under any other incentive stock option plan of the Company or any
Parent or Subsidiary of the Company) shall not exceed $100,000.
(e) Limitations on ISOs and NQSOs. Notwithstanding anything herein,
the maximum aggregate number of Shares with respect to which Options, whether
ISOs or NQSOs, may be granted to any person or entity eligible therefor under
this Plan within any one calendar year is 500,000 Shares.
(f) Date of Grant. The date of grant of an Option shall be the date
on which the Committee makes the determination to grant such Option unless
otherwise specified by the Committee. The Grant representing the Option shall be
delivered to the Optionee within a
3
<PAGE>
reasonable time after the granting of the Option.
9. EXERCISE OF OPTIONS.
(a) Notice. Options may be exercised only by delivery to the Company
of a written notice and exercise agreement in a form approved by the Committee,
stating the number of Shares being purchased, the restrictions imposed on the
Shares 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 being purchased.
(b) Payment. Payment for the Shares may be made (i) in cash, (ii) by
surrender of Shares 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
Committee in its sole discretion; provided, however, in the event of payment for
the Shares by method (ii) above, the Shares 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.
(c) Withholding Taxes. Prior to issuance of the Shares upon exercise
of an Option, the Optionee shall pay or make adequate provision for any federal,
state or local withholding obligations of the Company, if applicable.
(d) Limitations on Exercise. Notwithstanding the exercise periods
set forth in the Grant, exercise of an Option shall always be subject to the
following limitations:
(i) An Option shall not be exercisable unless such exercise is
in compliance with the Securities Act of 1933, as amended ("Securities Act"),
and all applicable state securities laws, as they are in effect on the date of
exercise.
(ii) The Committee may specify a reasonable minimum number of
Shares that may be purchased on any exercise of an Option, provided that such
minimum number will not prevent the Optionee from exercising the Option for the
full number of Shares as to which the Option is then exercisable.
10. DEATH OR VOLUNTARY OR INVOLUNTARY TERMINATION. Should an Optionee
become disabled, retire or cease to be employed by or associated with the
Company for any reason (other than death), all Options held by the Optionee
shall terminate and lapse: (i) in the case of an ISO, on the date 45 days
following the last day that the Optionee is employed by or associated with the
Company and (ii) in the case of a NQSO, on the date six months following the
last day that the Optionee is employed by or associated with the Company. Should
an Optionee die, regardless of whether the Optionee holds ISOs or NQSOs, all
Options held by the Optionee shall terminate and lapse on the date twelve months
following the Optionee's death. Following the termination of an Optionee's
employment by or association with the Company for any reason (including death),
an Option may be exercised only for the number of Shares for
4
<PAGE>
which it could have been exercised on such termination date (and in no event
following the expiration of such Option's term).
11. PRIVILEGES OF STOCK OWNERSHIP. No Optionee shall have any of the
rights of a shareholder with respect to any Shares 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.
12. ADJUSTMENT OF OPTION SHARES. In the event that the number of
outstanding Shares 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 available under this
Plan and the number of Shares subject to outstanding Options and the exercise
price per share of such Options shall be proportionately adjusted, subject to
any required action by the Committee, Board of Directors 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 shall be ignored.
13. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any Option granted
under this Plan shall confer on any Optionee any right to continue in the employ
of the Company or any Parent, Subsidiary or Affiliate of the Company or limit in
any way the right of the Company or any Parent, Subsidiary or Affiliate of the
Company to terminate the Optionee's employment at any time, with or without
cause.
14. 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.
15. RESTRICTIONS ON SHARES. At the discretion of the Committee, the
Company may reserve to itself or its assignee(s) in the Grant (a) a right of
first refusal to purchase any Shares 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 held by an Optionee upon the Optionee's termination
of employment or service with the Company or a Parent, Subsidiary or Affiliate
of the Company for any reason within a specified time as determined by the
Committee at the time of grant at (i) the Optionee's original purchase price,
(ii) the Fair Market Value of such Shares as determined by the Committee in good
faith or (iii) a price determined by a provision set forth in the Grant.
5
<PAGE>
16. CHANGE OF CONTROL. In the event of a Change of Control (as defined
herein), all outstanding Options shall accelerate and become immediately fully
exercisable; provided, however, that with respect to any Grant which includes
performance milestones relating to the exercisability of the Options included
therein, the Committee shall have discretion to determine in such Grant the
extent, if at all, that such Options granted therein shall accelerate and become
exercisable upon a Change of Control. For purposes of this Plan, a "Change of
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 by a person or group (as such term is defined in Rule
13d-5) or (iii) if the majority of the Company's Board of Directors consists of
persons other than Continuing Directors (as defined herein). The term
"Continuing Director" shall mean any member of the Company's Board of Directors
on the effective date of this Plan and any other member of the Board of
Directors 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 of Directors. The aggregate Fair Market Value (determined at the time an
Option is granted) of ISOs which first become exercisable in the year of such
dissolution, liquidation, merger, sale of stock or sale of assets cannot exceed
$100,000. Any remaining accelerated Options shall be NQSOs.
17. AMENDMENT OR TERMINATION OF PLAN. The Committee 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 provisions of Section 162(m) of the
Code, or the listed company requirements of The Nasdaq National Market or of a
national securities exchange on which the Shares 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.
18. TERM OF PLAN. No Option shall be granted pursuant to this Plan on or
after May 26, 2002, 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 acquired upon exercise thereof.
19. 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.
20. ISSUANCE OF SHARES. The Shares, when issued and paid for pursuant to
the Options granted hereunder, shall be issued as fully paid and non-assessable
Shares.
21. NON-TRANSFERABILITY OF ISOs. No ISO granted pursuant to the Plan shall
be sold, pledged, assigned, hypothecated, transferred or disposed of in any
manner otherwise than by will or by the laws of descent or distribution and an
ISO may be exercised during the lifetime of the Optionee only by such Optionee.
6
<PAGE>
22. TRANSFERABILITY OF NQSOs. A NQSO may be sold, pledged, assigned,
hypothecated, transferred or disposed of as determined by the Committee and as
set forth in a Grant with an Optionee.
7
EXHIBIT 5
[EPSTEIN BECKER & GREEN, P.C. LETTERHEAD]
June 29, 1999
Board of Directors of
Novoste Corporation
3890 Steve Reynolds 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 1,400,000 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 Stock Option Plan (the
"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 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
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Post
Effective Amendment 2 to Form S-8) pertaining to the Novoste Corporation Amended
and Restated 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
