As filed with the Securities and Exchange Commission on December 4, 2001
Registration No. 333-______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NOVOSTE CORPORATION
(Exact name of registrant as specified in its charter)
Florida 59-2787476
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
3890 Steve Reynolds Boulevard, Norcross, GA 30093
(Address of principal executive offices) (Zip Code)
NOVOSTE CORPORATION 2001 STOCK PLAN, AS AMENDED
(Full title of the plan)
William A. Hawkins
Chief Executive Officer Copy to: Seth I. Truwit, Esq.
Novoste Corporation Dorsey & Whitney LLP
3890 Steve Reynolds Boulevard 250 Park Avenue
Norcross, GA 30093 New York, NY 10177
(770) 717-0904 (212) 415-9200
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed
maximum offering Proposed Amount of
Title of securities Amount to be price maximum aggregate registration
to be registered registered per share(1) offering price(1) fee
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1,250,000
Common Stock, $.01 par value Shares(2) $8.29 $10,362,500 $2,477
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933, as amended,
on (i) 1,166,950 shares underlying outstanding options at a weighted
average exercise price of $8.11 per share and (ii) 83,050 balance of the
shares to be granted under the 2001 Stock Plan at an average aggregate
offering price of $10.78 per share as computed based upon the average of
the high and low sales prices of the Common Stock on the Nasdaq National
Market, as reported in the consolidated reporting system, on November 29,
2001.
(2) Consists of 1,250,000 shares of Common Stock issuable under the 2001 Stock
Plan.
PART I.
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registration Information and Employee Plan Annual Information.*
* Information required by Part 1 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 1
of Form S-8.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents that we have filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference into this
Registration Statement:
. our Annual Report on Form 10-K for the fiscal year ended
December 31, 2000;
. our Current Report on Form 8-K filed with the Commission on April 4,
2001;
. our Current Report on Form 8-K filed with the Commission on
October 3, 2001;
. our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001;
. our Quarterly Report on Form 10-Q for the quarter ended
June 30, 2001;
. our Quarterly Report on Form 10-Q for the quarter ended
September 30, 2001; and
. the description of our common stock contained in any of our
Registration Statements filed under the Securities Exchange Act of
1934, as amended, and any amendment or report filed for the purpose
of updating the description.
All documents filed by us pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment indicating that
all securities offered by this Registration Statement have been sold, or
deregistering all securities remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part of
this Registration Statement from the respective dates of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Section 607.0850 of the Florida 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 By-laws provide for indemnification of Registrant's directors,
officers, agents and employees to the full extent permissible under Section
607.0850 of the Florida Business Corporation Act.
Registrant maintains directors' and officers' liability insurance
coverage with an aggregate policy limit of $10,000,000 of each policy year.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.17(a) Amended and Restated Rights Agreement, dated as of July 29,
1999, between Novoste Corporation and American Stock Transfer
& Trust Company, which includes as Exhibit B thereto the Form
of Right Certificate (incorporated by reference to the same
numbered exhibit to the Registrant's report on Form 8-A/A
filed on August 3, 1999).
4.17(b) Amended and Restated Summary of Rights to Purchase Preferred
Shares of Novoste Corporation (incorporated by reference to
the same numbered exhibit to the Registrant's report on Form
8-A/A filed on August 3, 1999).
5.1 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Dorsey & Whitney LLP (contained in Exhibit 5.1 to
this Registration Statement).
24.1 Power of Attorney (included in the signature page hereof).
Item 9. Undertakings.
(a) 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:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Securities and Exchange Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
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.
(b) 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 that is incorporated by reference in the
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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities 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 other
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
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
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 Atlanta, State of Georgia, on December 3, 2001.
NOVOSTE CORPORATION
By /s/ William A. Hawkins
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William A. Hawkins
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints William A. Hawkins and Edwin B.
Cordell, Jr., and each of them, his or her true and lawful attorneys-in-fact and
agents, each acting alone, with full powers of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement on
Form S-8, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or their substitute or substitutes,
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 and the dates indicated.
Signature Title Date
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/s/ William A. Hawkins Chief Executive Officer, President and Director December 3, 2001
- -------------------------------------- (Principal executive officer)
William A. Hawkins
/s/ Edwin B. Cordell, Jr. Vice President-Finance and Chief Financial Officer December 3, 2001
- -------------------------------------- (Principal financial and accounting officer)
Edwin B. Cordell, Jr.
Chairman December 3, 2001
/s/ Thomas D. Weldon Director December 3, 2001
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Thomas D. Weldon
/s/ Donald C. Harrison, MD Director December 3, 2001
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Donald C. Harrison, MD
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Signature Title Date
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/s/ Stephen Holmes Director December 3, 2001
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J. Stephen Holmes
/s/ Charles E. Larsen Director December 3, 2001
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Charles E. Larsen
/s/ Stephen I. Shapiro Director December 3, 2001
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Stephen I. Shapiro
/s/ Norman R. Weldon Director December 3, 2001
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Norman R. Weldon
/s/ William E. Whitmer Director December 3, 2001
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William E. Whitmer
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EXHIBIT INDEX
4.17(a) Amended and Restated Rights Agreement, dated as of July 29, 1999,
between Novoste Corporation and American Stock Transfer & Trust
Company, which includes as Exhibit B thereto the Form of Right
Certificate (incorporated by reference to the same numbered exhibit to
the Registrant's report on Form 8-A/A filed on August 3, 1999).
4.17(b) Amended and Restated Summary of Rights to Purchase Preferred Shares
of Novoste Corporation (incorporated by reference to the same numbered
exhibit to the Registrant's report on Form 8-A/A filed on August 3,
1999).
5.1 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Dorsey & Whitney LLP (contained in Exhibit 5.1 to this
Registration Statement).
24.1 Power of Attorney (included in the signature page hereof).
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