Appendix 2
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.
(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, notwithstanding the
fact that written acceptance by the Optionee of such grant may take place
thereafter.
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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 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
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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
limitations as may be set forth in the Stock Option Agreement or as
may be imposed by law.
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(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 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
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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 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.
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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.
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