EXHIBIT 4.1
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
OF
NOVOSTE CORPORATION
As Amended and Restated as of December 18, 1998
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 200,000 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.
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
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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) [intentionally omitted]
(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 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;
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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.
(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.
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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 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
deter-mined 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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