sec document
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 3)1
NOVOSTE CORPORATION
-------------------
(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE
-----------------------------
(Title of Class of Securities)
67010C100
---------
(CUSIP Number)
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
--------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 10, 2004
-----------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box /_/.
Note. Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7 for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 13 Pages)
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1 The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 67010C100 13D Page 2 of 13 Pages
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=============== ================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
STEEL PARTNERS II, L.P.
--------------- ----------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* / / (a)
/ / (b)
--------------- ----------------------------------------------------------------
3 SEC USE ONLY
--------------- ----------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
--------------- ----------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e)
--------------- ----------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
--------------- --------------------- ------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY
EACH 2,433,207
REPORTING
PERSON WITH
--------------------- ------------------------------------------
8 SHARED VOTING POWER
- 0 -
--------------------- ------------------------------------------
9 SOLE DISPOSITIVE POWER
2,433,207
--------------------- ------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------- ----------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,433,207
--------------- ----------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
--------------- ----------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9%
--------------- ----------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
=============== ================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 67010C100 13D Page 3 of 13 Pages
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=============== ================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
STEEL PARTNERS, L.L.C.
--------------- ----------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* / / (a)
/ / (b)
--------------- ----------------------------------------------------------------
3 SEC USE ONLY
--------------- ----------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------- ----------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e)
--------------- ----------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
--------------- --------------------- ------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY
EACH 2,433,207
REPORTING
PERSON WITH
--------------------- ------------------------------------------
8 SHARED VOTING POWER
- 0 -
--------------------- ------------------------------------------
9 SOLE DISPOSITIVE POWER
2,433,207
--------------------- ------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------- ----------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,433,207
--------------- ----------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
--------------- ----------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9%
--------------- ----------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
=============== ================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 67010C100 13D Page 4 of 13 Pages
-------------------------- ----------------------
=============== ================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WARREN G. LICHTENSTEIN
--------------- ----------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* / / (a)
/ / (b)
--------------- ----------------------------------------------------------------
3 SEC USE ONLY
--------------- ----------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------- ----------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e)
--------------- ----------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
--------------- --------------------- ------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY
EACH 2,433,207
REPORTING
PERSON WITH
--------------------- ------------------------------------------
8 SHARED VOTING POWER
- 0 -
--------------------- ------------------------------------------
9 SOLE DISPOSITIVE POWER
2,433,207
--------------------- ------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
--------------- ----------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,433,207
--------------- ----------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
--------------- ----------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.9%
--------------- ----------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
=============== ================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 67010C100 13D Page 5 of 13 Pages
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The following constitutes Amendment No. 3 ("Amendment No. 3") to the
Schedule 13D filed by the undersigned. This Amendment No. 3 amends the Schedule
13D as specifically set forth.
Item 4 is hereby amended to add the following:
On November 10, 2004, the Reporting Persons entered into a Confidentiality
and Standstill Agreement with the Issuer (the "Agreement"). The Agreement
provides that, among other things, the Chief Executive Officer of the Issuer is
authorized to discuss certain non-public, confidential matters with the
Reporting Persons to enable the Reporting Persons to advise the management and
Board of Directors as to the appropriate strategic direction that the Issuer may
take. The Reporting Persons also agreed not to use such Confidential Information
(as defined in the Agreement) to divert or attempt to divert any business or
customer of the Issuer and agree not to employ or attempt to employ an employee
of the Issuer. In exchange for access to such Confidential Information, the
Reporting Persons have agreed to refrain from, without express written consent
of the Issuer, acquiring additional shares or disposing currently held shares
for a period of 42 calendar days that would change their beneficial ownership of
securities of the Issuer as reported in this Amendment No. 3. The Agreement is
filed as Exhibit No. 1 to this Amendment No. 3 and is incorporated herein by
reference.
Item 7 is hereby amended to add the following exhibit:
1. Confidentiality and Standstill Agreement by and among
Novoste Corporation and Steel Partners II, L.P. dated as of
November 10, 2004
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CUSIP No. 67010C100 13D Page 6 of 13 Pages
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SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief, each
of the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: November 12, 2004 STEEL PARTNERS II, L.P.
By: Steel Partners, L.L.C.
General Partner
By: /s/ Warren G. Lichtenstein
-------------------------------------
Warren G. Lichtenstein
Managing Member
STEEL PARTNERS, L.L.C.
By: /s/ Warren G. Lichtenstein
-------------------------------------
Warren G. Lichtenstein
Managing Member
/s/ Warren G. Lichtenstein
----------------------------------------
WARREN G. LICHTENSTEIN
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CUSIP No. 67010C100 13D Page 7 of 13 Pages
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EXHIBIT INDEX
Exhibit Page
----
1. Confidentiality and Standstill Agreement by and among Novoste 8
Corporation and Steel Partners II, L.P. dated as of November 10,
2004
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CUSIP No. 67010C100 13D Page 8 of 13 Pages
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CONFIDENTIALITY AND STANDSTILL AGREEMENT
This Confidentiality and Standstill Agreement (this "Agreement") is entered
into as of November 10, 2004 by and among Novoste Corporation ("Novoste" or the
"Company") and Steel Partners II, L.P. (the "Shareholder").
WHEREAS, the Board of Directors of Novoste has authorized Alfred J. Novak,
Chief Executive Officer of Novoste, to discuss matters of mutual interest
regarding Novoste with the Shareholder;
WHEREAS, the matters to be discussed by Mr. Novak and the Shareholder
involve confidential, non-public information;
NOW THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. CONFIDENTIAL INFORMATION.
For purposes of this Agreement, "Confidential Information" will be
deemed to include:
(a) any information (including any technology, know-how, patent
application, test result, research study, business plan, budget, forecast or
projection and any information regarding proposed business combinations
involving the Company, liquidation or dissolution of the Company, asset sales by
the Company or similar strategic transactions) relating directly or indirectly
to the business of the Company, any predecessor entity or any subsidiary or
other affiliate of the Company (whether prepared by the Company or by any other
Person and whether or not in written form) that is, has been or will be made
available to you by or on behalf of the Company, however, "Confidential
Information" shall not include any information:
(i) which is generally known to the public other than as a result
of disclosure by you in breach of this Agreement,
(ii) which was available to you on a non-confidential basis prior
to this Agreement,
(iii) which is received by you from a third party who is not
prohibited from disclosing same by a contractual, fiduciary or other legal
obligation to you,
(iv) which is independently developed by or for you without
violating its obligations hereunder, or
(v) which is disclosed pursuant to an order of a court of
competent jurisdiction;
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CUSIP No. 67010C100 13D Page 9 of 13 Pages
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(b) any memorandum, analysis, compilation, summary,
interpretation, study, report or other document, record or material that is, has
been or will be prepared by or for you and that contains, reflects, interprets
or is based directly or indirectly upon any information of the type referred to
in clause "(a)" of this sentence; and
(c) the existence and terms of this Agreement, and the fact that
information of the type referred to in clause "(a)" of this sentence has been
made available to you.
2. LIMITATIONS ON USE AND DISCLOSURE OF CONFIDENTIAL INFORMATION.
(a) You agree that you will not use the Confidential Information for
any purpose other than to ass n the rnent and Board of Directors of the Company,
as to your views on the appropriate strategic, direction of the, Company. You
agree not to id sclose or allow disclosure to others of any Confidential
Information.
(b) You agree that you will not use the Confidential Information in
any way directly or indirectly detrimental to the business of the Company: In
particular, you agree you and your affiliates will not, as a result of knowledge
or information obtained from the Confidential Information: (i) divert or attempt
to divert any business or customer of the Company or any of its affiliates; nt
(ii) employ or attempt to employ or divert an employee of the Company or any of
its affiliates, provided, however, that if any employee is hired by one of your
affiliates pursuant to a newspaper advertisement or general solicitation, it
shall not be deemed a breach of this Section 2(b).
(c) In the event that you are requested or required (by deposition,
interrogatories, requests for information or documents in legal proceedings,
subpoenas, civil investigative demand or similar process), in connection with
any proceeding, to disclose any Confidential Information, you will give the
Company prompt written notice of such request or requirement so that the Company
may seek an appropriate protective order or other remedy and/or waive compliance
with the provisions of this Agreement, and you will cooperate with the Company
to obtain such protective order. In the event that such protective order or
other remedy is not obtained or the Company waives compliance with the relevant
provisions of this Agreement, you will furnish only that portion of the
Confidential Information which, in the written opinion of your counsel, is
legally required to be disclosed. It is further agreed that, if in the absence
of a protective order you are nonetheless legally compelled to disclose such
information, you may make such disclosure provided that you give the Company
notice of the information to be disclosed as far in advance of its disclosure as
is practicable and, upon the Company's request, use your best efforts to obtain
assurances that confidential treatment will be accorded to such information.
3. STANDSTILL AGREEMENT.
You hereby acknowledge that you are aware that the securities laws of
the United States prohibit any Person who has material, non-public information
concerning the Company or a possible transaction involving the Company from
purchasing or selling securities in reliance
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CUSIP No. 67010C100 13D Page 10 of 13 Pages
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upon such information or from communicating such information to any other Person
or entity under circumstances in which it is reasonably foreseeable that such
Person or entity is likely to purchase or sell such securities in reliance upon
such information.
Furthermore, in consideration of the Confidential Information being
furnished to you, you agree that until the expiration of 42 calendar days from
the date of this Agreement, you shall not, and shall cause your affiliates not
to, without the express written permission of the Company (i) in any manner,
acquire, agree to acquire or make any proposal to acquire, directly or
indirectly, by means of purchase (open-market or otherwise) from any person
other than the Company, beneficial ownership of any securities or property of
the Company or any of its subsidiaries or (ii) in any manner, dispose, agree to
dispose or make any proposal to dispose, directly or indirectly, by means of
sale, assignment, transfer, encumbrance, contract to sell, grant of an option to
purchase or in any other manner, beneficial ownership of any securities or
property of the Company or any of its subsidiaries.
4. RETURN OF CONFIDENTIAL INFORMATION.
Upon the request of the Company at any time after the date hereof, you
will promptly deliver to the Company any Confidential Information (and all
copies thereof) obtained or possessed by you. Notwithstanding the delivery to
the Company (or the destruction by you) of Confidential Information pursuant to
this Section 4, you will continue to be bound by the confidentiality obligations
and other obligations under this Agreement.
5. NO WAIVER.
No failure or delay by the Company in exercising any right, power or
privilege under this Agreement will operate as a waiver thereof, and no single
or partial exercise of any such right, power or privilege will preclude any
other or future exercise thereof or the exercise of any other right, power or
privilege under this Agreement. No provision of this Agreement can be waived or
amended except by means of a written instrument that is validly executed on
behalf of the Company and that refers specifically to the particular provision
or provisions being waived or amended.
6. REMEDIES.
You shall indemnify and hold harmless the Company and the Company's
affiliates against and from, and shall compensate and reimburse the Company and
the Company's affiliates for, any damage, loss, claim, liability or expense
(including reasonable legal fees and the cost of enforcing the Company's rights
under this Agreement) arising directly or indirectly out of or resulting
directly or indirectly from any unauthorized use or disclosure of any
Confidential Information or any other breach of this Agreement. You acknowledge
and agree that money damages would not be a sufficient remedy for any breach of
this Agreement by you and that the Company would suffer irreparable harm as a
result of any such breach. Accordingly, the Company also will be entitled to
equitable relief, including injunction and specific performance, as a remedy for
any breach or threatened breach of this Agreement and you further agree to
waive, any requirements for the securing or posting of any bond in connection
with such remedy. The indemnification and equitable remedies referred to above
will
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CUSIP No. 67010C100 13D Page 11 of 13 Pages
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not be deemed to be the exclusive remedies for a breach of this Agreement, but
rather will be in addition to all other remedies available at law or in equity
to the Company. In the event of litigation relating to this Agreement, if a
court of competent jurisdiction determines that (i) you have breached this
Agreement, you will be liable for, and will pay to the Company and the Company's
affiliates, the reasonable legal fees incurred by the Company and the Company's
affiliates in connection with such litigation (including any appeal relating
thereto) or (ii) the Company has breached this Agreement, the Company will be
liable for and will pay to you or your affiliates the reasonable legal fees
incurred by you and your affiliates in connection with such litigations
(including any appeal relating thereto).
7. SUCCESSORS AND ASSIGNS; APPLICABLE LAW; JURISDICTION AND VENUE.
This Agreement will be binding upon you and your heirs, successors and
assigns, and will inure to the benefit of the Company and its affiliates and
their respective heirs, successors and assigns. This Agreement will be governed
by and construed in accordance with the laws of the State of Florida (without
giving effect to principles of conflicts of laws). You: (a) consent and submit
to the non-exclusive jurisdiction of the state and federal courts located in the
State of Florida for purposes of any action, suit or proceeding arising out of
or relating to this Agreement; (b) irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding brought by
the Company arising out of or relating to this Agreement in any state or federal
court located in the State of Florida; and (c) irrevocably and unconditionally
waive the right to plead or claim, and irrevocably and unconditionally agree not
to plead or claim, that any action, suit or proceeding brought by the Company
arising out of or relating to this Agreement that is brought in any state or
federal court located in the State of Florida has been brought in an
inconvenient forum.
8. MISCELLANEOUS
(a) The term "Person," as used in this Agreement, will be broadly
interpreted to include any individual and any corporation, partnership, entity,
group, tribunal or governmental authority.
(b) The bold-faced captions appearing in this Agreement have been
included only for convenience and shall not affect or be taken into account in
the interpretation of this Agreement.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) By making Confidential Information or other information available
to you, the Company is not, and shall not be deemed to be, granting (expressly
or by implication) any license or other right under or with respect to any
patent, trade secret, copyright, trademark or other proprietary or intellectual
property right.
(e) This Agreement constitutes the entire agreement between you and
the Company regarding the subject matter hereof.
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CUSIP No. 67010C100 13D Page 12 of 13 Pages
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(f) This Agreement and all obligations created hereunder shall expire
one year from the date hereof.
(g) This Agreement may be executed in counterparts which, when taken
together, shall constitute one and the same instrument.
* * *
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CUSIP No. 67010C100 13D Page 13 of 13 Pages
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
NOVOSTE CORPORATION
By: /s/ Daniel G. Hall
-------------------------------------
Name: Daniel G. Hall
Title: Vice President, Secretary and
General Counsel
STEEL PARTNERS II, L.P.
By: /s/ Warren Lichtenstein
---------------------------
Name: Warren Lichtenstein
Title: Managing Member of General Partner