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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 23, 1998
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NOVEN PHARMACEUTICALS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 59-2767632
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
11960 SOUTHWEST 144TH STREET
MIAMI, FLORIDA 33186
(305) 253-5099
(Address, including zip code, and telephone number,
including area code, of registrant's principal offices)
NOVEN PHARMACEUTICALS, INC. STOCK OPTION PLAN
AND
NOVEN PHARMACEUTICALS, INC. 1997 STOCK OPTION PLAN
(Full Title of the Plans)
ROBERT C. STRAUSS
PRESIDENT
11960 SOUTHWEST 144 STREET
MIAMI, FLORIDA 33186
(305) 253-5099
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES OF ALL COMMUNICATIONS TO:
LEONARD H. BLOOM, ESQ.
SHAPO, FREEDMAN & BLOOM, P.A.
FIRST UNION FINANCIAL CENTER
200 SOUTH BISCAYNE BLVD., SUITE 4750
MIAMI, FLORIDA 33131
(305) 358-4440
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED (1) OFFERING PRICE PER SHARE AGGREGATE OFFERING REGISTRATION FEE
PRICE (3)
========================================================================================================================
<S> <C> <C>
Common Stock par
value $.0001 per
share (3) 4,993,500 (2) $4.00(3) $19,974,000 $6,591.42
========================================================================================================================
</TABLE>
(1) THIS REGISTRATION STATEMENT ALSO COVERS ANY ADDITIONAL SHARES THAT MAY
HEREAFTER BECOME ISSUABLE AS A RESULT OF THE ADJUSTMENT PROVISIONS OF
NOVEN PHARMACEUTICALS, INC. STOCK OPTION PLAN (THE "PLAN") AND THE 1997
STOCK OPTION PLAN (THE "1997 PLAN").
(2) INCLUDES 993,500 SHARES OF COMMON STOCK SUBJECT TO OUTSTANDING STOCK
OPTIONS PREVIOUSLY GRANTED UNDER THE PLAN, WHICH PLAN TERMINATED ON
DECEMBER 31, 1996 AND 980,294 SHARES OF COMMON STOCK SUBJECT TO STOCK
OPTIONS PREVIOUSLY GRANTED UNDER THE 1997 PLAN.
(3) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE IN
ACCORDANCE WITH RULE 457 UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"). THE PROPOSED MAXIMUM OFFERING PRICE IS BASED ON
THE CLOSING SALES PRICE OF SHARES OF COMMON STOCK AS REPORTED ON THE
NASDAQ NATIONAL MARKET ON SEPTEMBER 16, 1998 OF $4.00 PER SHARE.
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PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants in The Noven Pharmaceuticals, Inc.
Stock Option Plan (the "Plan") and the 1997 Stock Option Plan (the "1997 Plan"),
as specified by Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act").
Such document(s) are not being filed with the Commission, but
constitute (along with the documents incorporated by reference into the
Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
(Not Required in Prospectus)
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Commission are
incorporated herein by reference.
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997.
(b) The Registrant's Quarterly Reports on Form 10-Q for
the quarter ended March 31, 1998, and for the quarter
ended June 30, 1998.
(c) The description of the Registrant's Common Stock
contained in the Company's Registration Statement on
Form S-3 filed with the Securities and Exchange
Commission on February 18, 1992.
In addition, all documents filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c) 14 or 15(d) of the Securities Exchange Act of
1934, as amended, after the date of this Registration Statement and prior to the
termination of the offering shall be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof from the date of the filing
of such document with the Commission. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modified or superseded such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of the Registration
Statement.
The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all documents incorporated by reference, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference to
the information that is incorporated). Requests should be directed to the
Secretary, Noven Pharmaceuticals, Inc. 11960 Southwest 144th Street, Miami,
Florida 33186, telephone number (305) 253-5099.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
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ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Article IX of the Company's Certificate of
Incorporation, Article VII of the Company's By-Laws, as amended, and to Section
145 of the General Corporation Law for the State of Delaware ("DGCL"). Section
145 of the DGCL authorizes the Registrant to provide indemnification against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred, in non-derivative actions, suits
or proceedings brought by third parties, to an officer, director, employee or
agent of the Registrant, if such party acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful as determined in accordance
with the statute.
In a derivative action, i.e., one by or in the right of the Registrant,
indemnification may be made only for expenses actually and reasonably incurred
by directors, officers, employees or agents in connection with the defense or
settlement of an action or suit, and only with respect to a matter as to which
they shall have acted in good faith and in a manner they reasonably believe to
be in or not opposed to the best interest of the Registrant, except that no
indemnification shall be made if such person shall have been adjudged liable to
the Registrant, unless and only to the extent that the court in which the action
or suit was brought shall determine upon application that the defendant
directors, officers employees or agents are fairly and reasonably entitled to
indemnity for such expenses despite such adjudication of liability.
The Registrant has purchased officer and director liability insurance.
Subject to a deductible for each loss, the policy covers certain claims against
officers and directors of the Registrant up to specified policy limits.
Insurance coverage will not extend to certain claims, including claims based
upon or attributable to the insured's gaining personal profit or advantage to
which he is not legally entitled, claims brought or contributed to by the
dishonesty of the insured, and claims under Section 16(b) of the Securities
Exchange Act of 1934, as amended, for an accounting of profits resulting from
the purchase or sale by the insured of the Registrant's securities.
ITEM 7. EXEMPTION FORM REGISTRATION CLAIMED.
Not applicable
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ITEM 8. EXHIBITS.
The exhibits filed as part of this Registration Statement are
as follows:
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EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
3.1 -- Certificate of Incorporation of the Registrant dated April 10,
1987 and January 28, 1987, incorporated by reference to Exhibit
3(a) of Registration Statement on Form S-18 (Commission File No.
33-20331-A).
3.2 -- Amendments to Certificate of Incorporation of the Registrant
dated April 10, 1987 and January 28, 1988, incorporated by
reference to Exhibit 3(b) of Registration Statement on Form
S-18 (Commission File No. 33-20331-A).
3.3 -- Amendment to Certificate of Incorporation of the Registrant
dated June 21, 1991, incorporated by reference to Exhibit 3.3
of Registration Statement on Form S-2 (Commission File No.
33-45784).
3.4 -- Amendment to Certificate of Incorporation of the Registrant
dated August 17, 1992, incorporated by reference to Exhibit
3.4 of Form 10-K filed with the Securities and Exchange
Commission on March 31, 1994.
3.5 -- By-laws of the Registrant, as amended and restated as of April
28, 1992, incorporated by reference to Exhibit 3.5 of Form
10-K filed with the Securities and Exchange Commission on
March 31, 1994.
3.6 -- Amendment to Certificate of Incorporation of the Registrant
dated August 2, 1994 incorporated by reference to Exhibit 3.6
of Form 10-K filed with the Securities and Exchange
Commission on March 31, 1995.
3.7 -- Amendment to Certificate of Incorporation dated June 9, 1997
incorporated by reference to Exhibit 10.29 of Form 10-K filed
with the Securities and Exchange Commission on March 30,
1998.
5.1 -- Opinion of Shapo, Freedman & Bloom, P.A.
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<TABLE>
<S> <C>
10.1 -- Amended and Restated Stock Option Plan of the Registrant,
incorporated by reference to Exhibit 10.10 of Form 10-K for
the year ended December 31, 1990 filed with the Securities
and Exchange Commission on March 28, 1991, as further
amended on June 23, 1992 and incorporated by reference to
the 1992 Proxy Statement filed with the Securities and
Exchange Commission on April 30, 1992.
10.2 -- 1997 Stock Option Plan incorporated by reference to the 1997
Proxy Statement filed with the Securities and Exchange
Commission on April 29, 1997
23.1 -- Consent of Deloitte-Touche LLP
23.2 -- Consent of Shapo, Freedman & Bloom, P.A. (included in
opinion filed as Exhibit 5.1).
24.1 -- Powers of Attorney -- included as part of the signature page
hereto.
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
A. (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.
(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; and
(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 (I)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed or
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furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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 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 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 by a director, officer or 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 of whether such indemnification by it is against
public policy and 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, Noven Pharmaceuticals, Inc., 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 Miami, County of
Dade, State of Florida, on September 23, 1998.
NOVEN PHARMACEUTICALS, INC.
By: /s/ ROBERT C. STRAUSS
-----------------------------------
ROBERT C. STRAUSS, President, Chief
Executive Officer and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert C. Strauss and William A. Pecora,
and each of them, as true and lawful attorneys-in-fact and agents with full
power 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
(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, 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 foregoing, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agents, or any of them, or their substitute or substitutes,
may lawfully do or causes to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in their
capacities on September 16, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
By: /s/ Steven Sablotsky Chairman of the Board September 23, 1998
----------------------------
Steven Sablotsky
By: /s/ Robert C. Strauss President and Chief September 23, 1998
---------------------------- Executive Officer and Director
Robert C. Strauss (Principal Executive Officer)
</TABLE>
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<TABLE>
<S> <C> <C>
By: /s/ William A. Pecora Vice President and September 23, 1998
-------------------------- Chief Financial Officer
William A. Pecora (Principal Financial and
Accounting Officer)
By: /s/ Mitchell Goldberg Director September 23, 1998
--------------------------
Mitchell Goldberg
By: /s/ Sheldon H. Becher Director September 23, 1998
--------------------------
Sheldon H. Becher
By: /s/ Sidney Braginsky Director September 23, 1998
--------------------------
Sidney Braginsky
By: /s/ Lawrence J. DuBow Director September 23, 1998
--------------------------
Lawrence J. DuBow
</TABLE>
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Exhibit 5.1
September 23, 1998
Noven Pharmaceuticals, Inc.
11960 Southwest 144 Street
Miami, Florida 331186
Ladies and Gentlemen:
We have acted as legal counsel to Noven Pharmaceuticals, Inc., a
Delaware corporation (the "Company"), with respect to the filing by the Company
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), of a Registration Statement on Form S-8 (the
"Registration Statement") covering the issuance of up to 4,993,500 shares of the
Company's common stock, par value $.0001 per share (the "Shares").
Based on our review of the Certificate of Incorporation, as amended,
and amended Bylaws of the Company, and documents related thereto, and such other
certificates, documents and records as we have deemed necessary and appropriate,
we are of the opinion that the Shares, when issued and paid for upon the terms
set forth in the Stock Option Plan and the 1997 Stock Option Plan, will be
validly issued, fully paid and non-assessable.
We consent to the filing of this opinion of counsel as Exhibit 5.1 to
the Registration Statement. In giving our consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Securities and Exchange
Commission thereunder. The opinion expressed is limited to the matters set forth
in this letter and no other opinion should be inferred beyond the matter
expressly stated.
Very truly yours,
SHAPO, FREEDMAN & BLOOM, P.A.
By: /s/ LEONARD H. BLOOM
-----------------------------
LEONARD H. BLOOM
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Noven Pharmaceuticals, Inc. on Form S-8 of our report dated February 13, 1998,
appearing in the Annual Report on Form 10-K of Noven Pharmaceuticals, Inc. for
the year ended December 31, 1997.
/s/ Deloitte & Touche LLP
Certified Public Accountants
Miami, Florida
September 18, 1998
