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As filed with the Securities and Exchange Commission on November 12, 1999
Registration No. 333-______
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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
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11960 SOUTHWEST 144TH STREET
MIAMI, FLORIDA 33186
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(Address of principal executive offices) (zip code)
NOVEN PHARMACEUTICALS, INC. 1999 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
JAMES B. MESSIRY
NOVEN PHARMACEUTICALS, INC.
11960 SOUTHWEST 144TH STREET
MIAMI, FLORIDA 33186
(Name and address of agent for service)
(305) 253-5099
(Telephone number, including area code,
of agent for service)
With a Copy To:
STEVEN D. RUBIN, ESQ.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
150 WEST FLAGLER STREET, SUITE 2200
MIAMI, FLORIDA 33130
(305) 789-3500
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE(2)
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Common Stock, par value
$.0001 per share 1,000,000 $9.97 $9,970,000 $2,772
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which may become issuable under the Noven
Pharmaceuticals, Inc. 1999 Long-Term Incentive Plan by reason of any
stock dividend, stock split, recapitalization or any other similar
transaction effected without receipt of consideration which results in
an increase in the number of outstanding shares of Common Stock.
(2) Estimated solely for purpose of calculating the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and
low prices of the Common Stock on the Nasdaq Stock Market as of a date
within five business days preceding the date of filing of this
Registration Statement.
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EXPLANATORY NOTE
This Registration Statement on Form S-8 of Noven Pharmaceuticals, Inc.
(the "Company") relates to securities issued under the Noven Pharmaceuticals,
Inc. 1999 Long-Term Incentive Plan (the "1999 Plan"). Pursuant to General
Instruction E of Form S-8, this Registration Statement also relates to
2,768,848 shares of Common Stock previously registered by the Company under its
Registration Statement on Form S-8, filed on September 23, 1998 (File No.
333-64801), for which the Company paid a filing fee of $3,654.88.
On March 26, 1999 the Board of Directors of the Company adopted the
1999 Plan. The Company's shareholders approved the 1999 Plan on June 8, 1999,
effective June 9, 1999. The 1999 Plan authorizes 1,000,000 shares of the
Company's common stock, par value $.0001 per share (the "Common Stock"), to be
issued in the form of stock options and other equity-based awards. In addition,
pursuant to the terms of the 1999 Plan, the 2,768,848 shares of Common Stock
that remained available for grant under the Noven Pharmaceuticals, Inc. 1997
Stock Option Plan as of June 9, 1999 are now available for issuance under the
1999 Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated herein by this
reference:
(1) The Company's Annual Report on Form 10-K for the
year ended December 31, 1998, filed with the
Commission on March 29, 1999.
(2) The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999, filed with the
Commission on May 17, 1999.
(3) The Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1999, filed with the
Commission on August 16, 1999.
(4) The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A, filed
with the Commission on October 21, 1988.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation (the
"Certificate") provides that the Company shall indemnify to the fullest extent
authorized by the Delaware General Corporation Law (the "DGCL"), each person
who is involved in any litigation or other proceeding because such person is or
was a director or officer of the Company, against all expense, loss or
liability reasonably incurred or suffered in connection therewith. The
Company's Restated Bylaws provide that a director or officer may be paid
expenses incurred in defending any proceeding in advance of its final
disposition upon receipt by the Company of an undertaking, by or on behalf of
the director or officer, to repay all amounts so advanced if it is ultimately
determined that such director or officer is not entitled to indemnification.
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Section 145 of the DGCL permits a corporation to indemnify
any director or officer of the corporation against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with any action, suit or proceeding brought
by reason of the fact that such person is or was a director or officer of the
corporation, if such person acted in good faith and in a manner that he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if he had
no reason to believe his conduct was unlawful. In a derivative action, (i.e.,
one brought by or on behalf of the corporation), indemnification may be made
only for expenses, actually and reasonably incurred by any director or officer
in connection with the defense or settlement of such an action or suit, if such
person acted in good faith and in a manner that he reasonably believed to be in
or not opposed to the best interests of the corporation, except that no
indemnification shall be made if such person shall have been adjudged to be
liable to the corporation, unless and only to the extent that the court in
which the action or suit was brought shall determine that the defendant is
fairly and reasonably entitled to indemnity for such expenses despite such
adjudication of liability.
Pursuant to Section 102(b)(7) of the DGCL, the Certificate
eliminates the liability of a director to the corporation or its stockholders
for monetary damages for such breach of fiduciary duty as a director, except
for liabilities arising (a) from any breach of the director's duty of loyalty
to the corporation or its stockholders, (b) from acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(c) under Section 174 of the DGCL, or (d) from any transaction from which the
director derived an improper personal benefit.
The Company has obtained primary and excess insurance
policies insuring the directors and officers of the Company and its
subsidiaries against certain liabilities they may incur in their capacity as
directors and officers. Under such policies, the insurer, on behalf of the
Company, may also pay amounts for which the Company has granted indemnification
to the directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's
Annual Report on Form 10-K for the year ended December 31,
1998, filed on March 29, 1999).
4.2 Amended and Restated By-laws of the Company (incorporated by
reference to Exhibit 3.5 of the Company's Annual Report on
Form 10-K for the year ended December 31, 1993, filed on
March 31, 1994).
5 Opinion of Stearns Weaver Miller Weissler Alhadeff &
Sitterson, P.A.
23.1 Consent of Stearns Weaver Miller Weissler Alhadeff &
Sitterson, P.A. (included as part of Exhibit 5 above).
23.2 Consent of Deloitte-Touche, LLP
25.1 Powers of Attorney (included as part of the Signature Page of
this Registration Statement)
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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;
(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;
(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) do not apply if the information required
to be included in a post-effective amendment by
those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are
incorporated by reference in the 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 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, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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 or paid 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 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 Miami, State of Florida, on the 12th day of
November, 1999.
NOVEN PHARMACEUTICALS, INC.
By: /s/Robert C. Strauss
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Robert C. Strauss, President
and Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert C. Strauss and James B. Messiry,
and each of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his 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
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or his 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 on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ Steven Sablotsky Chairman of the Board November 12, 1999
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Steven Sablotsky
/s/ Robert C. Strauss President and Chief Executive November 12, 1999
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Robert C. Strauss (Principal Executive Officer)
/s/ James B. Messiry Chief Financial Officer November 12, 1999
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James B. Messiry
/s/ Leonard E. Maniscalco Executive Director-Finance November 12, 1999
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Leonard E. Maniscalco
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SIGNATURE TITLE DATE
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/s/ Sheldon H. Becher Director November 12, 1999
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Sheldon H. Becher
/s/ Sidney Braginsky Director November 12, 1999
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Sidney Braginsky
/s/ Rodolfo C. Bryce Director November 12, 1999
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Rodolfo C. Bryce
/s/ Lawrence J. DuBow Director November 12, 1999
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Lawrence J. DuBow
/s/ Mitchell Goldberg Director November 12, 1999
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Mitchell Goldberg
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EXHIBIT 5
November 12, 1999
Mr. Robert C. Strauss
Noven Pharmaceuticals, Inc.
11960 Southwest 144th Street
Miami, FL 33186
Dear Mr. Strauss:
We have acted as counsel for Noven Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), with respect to the preparation and filing with
the Securities and Exchange Commission of a Form S-8 Registration Statement
(the "Registration Statement") in connection with the registration of 1,000,000
shares of the Company's Common Stock, par value $.0001 per share (the "Common
Stock"), issuable pursuant to the Noven Pharmaceuticals, Inc. 1999 LongTerm
Incentive Plan (the "Plan").
In connection with our opinion, we have examined the Registration
Statement, including all exhibits thereto, as filed with the Securities and
Exchange Commission, and the Restated Certificate of Incorporation, and Amended
and Restated Bylaws of the Company, as well as such other documents and
proceedings as we have considered necessary for the purposes of this opinion.
We have also examined and are familiar with the proceedings taken by the
Company to authorize the issuance of the shares of Common Stock pursuant to the
Plan.
In rendering this opinion, we have undertaken no independent review of the
operations of the Company. Instead, we have relied solely upon the documents
described above. In examining such documents, we have assumed, without
independent investigation: (i) the authenticity of all documents submitted to
us as originals, (ii) the conformity to original documents of all documents
submitted to us as certified or photostatic copies, (iii) the authenticity of
the originals of such latter documents, and (iv) that all factual information
supplied to us was accurate, true and complete. In addition, as to questions of
fact material to the opinions expressed herein, we have relied upon the
accuracy of (i) all representations and warranties submitted to us for purposes
of rendering the opinion and (ii) factual
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Mr. Robert C. Strauss
November 12, 1999
Page 2
recitals made in the resolutions adopted by the Board of Directors of the
Company. We express no opinion as to federal securities laws or the "blue sky"
laws of any state or jurisdiction. This opinion is rendered as of the date
hereof and we assume no obligation to update or supplement this opinion to
reflect any facts or circumstances that may hereafter change and/or come to our
attention.
Based upon the foregoing and having regard to legal considerations which
we deem relevant, we are of the opinion that the shares of Common Stock
registered under the Registration Statement and issuable in accordance with the
Plan will, if and when issued and delivered by the Company against payment of
adequate consideration therefor in accordance with the terms and conditions of
the Plan, be validly issued, fully paid and non-assessable.
We hereby consent to the inclusion of this opinion letter as an exhibit to
the Registration Statement and to any references to this firm in the
Registration Statement and in the documents incorporated therein by reference.
Very truly yours,
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
/s/ Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
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EXHIBIT 23.2
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 March 5, 1999
appearing in the Annual Report on form 10-K of Noven Pharmaceuticals, Inc. for
the year ended December 31, 1998.
DELOITTE-TOUCHE, LLP
Miami, Florida
November 9, 1999
