<PAGE> 1
As filed with the Securities and Exchange Commission on November 12, 1999
Registration No. 333-64081
------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1 TO
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 No.)
11960 SOUTHWEST 144TH STREET
MIAMI, FLORIDA 33186
- ---------------------------------------- ----------
(Address of principal executive offices) (zip code)
NOVEN PHARMACEUTICALS, INC. STOCK OPTION PLAN
AND
NOVEN PHARMACEUTICALS, INC. 1997 STOCK OPTION PLAN
(Full title of the plans)
ROBERT C. STRAUSS
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
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE> 2
EXPLANATORY NOTE
This Post Effective Amendment No. 1 to the Registration Statement on
Form S-8 (File No. 333-64081)(the "Registration Statement") of Noven
Pharmaceuticals, Inc. (the "Company") relates only to securities issued under
the Noven Pharmaceuticals, Inc. 1997 Stock Option Plan (the "1997 Plan"). This
Post-Effective Amendment is not and should not be regarded as an amendment to
the Registration Statement as it pertains to securities issued pursuant to the
Noven Pharmaceuticals, Inc. Stock Option Plan, also included in the
Registration Statement.
On March 26, 1999 the Board of Directors of the Company adopted the
Noven Pharmaceuticals, Inc. 1999 Long-Term Incentive Plan (the "1999 Plan").
The Company's stockholders approved the 1999 Plan on June 8, 1999, effective as
of 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 1997 Plan as of June 9, 1999, are now
available for issuance under the 1999 Plan.
The 1999 Plan replaced the 1997 Plan, and the Company has not granted
and does not intend to grant any further options to purchase Common Stock under
the 1997 Plan. However, under the terms of the 1997 Plan, the adoption of the
1999 Plan did not deprive any optionee under the 1997 Plan of any option to
purchase Common Stock which was granted pursuant to the 1997 Plan and was
outstanding as of June 9, 1999 (the "Outstanding Options"). Accordingly, the
Company intends to continue to issue and sell shares of Common Stock under the
1997 Plan from time to time upon the exercise of Outstanding Options, until no
further shares of Common Stock are issuable upon the exercise of Outstanding
Options.
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
-1-
<PAGE> 3
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.
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.
-2-
<PAGE> 4
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
3.1 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).
3.2 Amended and Restated By-laws of the Company.*
5 Opinion of Shapo, Freedman & Bloom, P.A.*
23.1 Consent of Shapo, Freedman & Bloom, P.A.*
23.2 Consent of Deloitte-Touche, LLP (incorporated by reference to
Exhibit 23 of the Company's Annual Report on Form 10-K for
the year ended December 31, 1998, filed on March 29,1999).
25.1 Powers of Attorney.*
- --------------------
*Previously filed.
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
-3-
<PAGE> 5
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.
-4-
<PAGE> 6
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
------------------------------------------
Robert C. Strauss, President
and Chief Executive Officer and Director
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
* Chairman of the Board November 12, 1999
- --------------------------------
Steven Sablotsky
/s/ Robert C. Strauss President and Chief Executive November 12, 1999
- --------------------------------- Officer and Director
Robert C. Strauss (Principal Executive Officer)
/s/ James B. Messiry Chief Financial Officer November 12, 1999
- --------------------------------- (Principal Financial Officer)
James B. Messiry
/s/ Leonard E. Maniscalco Executive Director-Finance November 12, 1999
- --------------------------------- (Principal Accounting Officer)
Leonard E. Maniscalco
* Director November 12, 1999
- --------------------------------
Sheldon H. Becher
* Director November 12, 1999
- --------------------------------
Sidney Braginsky
</TABLE>
-5-
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Rodolfo C. Bryce Director November 12, 1999
- --------------------------------
Rodolfo C. Bryce
* Director November 12, 1999
- --------------------------------
Lawrence J. DuBow
* Director November 12, 1999
- --------------------------------
Mitchell Goldberg
*By: /s/ Robert C. Strauss
------------------------
Robert C. Strauss
Attorney-in-Fact
</TABLE>
-6-
