-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DfIdoZA2Y7y/qp5ALTcMPIvw2EU1/obxXBU2JrvEKj/7NsWMW7FQgwf4Fgz5byVI 6v1FHYF/B6EkSDRBMuU9aw== 0000950144-98-010917.txt : 19980924 0000950144-98-010917.hdr.sgml : 19980924 ACCESSION NUMBER: 0000950144-98-010917 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980923 EFFECTIVENESS DATE: 19980923 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: NOVEN PHARMACEUTICALS INC CENTRAL INDEX KEY: 0000815838 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 592767632 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-64081 FILM NUMBER: 98713502 BUSINESS ADDRESS: STREET 1: 11960 SW 144TH ST CITY: MIAMI STATE: FL ZIP: 33186 BUSINESS PHONE: 3052535099 MAIL ADDRESS: STREET 1: 11960 SW 144TH STREET CITY: MIAMI STATE: FL ZIP: 33185 S-8 1 NOVEN PHARMACEUTICALS FORM S-8 1 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
======================================================================================================================== 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) ======================================================================================================================== Common Stock par value $.0001 per share (3) 4,993,500 (2) $4.00(3) $19,974,000 $6,591.42 ========================================================================================================================
(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. 2 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. 3 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. 2 4 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 3 5 ITEM 8. EXHIBITS. The exhibits filed as part of this Registration Statement are as follows:
EXHIBIT NUMBER DESCRIPTION ------ ----------- 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.
4 6 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.
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 5 7 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. 6 8 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.
SIGNATURE TITLE DATE - --------- ----- ---- 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)
7 9 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
8 EX-5.1 2 OPINION OF SHAPO, FREEDMAN & BLOOM, P.A. 1 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 EX-23.1 3 CONSENT OF DELOITTE & TOUCHE LLP 1 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 -----END PRIVACY-ENHANCED MESSAGE-----