-----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, Rr5+7sIKISleya2h3LxdYtosxLw0Ya36L7fMoWMQnre/2AxeVCkFD+w/T/B+dRr2 6AK2/XPEM1LOY8gz6sB21A== 0000950144-99-012923.txt : 19991115 0000950144-99-012923.hdr.sgml : 19991115 ACCESSION NUMBER: 0000950144-99-012923 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991112 EFFECTIVENESS DATE: 19991112 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: 333-90835 FILM NUMBER: 99749740 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 1 As filed with the Securities and Exchange Commission on November 12, 1999 Registration No. 333-______ - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- 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 No.) 11960 SOUTHWEST 144TH STREET MIAMI, FLORIDA 33186 - --------------------------------------- ---------- (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
=================================================================================================================================== 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) - ---------------------------------- -------------------- ------------------------ --------------------------- --------------------- Common Stock, par value $.0001 per share 1,000,000 $9.97 $9,970,000 $2,772 ===================================================================================================================================
(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. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- 2 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. -1- 3 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) -2- 4 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. -3- 5 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 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.
SIGNATURE TITLE DATE - --------- ----- ---- /s/ Steven Sablotsky 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
-4- 6
SIGNATURE TITLE DATE - --------- ----- ---- /s/ Sheldon H. Becher Director November 12, 1999 - --------------------------- Sheldon H. Becher /s/ Sidney Braginsky Director November 12, 1999 - --------------------------- Sidney Braginsky /s/ Rodolfo C. Bryce Director November 12, 1999 - --------------------------- Rodolfo C. Bryce /s/ Lawrence J. DuBow Director November 12, 1999 - --------------------------- Lawrence J. DuBow /s/ Mitchell Goldberg Director November 12, 1999 - --------------------------- Mitchell Goldberg
-5- EX-5 2 OPINION OF STEARNS WEAVER 1 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 2 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. EX-23.2 3 CONSENT OF DELOITTE-TOUCHE 1 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 -----END PRIVACY-ENHANCED MESSAGE-----