1
As filed with the Securities and Exchange Commission on February 20, 2001
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
ATHEROGENICS, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-2108232
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
8995 WESTSIDE PARKWAY, ALPHARETTA, GEORGIA 30004
(Address of principal executive offices, including zip code)
ATHEROGENICS, INC. EQUITY OWNERSHIP PLAN
(Full title of the plan)
---------------
RUSSELL M. MEDFORD COPY TO:
PRESIDENT AND CHIEF EXECUTIVE OFFICER LEONARD A. SILVERSTEIN, ESQ.
ATHEROGENICS, INC. LONG ALDRIDGE & NORMAN LLP
8995 WESTSIDE PARKWAY 303 PEACHTREE STREET, N.E.
ALPHARETTA, GEORGIA 30004 SUITE 5300
(Name and address of agent for service) ATLANTA, GEORGIA 30308-3201
(678) 336-2500 (404) 527-4000
(Telephone number, including area code,
of agent for service)
2
CALCULATION OF REGISTRATION FEE
======================================================================================
Title Of Proposed Proposed
Securities Amount Maximum Maximum Amount Of
To Be To Be Offering Price Aggregate Registration
Registered Registered (1) Per Share (2) Offering Price (2) Fee (2)
======================================================================================
Common Stock,
no par value 3,155,453 $5.75 $18,143,854.75 $4,535.96
per share
======================================================================================
(1) The shares of common stock being registered represent shares of common
stock available for issuance as restricted stock or performance share
awards or upon the exercise of options granted or to be granted under
the AtheroGenics, Inc. Equity Ownership Plan. An undetermined number of
additional shares may be issued, or the shares registered hereunder may
be combined into an undetermined lesser number of shares, as a result
of events such as stock splits, stock dividends or similar transactions
pursuant to the terms of the Equity Ownership Plan.
(2) The offering price for these shares is estimated pursuant to Rule
457(c) and (h) of the Securities Act of 1933, as amended, solely for
the purpose of calculating the registration fee and is based upon the
average of the high and low prices of our common stock on February 14,
2001 as reported on the Nasdaq National Market.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of the
instructions to the Registration Statement on Form S-8 will be sent or given to
participants in the AtheroGenics, Inc. Equity Ownership Plan as required by Rule
428(b)(1) of the rules promulgated under the Securities Act. These documents are
not being filed with the Securities and Exchange Commission as a part of this
Registration Statement in accordance with Rule 428(b) and the Note to Part I of
Form S-8.
2
3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" the information
we file with it, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is considered part of this registration statement, and later information that we
file with the Commission will automatically update and supersede this
information. We incorporate by reference documents listed below and any future
filings made with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, until we file a post-effective
amendment which indicates that all securities offered in this registration
statement have been sold or which de-registers all securities then remaining
unsold.
We have filed the following documents with the Commission:
(1) Our Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000;
(2) Our Quarterly Report on Form 10-Q for the quarter ended June
30, 2000;
(3) Our prospectus filed pursuant to Rule 424(b) under the
Securities Act on August 9, 2000, in connection with our
Registration Statement on Form S-1 (File No. 333-31140); and
(4) Our description of common stock included in Item 1 of the
Registration Statement on Form 8-A (Registration No. 0-31261),
as filed with the Commission on August 4, 2000.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Fourth Amended and Restated Articles of Incorporation eliminate, as
permitted by Section 14-2-202(b)(4) of the Georgia Business Corporation Code,
the personal liability of directors and officers for monetary damages to the
corporation or its shareholders for breach of their duty of care and other
duties; provided, however, that our Articles of Incorporation and Section
14-2-202(b)(4) of the Georgia Code do not permit us to eliminate or limit
liability for (1) a breach of duty involving appropriation of a business
opportunity of ours; (2) an act or omission which involves intentional
misconduct or a knowing violation of law; (3) any transaction from which an
improper personal benefit is derived; or (4) any payments of a dividend or any
other type of distribution that is illegal under Section 14-2-832 of the Georgia
Code. In addition, if at any time the Georgia Code is amended to authorize
further elimination or limitation of personal liability, then the liability of
each of our directors and officers shall be eliminated or limited to the fullest
extent permitted by such provisions, as so amended, without further action by
the shareholders, unless the provisions of the Georgia Code requirement such
action.
Sections 14-2-850 to 14-2-859, inclusive, of the Georgia Code govern
the indemnification of directors, officers, employees and agents. Section
14-2-851 of the Georgia Code provides for indemnification of any of our
directors for liability incurred by him in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative and whether formal or informal, in
which he may become involved by reason of being a member of our board of
directors. Section 14-2-851 also provides such indemnity for directors who, at
our request, act as directors, officers partners, trustees, employees or agents
of another foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan or another enterprise.
II-1
4
Section 14-2-851 permits indemnification if the director acted in a manner he
believed in good faith to be in or not opposed to our best interest and, in
addition, in criminal proceedings, if he had no reasonable cause to believe his
conduct was unlawful. If the required standard of conduct is met,
indemnification may include judgments, settlements, penalties, fines or
reasonable expenses, including attorneys' fees, incurred with respect to a
proceeding. However, if the director is adjudged liable to us in a derivative
action or on the basis that personal benefit was improperly received by him, the
director will only be entitled to such indemnification for reasonable expenses
as a court finds to be proper in accordance with the provisions of Section
14-2-854.
Section 14-2-852 of the Georgia Code provides that directors who are
successful with respect to any claim brought against them, which claim is
brought because they are or were directors, are entitled to indemnification
against reasonable expenses as of right. Conversely, if the charges made in any
action are sustained, the determination of whether the required standard of
conduct has been met will be made, in accordance with the provisions of Section
14-2-855 of the Georgia Code, as follows: (1) if there are two or more
disinterested members of the board of directors, by the majority vote of a
quorum of the disinterested members of the board of directors, (2) by a majority
of the members of a committee of two or more disinterested directors, (3) by
special legal counsel or (4) by the shareholders, but, in such event, the shares
owned by or voted under the control of directors seeking indemnification may not
be voted.
Section 14-2-857 of the Georgia Code provides that an officer who is
not a director has the mandatory right of indemnification granted to directors
under Section 14-2-852, as described above. In addition, we may, as provided by
our Articles of Incorporation, Bylaws, general or specific actions by our board
of directors, or by contract, indemnify and advance expenses to an officer,
employee or agent who is not a director to the extent that such indemnification
is consistent with public policy.
We plan to enter into indemnification agreements with each of our
directors and certain executive officers. The indemnification agreements set
forth certain procedural matters relating to indemnification, including the
manner in which an indemnified party may make a claim and the right of an
indemnified party to court adjudication of his or her claim if we deny such
indemnification.
Our officers and directors are presently covered by insurance which
(with certain exceptions and within certain limitations) indemnifies them
against any losses or liabilities arising from any alleged "wrongful act,"
including any alleged breach of duty, neglect, error, misstatement, misleading
statement, omissions or other act done or wrongfully attempted. We pay the cost
of such insurance as permitted by our Bylaws and the laws of the State of
Georgia.
II-2
5
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------ -----------
5 Opinion of Long Aldridge & Norman LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Long Aldridge & Norman LLP (included in its opinion
filed as Exhibit 5 hereto).
24.1 Powers of Attorney (see signature pages to this registration
statement).
ITEM 9. UNDERTAKINGS
A. RULE 415 OFFERING.
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 of 1933;
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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, because this registration statement is on Form S-8,
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 with or furnished to the Commission by the registrant
pursuant to Section 13 or 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 of 1933, 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.
II-3
6
(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. SUBSEQUENT DOCUMENTS INCORPORATED BY REFERENCE.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 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. INDEMNIFICATION OF OFFICERS, DIRECTORS AND
CONTROLLING PERSONS.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 6
above, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 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.
II-4
7
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 Alpharetta, State of Georgia, on February 20, 2001.
ATHEROGENICS, INC.
(Registrant)
By: /s/ Russell M. Medford
-----------------------------------------
Russell M. Medford
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Russell M. Medford and Mark P. Colonnese,
and each of them, as his true and lawful attorneys-in-fact, each acting alone,
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 any post-effective amendments) to this Registration Statement on Form
S-8, and to file the same, with all exhibits thereto and any 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,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents (or any of
them), or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated as of February 20, 2001.
Signatures Title
---------- -----
/s/ Russell M. Medford President, Chief Executive Officer and Director
---------------------------------- (Principal Executive Officer)
Russell M. Medford
/s/ Mark P. Colonnese Vice President of Finance and Administration and
---------------------------------- Chief Financial Officer
Mark P. Colonnese (Principal Financial Officer and Principal Accounting
Officer)
/s/ Michael A. Henos Chairman of the Board of Directors
----------------------------------
Michael A. Henos
(Signatures continued on following page)
8
/s/ R. Wayne Alexander Director
----------------------------------
R. Wayne Alexander
/s/ Vaughn D. Bryson Director
----------------------------------
Vaughn D. Bryson
/s/ T. Forcht Dagi Director
----------------------------------
T. Forcht Dagi
/s/ Arda Minocherhomjee Director
----------------------------------
Arda Minocherhomjee
/s/ Arthur M. Pappas Director
----------------------------------
Arthur M. Pappas
/s/ Richard S. Schneider Director
----------------------------------
Richard S. Schneider
/s/ William A. Scott Director
----------------------------------
William A. Scott
2
9
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
5 Opinion of Long Aldridge & Norman LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Long Aldridge & Norman LLP (included in its
opinion filed as Exhibit 5 hereto).
24.1 Powers of Attorney (see signature pages to this
registration statement).
3