form8k_assetpurchase.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
________________
FORM
8-K
________________
CURRENT
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
report (Date of earliest event reported): March 17, 2009
ATHEROGENICS,
INC.
(Exact
Name of Registrant as Specified in its Charter)
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Georgia
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0-31261
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58-2108232
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(State
or other jurisdiction
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(Commission
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(I.R.S.
Employer
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of
incorporation)
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File
Number)
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Identification
Number)
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8995
Westside Parkway
Alpharetta,
GA 30004
(Address
of principal executive offices)
Registrant's
telephone number, including area code (678) 336-2500
_________________
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions (see General Instruction A.2.
below):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01 Entry Into a Material Definitive Agreement
On March 17, 2009, AtheroGenics, Inc.
(the “Company”) entered into an Asset Purchase Agreement (the “Purchase
Agreement”) with Crabtree Acquisition Co., LLC (the
“Purchaser”). Pursuant to the Purchase Agreement, the Purchaser
agreed to purchase substantially all of the Company’s non-cash assets (the
“Asset Sale”) for $2,000,000 (the “Purchase Price”) in a transaction to be
completed under Section 363 of Chapter 11 of Title 11 of the United States Code
(the “Bankruptcy Code”). The Purchaser will not assume any existing
indebtedness of the Company.
The Asset Sale is expected to be
completed in the first quarter of 2009 and is subject to (i) the approval of the
U.S. Bankruptcy Court for the Northern District of Georgia, (ii) the Company not
receiving higher or better offers and (iii) other customary closing conditions.
In the event the Asset Sale is not completed because the Company receives a
higher or better offer, the Company will be required to pay the Purchaser a
break-up fee in an amount equal to $200,000 and reimburse the Purchaser for its
actual, reasonable, out-of-pocket expenses up to $200,000 that were incurred in
connection with Purchaser’s execution of the Purchase Agreement.
Under the priority scheme established
by the Bankruptcy Code, the Company’s creditors are generally entitled to
receive any distributions of the Company’s assets before the Company’s
shareholders are entitled to receive any such proceeds. As of January
31, 2009, the Company had approximately $48.9 million in cash and cash
equivalents and approximately $306.7 million in prepetition
liabilities. Accordingly, the
Company believes that its shareholders will receive no value for their shares of
the Company’s common stock as part of the bankruptcy proceedings.
The Purchaser is a Delaware limited
liability company and a former member of the Company’s board of directors is an
investor in the Purchaser. Following completion of the Asset Sale,
the Purchaser intends to retain certain employees of the Company on terms and
conditions that the Purchaser shall determine in its discretion.
The foregoing description of the
Purchase Agreement is a general description only and is qualified in its
entirety by the Purchase Agreement, which is attached as Exhibit 10.1 hereto and
incorporated herein by reference.
Item
9.01. Financial Statements and Exhibits.
The
following exhibits are filed with this current report on Form 8-K.
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10.1
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Asset
Purchase Agreement, dated March 17, 2009, by and between Crabtree
Acquisition Co., LLC, AtheroGenics, Inc. and King & Spalding
LLP
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SIGNATURE
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned, hereunto duly
authorized.
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ATHEROGENICS,
INC.
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Date: March
18, 2009
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By:
/s/MARK P.
COLONNESE
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Mark
P. Colonnese
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Executive
Vice President, Commercial Operations
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and
Chief Financial Officer
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EXHIBIT
INDEX
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10.1
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Asset
Purchase Agreement, dated March 17, 2009, by and between Crabtree
Acquisition Co., LLC, AtheroGenics, Inc. and King & Spalding
LLP
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