AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 18, 2002
REGISTRATION NO. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ATRIX LABORATORIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 84-1043826
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
2579 MIDPOINT DRIVE
FORT COLLINS, COLORADO 80525
(970) 482-5868
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
2000 STOCK INCENTIVE PLAN
1999 NON-EMPLOYEE DIRECTOR STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION PLAN
AMENDED AND RESTATED PERFORMANCE STOCK OPTION PLAN
(Full title of the plans)
BRIAN G. RICHMOND
CHIEF FINANCIAL OFFICER AND
ASSISTANT SECRETARY
ATRIX LABORATORIES, INC.
2579 MIDPOINT DRIVE
FORT COLLINS, COLORADO 80525
(970) 482-5868
(Name, address, and telephone number,
including area code, of agent for service)
Copies to:
BRIAN V. CAID, ESQ.
MORRISON & FOERSTER LLP
370 17TH STREET, SUITE 5200
DENVER, COLORADO 80202
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO TO BE PRICE PER OFFERING REGISTRATION
BE REGISTERED(1) REGISTERED(2) SHARE(3) PRICE(3) FEE
---------------- ------------- --------- --------- ------------
Common Stock, $.001 par value, Issuable Upon Exercise of
Outstanding Options:
2000 Stock Incentive Plan 167,754 $25.10(4) $ 4,210,625.40(4) $ 387.38
Nonqualified Stock Option Plan 7,980 $13.38(4) $ 106,772.40(4) $ 9.82
Amended and Restated Performance Stock Option Plan 996,604 $10.43(4) $10,394,579.72(4) $ 956.30
Common Stock, $.001 par value, Reserved for Future Grants:
2000 Stock Incentive Plan 832,246 $20.36(5) $16,944,528.56(5) $1,558.90
Nonqualified Stock Option Plan 42,020 $20.36(5) $ 855,527.20(5) $ 78.71
1999 Non-Employee Director Stock Option Plan 18,560 $20.36(5) $ 377,881.60(5) $ 34.76
Amended and Restated Performance Stock Option Plan 3,396 $20.36(5) $ 69,142.56(5) $ 6.36
Total 2,068,560 $32,959,057.44 $3,032.23
(1) Each share of common stock being registered pursuant to this Registration
Statement includes a right to purchase one one-hundredth of a share of Series A
Preferred Stock pursuant to an Amended and Restated Rights Agreement between the
Registrant and American Stock Transfer & Trust Company, as Rights Agent.
(2) This Registration Statement shall also cover any additional shares of common
stock which become issuable under any of the referenced plans being registered
pursuant to this Registration Statement by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
Registrant's receipt of consideration that results in an increase in the number
of the outstanding shares of Registrant's common stock.
(3) Estimated solely for the purpose of calculating the registration fee.
(4) Computed in accordance with Rule 457(h) under the Securities Act of 1933,
based on the weighted average per share exercise price of outstanding options
under the referenced plan.
(5) Computed in accordance with Rule 457(h) and 457(c) under the Securities Act
of 1933, based on the average of the high and low prices per share of the
Registrant's common stock on January 14, 2002 as reported on The Nasdaq National
Market.
EXPLANATORY NOTE
Pursuant to General Instruction E to Form S-8 under the Securities Act
of 1933, this Registration Statement is filed to register additional shares of
the Registrant's common stock, par value $.001 per share, reserved for issuance
as follows:
o 1,000,000 additional shares reserved for issuance under the
terms of the Registrant's Amended and Restated Performance
Stock Option Plan,
o 1,000,000 additional shares reserved for issuance under the
terms of the Registrant's 2000 Stock Incentive Plan, and
o 50,000 additional shares reserved for issuance under the terms
of the Registrant's Nonqualified Stock Option Plan.
In addition, this Registration Statement is being filed to register
18,560 shares of the Registrant's common stock, par value $.001 per share,
reserved for issuance under the terms of the Registrant's 1999 Non-Employee
Director Stock Option Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required by Part I of Form S-8
will be sent or given to plan participants pursuant to Rule 428(b)(1) of the
Securities Act of 1933. Such documents need not be filed with the Securities and
Exchange Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. Such documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of Form S-8, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934 are incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000, and Amendment No. 1 on Form 10-K/A to its Annual Report on
Form 10-K for the year ended December 31, 2000 (File No. 0-18231).
2
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2001, June 30, 2001 and September 30, 2001 (File No. 0-18231).
(c) The Registrant's Current Reports on Form 8-K (File No. 0-18231),
dated:
o December 7, 2001, filed with the SEC on December 10,
2001
o November 16, 2001, filed with the SEC on November 27,
2001
o October 15, 2001, filed with the SEC on October 17,
2001
o August 24, 2001, filed with the SEC on August 27,
2001
o August 8, 2001, filed with the SEC on August 10, 2001
o April 4, 2001, filed with the SEC on June 20, 2001
o April 20, 2001, filed with the SEC on April 24, 2001
o December 29, 2000, filed with the SEC on February 23,
2001
o December 29, 2000, filed with the SEC on January 9,
2001
(d) The description of the Registrant's common stock contained in its
Registration Statement on Form 8-A, filed with the SEC on January 12, 1990,
including any amendments or reports filed with the SEC for the purpose of
updating such description.
(e) The description of the Registrant's Series A Preferred Stock
Purchase Rights contained in its Registration Statement on Form 8-A, filed with
the SEC on October 1, 1998, as amended by Amendment No. 1 thereto on Form 8-A/A,
filed with the SEC on November 27, 2001, and any amendments or reports filed
with the SEC for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this 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 modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
3
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Warren L. Troupe, a partner at Morrison & Foerster LLP, is a director
of the Registrant. Morrison & Foerster LLP is corporate counsel to the
Registrant. Members of Morrison & Foerster LLP beneficially own 2,657 shares of
the Registrant's common stock and hold options to acquire an additional 28,700
shares of common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law, or DGCL,
provides, in general, that a corporation shall have the power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, other than an
action by or in the right of the corporation, by reason of the fact that the
person is or was a director or officer of the corporation, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action,
suit or proceeding, if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation and if, with respect to any criminal action or proceeding, the
person had no reasonable cause to believe the person's conduct was unlawful.
Section 145(b) of the DGCL provides, in general, that a corporation
shall have the power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that the person is or was a director or officer of the
corporation, against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to be indemnified for such
expenses which the court shall deem proper.
The Registrant has implemented such indemnification provisions in its
Amended and Restated Certificate of Incorporation and Bylaws which provide that
officers and directors shall be entitled to be indemnified by the Registrant to
the fullest extent permitted by law against all expenses, liabilities and loss
including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred in connection with
any action, suit or proceeding by reason of the fact that he or she is or was an
officer or director of the Registrant.
4
Section 145(g) of the DGCL provides, in general, that a corporation
shall have the power to purchase and maintain insurance on behalf of any person
who is or was a director or officer of the corporation against any liability
asserted against the person or incurred by the person in any such capacity, or
arising out of the person's status as such, whether or not the corporation would
have the power to indemnify the person against such liability under Section 145.
Pursuant to Section 145(g) of the DGCL the Registrant maintains insurance on
behalf of the directors and officers serving at the request of the Registrant.
The foregoing summaries are not intended to be complete and are
necessarily subject to the complete text of the DGCL, the Registrant's Amended
and Restated Certificate of Incorporation and Bylaws, and the arrangements
referred to above, and are qualified in their entirety by reference thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of KPMG LLP
23.3 Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on page 8)
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 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
5
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;
(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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
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.
(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 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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) 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 foregoing provisions, 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 of 1933 and will be governed by the final adjudication of such
issue.
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 Fort Collins, State of Colorado, on January 18, 2002.
ATRIX LABORATORIES, INC.
By: /s/ Brian G. Richmond
-----------------------------------------------
Brian G. Richmond
Chief Financial Officer and Assistant Secretary
7
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David R. Bethune and Brian G. Richmond,
and each or either 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 capacitates, 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 connection therewith,
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 agents, or either of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
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/ David R. Bethune Chairman of the Board and Chief Executive January 18, 2002
------------------------------------ Officer (Principal Executive Officer)
David R. Bethune
/s/ Brian G. Richmond Chief Financial Officer and Assistant Secretary January 18, 2002
------------------------------------ (Principal Financial and Accounting Officer)
Brian G. Richmond
/s/ H. Stuart Campbell Director January 18, 2002
------------------------------------
H. Stuart Campbell
/s/ Dr. D. Walter Cohen Director January 18, 2002
------------------------------------
Dr. D. Walter Cohen
/s/ Sander A. Flaum Director January 18, 2002
------------------------------------
Sander A. Flaum
/s/ C. Rodney O'Connor Director January 18, 2002
------------------------------------
C. Rodney O'Connor
/s/ Nicolas G. Bazan Director January 18, 2002
------------------------------------
Nicolas G. Bazan
/s/ Warren L. Troupe Director January 18, 2002
------------------------------------
Warren L. Troupe
/s/ Dr. George J. Vuturo Director January 18, 2002
------------------------------------
Dr. George J. Vuturo
8
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of KPMG LLP
23.3 Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on page 8 of this Registration
Statement)