As filed with the Securities and Exchange Commission on July 5, 2000
Registration Statement No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST HORIZON PHARMACEUTICAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 58-2004779
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
660 HEMBREE PARKWAY, SUITE 106
ROSWELL, GEORGIA 30076
(Address, including zip code, of registrant's principal executive offices)
1997 NON-QUALIFIED STOCK OPTION PLAN
2000 STOCK PLAN
(Full Title of Plan)
MAHENDRA G. SHAH, PH.D.
660 HEMBREE PARKWAY, SUITE 106
ROSWELL, GEORGIA 30076
(770) 442-9707
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
STEPHEN D. FOX, ESQ.
ARNALL GOLDEN & GREGORY, LLP
2800 ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3450
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of each class of Amount to be offering price per aggregate registration
securities registered share (1) offering price (1) fee
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Common Stock, $.001 par value 1,758,000(2) $9.9844 $17,552,575 $4,633.88
Common Stock, $.001 par value 2,000,000(3) $9.9844 $19,968,800 $5,271.76
Total 3,758,000 $9.9844 $37,521,375 $9,905.64
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457 (c) and (h) based on the average of the bid and asked price of
the Company's Common Stock on June 29, 2000, as reported by The Nasdaq
Stock Market.
(2) Includes shares of Common Stock underlying options outstanding under the
1997 Non-Qualified Stock Option Plan.
(3) Includes shares of Common Stock issuable under the 2000 Stock Plan.
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PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
are hereby incorporated by reference:
(a) The Company's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Act"), on June 1, 2000 (File No.
333-30764);
(b) The description of the Registrant's Common Stock set forth in the
Registrant's Form 8-A Registration Statement (File No. 000-30123) filed March
27, 2000.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after the filing hereof and prior to a filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which de-registers all securities remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such reports and 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.
As permitted by Delaware law, the Registrant's Restated Certificate of
Incorporation provides that no director of the Registrant will be personally
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (a) for any breach of duty of
loyalty to First Horizon or to its stockholders, (b) for acts or omissions not
in good faith or that involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the Delaware General Corporation Law, or (d) for
any transaction from which the director derived an improper personal benefit.
The Registrant's Restated Certificate of Incorporation further provides that the
Registrant must indemnify its directors and executive officers and may indemnify
its other officers and employees and agents to the fullest extent permitted by
Delaware law. The Registrant maintains a policy of directors and officers
insurance that provides insurance against certain expenses and liabilities which
may be incurred by directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions of the Delaware
General Corporation Law and the Registrant's Bylaws, the Registrant has been
informed that indemnification is considered by the Securities and Exchange
Commission to be against public policy and therefore unenforceable.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
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5 Opinion of counsel as to legality of the
securities being registered
10.1 2000 Stock Plan
10.2 1997 Non-Qualified Stock Option Plan
23.1 Consent of Arnall Golden & Gregory, LLP
(included in opinion filed as Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included on page II-4)
Item 9. Undertakings.
The undersigned Registrant hereby undertakes as follows:
(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
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 aggregate, represent a fundamental change in the information
set forth in this registration statement;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above 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(a) or Section 15(d) of the
Exchange Act that are incorporated by reference in this registration statement.
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(2) That, for the purpose of determining any liability under the 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 the 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.
(4) That, for purposes of determining any liability under the 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 this 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.
(5) Insofar as indemnification for liabilities arising under the 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURES
In accordance with 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 of filing on Form S-8 and authorized this registration
statement to be signed on its behalf by the undersigned, in the City of Roswell,
State of Georgia, on July 5, 2000.
FIRST HORIZON PHARMACEUTICAL CORPORATION
By: /s/ R. Brent Dixon
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R. Brent Dixon, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints R. Brent Dixon and Balaji Venkataraman, and each
of them, as his true and lawful attorneys-in-fact and agents, 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 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
premises, 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 either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
[ADDITIONAL SIGNATURES ON FOLLOWING PAGE]
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 was signed by the following persons in the
capacities indicated on July 5, 2000.
SIGNATURE TITLE
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/s/ Mahendra G. Shah, Ph.D.
__________________________ Chairman of the Board and Chief Executive
Mahendra G. Shah, Ph.D. Officer (principal executive officer)
/s/ R. Brent Dixon
__________________________ President and Director
R. Brent Dixon
/s/ John N. Kapoor
__________________________ Director
John N. Kapoor, Ph.D.
/s/ Jon S. Saxe
__________________________ Director
Jon S. Saxe
/s/ Pierre Lapalme
__________________________ Director
Pierre Lapalme
/s/ Balaji Venkataraman
__________________________ Vice President and Chief Financial Officer
Balaji Venkataraman (principal financial and accounting officer)
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EXHIBIT INDEX
Exhibit No. Description
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5 Opinion of counsel as to legality of the
securities being registered
10.1 2000 Stock Plan
10.2 1997 Non-Qualified Stock Option Plan
23.1 Consent of Arnall Golden & Gregory, LLP
(included in opinion filed as Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included on page II-4)
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