Registration No. 333- __________
As filed with the Securities and Exchange Commission on November
1, 1996.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________
THERAGENICS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 3844 58-1528626
(State or other (Primary Standard (I.R.S.Employer
jurisdiction of Industrial Identification
incorporation or Classification No.)
organization) Code Number)
M. Christine Jacobs
Chief Executive Officer
5325 Oakbrook Parkway
Norcross, Georgia 30093
(770) 381-8338
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices and Agent
For Service)
Copy to:
Richard H. Miller, Esq.
Powell, Goldstein, Frazer & Murphy
Sixteenth Floor
191 Peachtree Street, NE
Atlanta, Georgia 30303
(404) 572-6600
THERAGENICS CORPORATION, 1995 STOCK OPTION PLAN
(Full title of the Plan)
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
securities to be maximum maximum registration
to be regis- offering aggregate fee
registered tered(1) price per offering
unit(1) price(1)
Common Stock 500,000 $17.00 $8,500,000.00 $2,576.00
par value shares
$.01 per
share
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to the provisions of Rule 457(c) &
(h)(1) under the Securities Act of 1993, as amended (the
"Securities Act"). Based on the closing price of the Common
Stock on the Nasdaq National Market as of October 30, 1996.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference.
Theragenics Corporation (the "Company") hereby incorporates
by reference into this Registration Statement its Prospectus and
the following documents:
(a) The Company's Annual Report on Form 10-K for the Year
ended December 31, 1995;
(b) The Company's Quarterly Reports on Form 10-Q for the
Quarters Ended March 31, 1996 and June 30, 1996;
(c) The description of the Company's Common Stock contained
in the Form 8-A Registration Statement filed with the
Securities and Exchange Commission (the "Commission") on
March 2, 1987; and
(d) All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"),
subsequent to the date of this Registration Statement and
prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder 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 respective dates 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 such statement so modified or superseded
shall be deemed, except as so modified and superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
The class of securities offered is registered under Section
12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Under the Delaware General Corporation Law (the "DGCL"),
directors, officers, employees and other individuals may be
indemnified against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil,
criminal, administrative or investigative (other than a
derivative action) if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the bests
interests of the Company and, with respect to any criminal action
or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard of care is applicable in the
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case of a derivative action, except that indemnification only
extends to expenses (including attorneys' fees) incurred in
connection with the defense or settlement of such an action, and
the DGCL requires court approval before there can be any
indemnification of expenses where the person seeking
indemnification has been found liable to the Company.
The Seventh Article of the Company's Certificate of
Incorporation, as amended ("Article Seventh"), provides that the
Company will indemnify and hold harmless, to the fullest extent
authorized by the DGCL, as the same exists or may hereafter be
amended (but, in the case of any amendment, only to the extent
that the amendment permits the Company to provide broader
indemnification rights than the law permitted the Company to
provide before the amendment), against all expense, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in
settlement)reasonably incurred or suffered by each person who was
or is made a party or is threatened to be made a party to, or is
involved in, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (hereinafter, a "proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Company,
or is or was serving at the Company's request as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent in
connection therewith, and such indemnification will continue as
to a person who has ceased to be a director, officer, employee or
agent, and will inure to the benefit of his or her heirs,
executors and administrators; provided , however, that, except as
provided in the paragraph below, the Company will indemnify any
such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if the
board of directors of the Company (the "Board of Directors")
authorized the proceeding (or part thereof).
The right to indemnification conferred in Article Seventh
is a contract right and includes the right to be paid by the
Company the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the
DGCL requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, may only be
made by delivering to the Company an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if
it is ultimately determined in accordance with the paragraph
below that the director or officer is not entitled to be
indemnified under Article Seventh. The Company may, by action of
the Board of Directors, provide indemnification to employees and
agents of the Company with the same scope and effect as the above
indemnification of directors and officers.
The Company will provide indemnification to a director of
the Company (unless ordered by a court) only as authorized in the
specific case upon a determination that indemnification of the
director is proper in the circumstances because he or she has met
the applicable standard of conduct set forth in the DGCL. The
Company will provide indemnification of an officer, employee or
agent of the Company (unless ordered by a court) upon a
determination that indemnification of the officer, employee or
agent is proper in the circumstances because he or she has met
the applicable standard of conduct set forth in the DGCL. The
Board of Directors will make any such determination by a majority
vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding; however, if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
directors so directs, such determination will instead be made by
independent legal counsel in a written opinion or by the
Company's stockholders.
If the Company does not pay in full a claim brought under
Article Seventh within 30 days after the Company receives a
written claim, the claimant may at any time thereafter bring
suit against the Company to recover the unpaid amount of the
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claim and, if successful in whole or in part, the claimant will
be entitled to be paid also the expense of prosecuting the claim.
It will be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the
Company) that the claimant has not met the standards of conduct
which make it permissible under the DGCL for the Company to
indemnify the claimant for the amount claimed, but the burden of
proving such defense will be on the Company. Neither the
Company's failure (including by the Board of Directors,
independent legal counsel, or stockholders) to have made a
determination before the commencement of the action that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in the DGCL, nor the Company's actual determination
(including by the Board of Directors, independent legal counsel,
or stockholders) that the claimant has not met such applicable
standard of conduct, will be a defense to the action or create a
presumption that the claimant has not met the applicable standard
of conduct.
The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final
disposition conferred in Article Seventh will not be exclusive of
any other right that any person may have or acquire under any
statute, provision of the Company's Certificate of Incorporation,
by-laws (the "By-Laws"), agreement, vote of stockholders or
disinterested directors or otherwise.
The Company may maintain insurance, at its own expense, to
protect itself and any director, officer, employee or agent of
the Company or another corporation, partnership, joint venture,
trust or other enterprise against any such expense, liability or
loss, whether or not the Company would have the power to
indemnify such person against such expense, liability or loss
under the DGCL.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this
Registration Statement:
Exhibit
Number Description
5 Opinion of Powell, Goldstein, Frazer & Murphy
10.1 Theragenics Corporation, 1995 Stock Option Plan
23.1 Consent of Powell, Goldstein, Frazer & Murphy,
included in Exhibit 5
23.2 Consent of Grant Thornton LLP
24 Powers of Attorney (included on signature page)
Item 9. Undertakings.
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 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;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
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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;
and
(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.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the
Securities Act, each filing of the Company'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.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors,
officers and controlling persons of the Company pursuant
to the provisions of the By-Laws, or otherwise, the
Company 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
Company 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 Company 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 of 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.
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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 Norcross, State of Georgia, on October 31, 1996.
THERAGENICS CORPORATION
By: /s/ M. Christine Jacobs
M. Christine Jacobs,
Chief Executive Officer
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.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below hereby constitutes and appoints M. Christine Jacobs
and Bruce W. Smith, and each of them, as his or her true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her
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
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 or
she 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 or her substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Signatures Title Date
/s/ M. Christine Jacobs Chief Executive October 31, 1996
M. Christine Jacobs Officer(Principal
Executive Officer)
and Director
/s/ Bruce W. Smith Chief Financial October 31, 1996
Bruce W. Smith Officer, Treasurer
(Chief Financial
Officer) and
Secretary
/s/ Charles Klimkowski Director and October 31, 1996
Charles Klimkowski Chairman
/s/ John V. Herndon Director October 28, 1996
John V. Herndon
/s/ Orwin L. Carter Director October 28, 1996
Orwin L. Carter
/s/ Peter A.A. Saunders Director October 28, 1996
Peter A.A. Saunders
/s/ Otis W. Brawley Director October 30, 1996
Otis W. Brawley
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INDEX TO EXHIBITS
Exhibit
Number Description
5 Opinion of Powell, Goldstein, Frazer & Murphy
10.1 Theragenics Corporation, 1995 Stock Option Plan
23.1 Consent of Powell, Goldstein, Frazer & Murphy,
included in Exhibit 5
23.2 Consent of Grant Thornton LLP
EXHIBIT 5
October 30, 1996
Theragenics Corporation
5325 Oakbrook Parkway
Norcross, Georgia 30093
Re: Registration Statement on Form S-8
Theragenics Corporation 1995 Stock Option Plan
Ladies and Gentlemen:
We have served as counsel for Theragenics Corporation, a
Georgia corporation (the "Company"), in connection with the
registration under the Securities Act of 1933, as amended,
pursuant to a Registration Statement on Form S-8 (the
"Registration Statement"), of an aggregate of 500,000 shares (the
"Shares") of common stock, par value $.01 per share, of the
Company, to be issued and sold by the Company upon the exercise
of options granted to certain directors and key employees of the
Company pursuant to the Theragenics Corporation 1995 Stock Option
Plan (the "Plan").
We have examined and are familiar with originals or copies
(certified, photostatic or otherwise identified to our
satisfaction) of such documents, corporate records and other
instruments relating to the incorporation of the Company and the
authorization of the grants of stock options pursuant to the Plan
as we have deemed necessary and advisable. In such examinations,
we have assumed the genuineness of all signatures on all
originals and copies of documents we have examined, the
authenticity of all documents submitted to us as originals and
the conformity to original documents of all certified, conformed
or photostatic copies. As to questions of fact material and
relevant to our opinion, we have relied upon certificates or
representations of Company officials and of appropriate
governmental officials.
We express no opinion as to matters under or involving the
laws of any jurisdiction other than the corporate law of the
State of Delaware.
Based upon and subject to the foregoing and having regard
for such legal considerations as we have deemed relevant, it is
our opinion that:
1. The Shares have been duly authorized; and
2. Upon the issuance and delivery of the Shares pursuant
to the exercise of options and payment therefor as
provided in the Plan and as contemplated by the
Registration Statement, such Shares will be legally and
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement.
Very truly yours,
/s/ Powell, Goldstein, Frazer & Murphy
POWELL, GOLDSTEIN, FRAZER & MURPHY
THERAGENICS CORPORATION
1995 STOCK OPTION PLAN
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 3
(a) "Board" 3
(b) "Code" 3
(c) "Committee" 3
(d) "Company" 3
(e) "Director" 3
(f) "Disinterested person" 3
(g) "Employee" 3
(h) "Employer" 4
(I) "Fair Market Value" 4
(j) "ISO" 4
(k) "1934 Act" 4
(i) "Officer" 4
(m) "Option" 5
(n) "Optionee" 5
(o) "Option Price" 5
(p) "Parent" 5
(q) "Plan" 5
(r) "Purchasable" 5
(s) "Reload Option" 5
(t) "Stock" 5
(u) "Stock Option Agreement" 6
(v) "Subsidiary" 6
ARTICLE II THE PLAN 6
Section 2.1 Name 6
Section 2.2 Purpose 6
Section 2.3 Effective Date 6
Section 2.4 Termination Date 6
ARTICLE III ELIGIBILITY 6
ARTICLE IV ADMINISTRATION 7
Section 4.1 Duties and Powers of the Committee 7
Section 4.2 Interpretation; Rules 7
Section 4.3 No Liability 7
Section 4.4 Majority Rule 7
Section 4.5 Company Assistance 7
TABLE OF CONTENTS (Contd.)
ARTICLE V SHARES OF STOCK SUBJECT TO PLAN 8
Section 5.1 Limitations 8
Section 5.2 Antidilution 8
ARTICLE VI OPTIONS 10
Section 6.l Types of Options Granted 10
Section 6.2 Option Grant and Agreement 10
Section 6.3 Optionee Limitations 10
Section 6.4 $100,000 Limitation 10
Section 6.5 Option Price 11
Section 6.6 Exercise Period 11
Section 6.7 Option Exercise 11
Section 6.8 Nontransferability of Option 12
Section 6.9 Termination of Employment 12
Section 6.10 Employment Rights 13
Section 6.11 Certain Successor Options 13
ARTICLE VII CONDITIONS TO ISSUING STOCK 13
ARTICLE VIII TERMINATION, AMENDMENT AND 14
MODIFICATION OF PLAN
ARTICLE IX MISCELLANEOUS 14
Section 9.1 Replacement Option Grants 14
Section 9.2 Forfeiture for Competition 14
Section 9.3 Plan Binding on Successors 14
Section 9.4 Gender 14
Section 9.5 Headings No Part of Plan 15
THERAGENICS CORPORATION
1995 STOCK OPTION PLAN
ARTICLE I
DEFINITIONS
As used herein, the following terms have the meanings
hereinafter set forth unless the context clearly indicates to the
contrary:
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "Code" shall mean the United States Internal Revenue
Code of 1986, as amended, including effective date and transition
rules (whether or not codified). Any reference herein to a
specific section or sections of the Code shall be deemed to
include a reference to any corresponding provision of future law.
(c) "Committee" shall mean a committee of Directors
appointed from time to time by the Board, having the duties and
authority set forth herein in addition to any other authority
granted by the Board; provided, however, that the committee shall
include at least two members who are Disinterested Persons, and
that all members of the Committee who exercise any authority or
discretion, with respect to any Options granted to an Employee
who is also an Officer or Director, shall be Disinterested
persons. In the absence of the appointment of said Committee, the
duties and authority set forth herein shall rest with the full
Board and the term "'Committee" used herein shall mean the full
Board.
(d) "Company" shall mean Theragenics Corporation, a
Delaware corporation.
(e) "Director" shall mean a member of the Board.
(f) "Disinterested Person" shall have the meaning set forth
in Rule 16b-3 under the 1934 Act, as the same may be in effect
from time to time, or in any successor rule thereto, and shall be
determined for all purposes under the Plan according to
interpretative or "no-action" positions with respect thereto
issued by the Securities and Exchange Commission.
(g) "Employee" shall mean any employee of the Company or
any Subsidiary of the Company, and any Director who also serves
as an Officer and whose duties as such involve a significant time
commitment beyond that associated with preparation for and
attendance at meetings of the Board and Committees thereof.
(h) "Employer" shall mean the corporation that employs an
Optionee.
(i) "Fair Market Value" of the shares of Stock on any date
shall mean
(i) the closing sales price, regular way, or in the
absence thereof the mean of the last reported bid and asked
quotations, on such date on the exchange having the greatest
volume of trading in the shares during the thirty-day period
preceding such date (or if such exchange was not open for trading
on such date, the next preceding date on which it was open); or
(ii) if there is no price specified in (i), the final
reported sales price, or if not reported in the following manner,
the mean of the closing high bid and low asked prices in the
over-the-counter market for the shares as reported by the
National Association of Securities Dealers Automatic Quotation
System or, if not so reported, then as reported by the National
Quotation Bureau Incorporated, or if such organization is not in
existence, by an organization providing similar services, on such
date (or if such date is not a date for which such system or
organization generally provides reports then on the next
preceding date for which it does so); or
(iii) if there also is no price as specified in (ii),
the price determined by the Committee by reference to
bid-and-asked quotations for the shares provided by members of an
association of brokers and dealers registered pursuant to
subsection 15(b) of the 1934 Act, which members make a market in
the shares, for such recent dates as the Committee shall
determine to be appropriate for fairly determining current market
value; or
(iv) if there also is no price as specified in (iii),
the amount determined in good faith by the Committee on such
relevant facts, which may include opinions of independent
experts, as may be available to the Committee.
(j) "ISO" shall mean an Option that complies with and is
subject to the terms, limitations and conditions of Code Section
422A and any regulations promulgated with respect thereto.
(k) "1934 Act" shall mean the Securities Exchange Act of
1934, as the same may be amended from time to time.
(l) "Officer" shall mean a person who constitutes an
officer of the Company for the purposes of Section 16 of the 1934
Act, as determined by reference to such Section 16 and to the
rules, regulations, judicial decisions, and interpretative or
"no- action" positions with respect thereto of the Securities and
Exchange Commission, as the same may be in effect or set forth
from time to time.
(m) "Option" shall mean a contractual right to purchase
Stock granted pursuant to the provisions of Article VI hereof.
(n) "Optionee" shall mean a person to whom an Option has
been granted hereunder.
(o) "Option Price" shall mean the price at which an
Optionee may purchase a share of Stock pursuant to an Option.
(p) "Parent" shall mean any corporation (other than the
corporation with respect to which the determination is being
made) in an unbroken chain of corporations ending with the
corporation with the respect to which the determination is being
made if, at the time of the grant (or modification) of the
Option, each of the corporations other than the corporation with
respect to which the determination is being made owns stock
possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
(q) "Plan" shall mean the 1995 Stock Option Plan of the
Company.
(r) "Purchasable", when used to describe Stock, shall refer
to Stock that may be purchased by an Optionee under the terms of
this Plan on or after a certain date specified in the applicable
Stock Option Agreement.
(s) "Reload Option" shall mean an Option that is granted,
without further action of the Committee, (i) to an Optionee who
surrenders or authorizes the withholding of Stock in payment of
amounts specified in paragraphs 6.7(c) or 6.7(d) hereof, (ii) for
shares of the same number of shares as is so paid, (iii) as of
the date of such payment and at an Option Price equal to the Fair
Market Value of the Stock on such date, and (iv) otherwise on the
same terms and conditions as the Option whose exercise has
occasioned such payment, subject to such contingencies,
conditions or other terms as the Committee shall specify at the
time such exercised Option is granted.
(t) "Stock" shall mean the $.01 par value common stock of
the Company or, in the event that the outstanding shares of such
stock are hereafter changed into or exchanged for shares of a
different class of stock or securities of the Company or some
other corporation, such other stock or securities.
(u) "Stock Option Agreement" shall mean an agreement
between the Company and an Optionee setting forth the terms of an
Option.
(v) "Subsidiary" shall mean any corporation (other than
the corporation with respect to which the determination is being
made) in an unbroken chain of corporations beginning with the
corporation with respect to which the determination is being made
if, at the time of the grant (or modification) of the Option,
each of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
ARTICLE II
THE PLAN
2.1 Name. This plan shall be known as the "Theragenics
Corporation, 1995 Stock Option Plan".
2.2 Purpose. The purpose of the Plan is to advance the
interests of the Company, its shareholders, and any Subsidiary of
the Company, by offering certain Employees an opportunity to
acquire or increase their proprietary interests in the Company by
granting such persons Options to purchase Stock. The Options will
promote the growth and profitability of the Company, and any
Subsidiary of the Company, because Optionees will be provided
with an additional incentive to achieve the Company' s objectives
through participation in its success and growth.
2.3 Effective Date. The Plan shall become effective on
April 3, 1995.
2.4 Termination Date. No further Options shall be granted
hereunder on or after April 3, 2005, but all Options granted
prior to that time shall remain in effect in accordance with
their terms; provided, however, that the Plan shall terminate,
and all Options theretofore granted shall become void and may not
be exercised, on July 31, 1995, if the shareholders of the
Company shall not by that date have approved the Plan's adoption.
ARTICLE III
The persons eligible to participate in this Plan shall
consist only of Employees and Directors whose participation the
Committee determines is in the best interests of the Company.
ARTICLE IV
ADMINISTRATION
4.1 Duties and Powers of the Committee. The Plan shall be
administered by the Committee. The Committee shall select one of
its members as its Chairman and shall hold its meetings at such
time and places as it may determine. The Committee shall keep
minutes of its meetings and shall make such rules and regulations
for the conduct of its business as it may deem necessary. The
Committee shall have the power to act by unanimous written
consent in lieu of a meeting, and shall have the right to meet
telephonically. In administering the Plan, the Committee's
actions and determinations shall be binding on all interested
parties. The Committee shall have the power to grant Options in
accordance with the provisions of the Plan. Subject to the
provisions of the Plan, the Committee shall have the discretion
and authority to determine those individuals to whom Options will
be granted and whether such Options shall be accompanied by the
right to receive Reload Options, the number of shares of Stock
subject to each Option, such other matters as are specified
herein, and any other terms and conditions of a Stock Option
Agreement. To the extent not inconsistent with the provisions of
the Plan, the Committee shall have the authority to amend or
modify an outstanding Stock Option Agreement, or to waive any
provision thereof, provided that the Optionee consents to such
action.
4.2 Interpretation: Rules. Subject to the express
provisions of the Plan, the Committee also shall have complete
authority to interpret the Plan, to prescribe, amend and rescind
rules and regulations relating to it, to determine the details
and provisions of each Stock Option Agreement, and to make all
other determinations necessary or advisable in the
administration of the Plan, including, without limitation, the
amending or altering of any Options granted hereunder as may be
required to comply with or to conform to any federal, state or
local laws or regulations.
4.3 No Liability. Neither any member of the Board nor any
member of the Committee shall be liable to any person for any
act or determination made in good faith with respect to the Plan
or any Option granted hereunder.
4.4 Majority Rule. A majority of the members of the
Committee shall constitute a quorum, and any action taken by a
majority at a meeting at which a quorum is present, or any action
taken without a meeting evidenced by a writing executed by all
the members of the Committee, shall constitute the action of the
Committee.
4.5 Company Assistance. The Company shall supply full and
timely information to the Committee on all matters relating to
eligible persons, their employment, death, retirement, disability
or other termination of employment, and such other pertinent
facts as the Committee may require, The Company shall furnish the
Committee with such clerical and other assistance as is necessary
in the performance of its dutie
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN
5.1 Limitations. Subject to any antidilutive adjustment
pursuant to the provisions of Section 5.2 hereof, the maximum
number of Stock that may be issued and sold hereunder shall be
500,000. Shares subject to an Option may be either authorized and
unissued shares or shares issued and later acquired by the
Company; provided, however, that shares of Stock with respect to
which an Option has been exercised shall not again be available
for issuance hereunder. The shares covered by any unexercised
portion of an Option that has terminated for any reason, as well
as that number of shares issued pursuant to Option exercises that
is equal to the number of shares of Common Stock surrendered or
withheld, in payment of (i) the Option price of such Options or
(ii) taxes related to such exercises, may again be optioned under
this Plan, and such shares shall not be considered as having been
optioned or issued in computing the number of shares of Stock
remaining available for option hereunder.
In the event of the issuance of Options in respect of
options to acquire stock of any entity acquired, by merger or
otherwise, by the Company (or any Subsidiary of the Company), to
the extent that such issuance shall not be inconsistent with the
terms, limitations and conditions of Code Section 422A, the
aggregate number of shares of Stock for which Options may be
granted hereunder shall automatically be increased by the number
of shares subject to the Options so issued; provided, however,
that the aggregate number of shares of Stock for which Options
may be granted hereunder shall automatically be decreased by the
number of shares covered by any unexercised portion of an Option
so issued that has terminated for any reason and the shares
subject to any such unexercised portion may not be optioned to
other Employees.
5.2 Antidilution.
(a) In the event that the outstanding shares of Stock
are changed into or exchanged for a different number or kind of
shares or other securities of the Company by reason of merger,
consolidation, reorganization, recapitalization,
reclassification, combination or exchange of shares, stock split
or stock dividend, or in the event that any spin-off, spin-out or
other distribution of assets materially affects the price of the
Company's stock:
(i) The aggregate number and kind of shares of
Stock which Options may be granted hereunder shall be adjusted
proportionately by the Committee; and
(ii) The rights of Optionees (concerning the
number of shares subject to Options and the Option Price) under
outstanding Options shall be adjusted proportionately by the
Committee.
(b) If the Company shall be a party to any reorganization
in which it does not survive, involving merger, consolidation, or
acquisition of the stock or substantially all the assets of the
Company, the Committee, in its discretion, shall:
(i) declare that all Options granted under the Plan
shall become exercisable immediately notwithstanding the
provisions of the respective Stock Option Agreements regarding
exercisability, and that all such Options terminate 30 days after
the Committee gives written notice of the immediate right to
exercise all Options and of the decision to terminate all Options
not exercised within such 30-day period; or
(ii) notify all Optionees that all Options granted
under the Plan shall be assumed by the successor corporation
substituted with options issued by such corporation.
(c) If the Company is to be liquidated or dissolved in
connection with a reorganization described in paragraph 5.2(b),
the provisions of such paragraph shall apply. In all other
instances, the adoptions of a plan of dissolution or liquidation
of the Company shall cause every Option outstanding under the
Plan to terminate to the extent not exercised prior to the
adoption of the plan of dissolution or liquidation by the
shareholders, provided that the Committee in its discretion may
declare all Options granted under the Plan to be exercised at any
time on or before the fifth business day following such adoption
notwithstanding the provisions of the respective Stock Option
Agreement regarding exercisability. The Committee's actions under
this provision and the Optionee's exercise of Options under this
provision shall be subject, however, to the limitations set forth
in Article VI hereof.
(d) The adjustments described in paragraphs (a) through (c)
of this Section 5.2, and the manner of their application, shall
be determined solely by the Committee, and any such adjustment
may provide for the elimination of fractional share interests.
The adjustments required under this Article V shall apply to any
successors of the Company and shall be made regardless of the
number or type of successive events requiring such adjustments.
ARTICLE VI
OPTIONS
6.1 Types of Options Granted. Within the limitations provided
herein, Options may be granted to one Employee at one or several
times or to different Employees at the same time or at several
times or to different Employees at same time or at different
times, in either case under different terms and conditions, as
long as the terms and conditions of each Option are consistent
with the provisions of the Plan. Without limitation of the
foregoing, Options may be granted subject to conditions based on
the financial performance of the Company or any other factor the
Committee deems relevant.
6.2 Option Grant and Agreement. Each Option granted or
modified hereunder shall be evidenced (a) by either minutes of a
meeting or a written consent of the Committee, and (b) by a
written Stock Option Agreement executed by the Company and the
Optionee. The terms of the Option, including the Option's
duration, time or times of exercise, exercise price, whether the
Option is intended to be an ISO, and whether the Option is to be
accompanied by the right to receive a Reload Option, shall be
stated in the Stock Option Agreement. Separate Stock Option
Agreement shall be used for Options intended to be ISO's and
those not so intended.
6.3 Optionee Limitations. The Committee shall not grant an
ISO to any person who, at the time the ISO would be granted:
(a) is not an Employee; or
(b) owns or is considered to own stock possessing more
than 10% of the total combined voting power of all classes of
stock of the Employer, or any Parent or Subsidiary of the
Employer; provided, however, that this limitation shall not apply
if at the time an ISO is granted the Option Price is at least
110% of the Fair Market Value of the Stock subject to such Option
and such Option by its terms would not be exercisable after the
expiration of five years from the date on which the Option is
granted. For the purpose of this paragraph (b), a person shall be
considered to own (i) the stock owned, directly or indirectly, by
or for his brothers and sisters (whether by the whole or half
blood), spouse, ancestors and lineal descendants, (ii) the stock
owned, directly or indirectly, by or for a corporation,
partnership, estate, or trust in proportion to such person's
stock interest, partnership interest or beneficial interest
therein, and (iii) the stock which such person may purchase under
any outstanding options of the Employer or of any Parent or
Subsidiary of the Employer.
6.4 $100,000 Limitation. Except as provided below, the
Committee shall not grant an ISO to, or modify the exercise
provisions of outstanding ISO's held by, any person who, at the
time the ISO is granted (or modified), would thereby receive or
hold any incentive stock options (as described in Code section
422A) of the Employer and any Parent or Subsidiary of the
Employer, such that the aggregate Fair Market Value (determined
as of the respective dates of grant or modification of each
option) of the stock with respect to which such incentive stock
options are exercisable for the first time during any calendar
year is in excess of $100,000; provided, that the foregoing
restriction on modification of outstanding ISO's shall not
preclude the Committee from modifying an outstanding ISO if, as a
result of such modification and with the consent of the Optionee,
such Option no longer constitutes an ISO; and provided that, if
the $100,000 limitation described in this Section 6.4 is
exceeded, an Option that otherwise qualifies as an ISO shall be
treated as an ISO up to the limitation and the excess shall be
treated as an Option not qualifying as an ISO. The preceding
sentence shall be applied by taking options intended to be ISO's
into account in the order in which they were granted.
6.5 Option Price. The Option Price under each Option shall
be determined by the Committee. However, the Option Price shall
not be less than the Fair Market Value of the Stock, on the date
that the Option is granted (or, in the case of an ISO that is
subsequently modified, on the date of such modification).
6.6 Exercise Period. The period for the exercise of each
Option granted hereunder shall be determined by the Committee,
but the Stock Option Agreement with respect to each Option
intended to be an ISO shall provide that such Option shall not be
exercisable after the expiration of ten years from the date of
grant (or modification) of the Option. In addition, no Option
granted to an Employee who is also an Officer or Director shall
be exercisable prior to the expiration of six months from the
date such Option is granted, other than in the case of the death
or disability of such Employee.
6.7 Option Exercise.
(a) Unless otherwise provided in the Stock Option
Agreement, an Option may be exercised at any time or from time to
time during the term of the Option as to any or all whole shares
that have become Purchasable under the provisions of the Option,
but not at any time as to less than 100 shares unless the
remaining shares that have become so Purchasable are less than
100 shares. The Committee shall have the authority to prescribe
in any Stock Option Agreement that the Option may be exercised
only in accordance with a vesting schedule during the term of the
Option.
(b) An Option shall be exercised by (i) delivery to
the Treasurer of the Company at its principal office of written
notice of exercise with respect to a specified number of shares
of Stock, and (ii) payment to the Company at that office of the
full amount of the Option Price for such number of shares.
(c) The Option Price shall be paid in full upon the
exercise of the Option; provided, however, that the Committee may
provide in a Stock Option Agreement that, in lieu of cash, all or
any portion of the Option Price may be paid by tendering to the
Company shares of Stock duly endorsed for transfer and owned by
the Optionee, to be credited against the Option Price at the Fair
Market Value of such shares on the date of exercise (however, no
fractional shares may be so transferred, and the Company shall
not be obligated to make any cash payments in consideration of
any excess of the aggregate Fair Market Value of shares
transferred over the aggregate option price).
(d) In addition to and at the time of payment of the
Option Price, the Optionee shall pay to the Company in cash the
full amount of any federal, state and local income, employment or
other taxes required ta be withheld from the income of such
Optionee as a result of such exercise; provided, however, that
in the discretion of the Committee any Stock Option Agreement may
provide that all or any portion of such tax obligations,
together with additional taxes not exceeding the actual
additional taxes to be owed by the Optionee as a result of such
exercise, may, upon the irrevocable election of the Optionee, be
paid by tendering to the Company whole shares of Stock duly
endorsed for transfer and owned by the Optionee, or by
authorization to the Company to withhold shares of Stock
otherwise issuable upon exercise of the Option, in either case in
that number of shares having a Fair Market Value on the date of
exercise equal to the amount of such taxes thereby being paid,
and subject to such restrictions as to the approval and timing of
any such election as the Committee may from time to time
determine to be necessary or appropriate to satisfy the
conditions of the exemption set forth in Rule 16b-3 under the
1934 Act.
(e) The holder of an Option shall not have any of the
rights of a stockholder with respect to the shares of Stock
subject to the Option until such shares have been issued and
transferred to him upon the exercise of the Option.
6.8 Nontransferabilitv of Option. No Option or any rights
therein shall be transferable by an Optionee otherwise than by
will or the laws of descent or distribution. During the lifetime
of an Optionee, an Option granted to that Optionee shall be
exercisable only by such Optionee (or by such Optionee's guardian
or other legal representative, should one be appointed).
6.9 Termination of Employment. The Committee shall have the
power to specify, with respect to the Options granted to any
particular Optionee, the effect upon such Optionee's right to
exercise an Option as of the termination of such Optionee's
employment under various circumstances, which effect may include
immediate or deferred termination of such Optionee's rights under
Option, or acceleration of the date at which an Option may be
exercised in full.
6.10 Employment Rights. Options granted under the Plan shall
be not affected by any change of employment so long as the
Optionee continues to be Employee. Nothing in the Plan or in any
Stock Option Agreement shall confer any person any right to
continue in the employ of the Company or any Subsidiary of the
Company, or shall interfere in any way with the right of the
Company or any such Subsidiary to terminate such person's
employment at any time.
6.11 Certain Successor Options. To the extent not
inconsistent with the terms, limitations and conditions of Code
section 422A, and any regulations promulgated with respect
thereto, an Option issued in respect of an option held by an
employee to acquire stock of any entity acquired, by merger or
otherwise, by the Company (or any Subsidiary of the Company) may
contain terms that differ from those stated in this Article VI,
but solely to the extent necessary to preserve for any such
employee the rights and benefits contained in such predecessor
option, or to satisfy the requirements of Code section
425(a).
ARTICLE VII
CONDITIONS TO ISSUING STOCK
The Company shall not be required to issue or deliver any
Stock purchased upon the full or partial exercise of any Option
granted hereunder prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all
stock exchanges on which the Stock is then listed;
(b) The completion of any registration or other
qualification of such shares that the Company shall determine to
be necessary or advisable under any federal or state law or under
the rulings of the Securities and Exchange Commission or any
other governmental regulatory body, or the Company's
determination that an exemption is available from such
registration or qualification;
(c) The obtaining of any approval or other clearance
from federal or state governmental agency that the Company shall
determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time
following exercise as shall be appropriate for reasons of
administrative convenience.
Unless the shares of Stock covered by the Plan shall be the
subject of an effective registration statement under the
Securities Act of 1933, as amended, stock certificates issued and
delivered to Optionees shall bear such restrictive legends as the
Company shall deem necessary or advisable pursuant to applicable
federal and state securities laws.
ARTICLE VIII
TERMINATION, AMENDMENT AND MODIFICATION OF PLAN
The Board may at any time, (i) cause the Committee to cease
granting Options, (ii) terminate the Plan, or (iii) in any
respect amend or modify the Plan; provided, however, that the
Board (unless its actions are approved or ratified by the
shareholders of the Company within twelve months of the date the
Board amends the Plan) may not amend the Plan to;
(a) Increase the number of shares of Stock subject to
the Plan; or
(b) Change or modify the class of Employees and
Directors that may participate in the Plan.
No termination, amendment or modification of the Plan shall
affect adversely the rights of an Optionee under any outstanding
Option without the consent of the Optionee or his legal
representative.
ARTICLE IX
MISCELLANEOUS
9.1 Replacement Option Grants. At the sole discretion of
the Committee an Optionee may be given an election to surrender
an Option in exchange for a new Option.
9.2 Forfeiture for Competition. If an Optionee provides
services to a competitor of the Company or any of its
Subsidiaries, whether as an employee officer, director,
independent contractor, consultant, agent or otherwise, such
services being of a nature that can reasonably be expected to
involve the skills and experience used or developed by the
Optionee while an Employee, then that Optionee's rights under any
Options outstanding hereunder shall be forfeited and terminated,
subject to a determination to the contrary by the Committee.
9.3 Plan Binding on Successors. The Plan shall be binding
upon the successors of the Company.
9.4 Gender. Whenever used herein, the masculine pronoun
shall include the feminine gender.
9.5 Headings No Part of Plan. Headings of Articles and
Sections hereof are inserted for convenience and reference, and
do not constitute a part of the Plan.
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated January 17, 1996 accompanying the
financial statements of Theragenics Corporation included in the
Annual Report on Form 10-K for the year ended December 31, 1995
which is incorporated by reference in this Registration Statement
on Form S-8. We consent to the incorporation by reference in the
Registration Statement of the aforementioned report.
/s/ Grant Thornton LLP
Grant Thornton LLP
Atlanta, Georgia
November 1, 1996
