As filed with the Securities and Exchange Commission on November 20, 1997
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
THERAGENICS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 58-1528626
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
5325 Oakbrook Parkway
Norcross, Georgia 30093
(Address of Principal Executive Offices) (Zip Code)
THERAGENICS CORPORATION
1997 STOCK INCENTIVE PLAN
(Full Title of the Plan)
M. Christine Jacobs
President and Chief Executive Officer
Theragenics Corporation
5325 Oakbrook Parkway
Norcross, Georgia 30093
(Name and Address of Agent for Service)
(770) 381-8338
(Telephone Number, Including Area Code, of Agent for Service)
Copies of Communications to:
M. Christine Jacobs Katherine M. Koops, Esq.
President and Chief Executive Officer Powell, Goldstein, Frazer & Murphy LLP
Theragenics Corporation Sixteenth Floor
5325 Oakbrook Parkway 191 Peachtree Street, N.E.
Norcross, Georgia 30093 Atlanta, Georgia 30303
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
Title of Securities Amount To Be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered Offering Price Aggregate Offering Registration Fee
Per Share(1) Price(1)
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per
share............................ 500,000 $45.59375 $22,796,875 $6,909
==================================================================================================================================
Rights to Purchase Common Stock,
$.01 par value per share(2)...... 500,000 rights N/A N/A N/A
==================================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h)(1) under the Securities Act of 1933, as amended (the
"Securities Act") and based on the average of the high and low sales
prices for the Common Stock reported on the Nasdaq National Market for
November 17, 1997.
(2) The Rights, which are attached to the shares of Common Stock being
registered, will be issued for no additional consideration, and therefore,
no additional registration fee is required.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996 (File No. 0-15443);
(2) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1997 (File No. 0-15443);
(3) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1997 (File No. 0-15443);
(4) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1997 (File No. 0-15443);
(5) The Registrant's Current Report on Form 8-K filed with the
Commission on January 13, 1997, as amended March 25, 1997
(File No. 0-15443);
(6) The Registrant's Current Report on Form 8-K filed with the
Commission on March 26, 1997 (File No. 0-15443);
(7) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A, as filed
with the Commission on March 2, 1987 (File No. 0-15443); and
(8) The description of the Rights contained in the Registrant's
Registration Statement on Form 8-A, as filed with the
Commission on February 26, 1997 (File No. 0-15443).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934, as
amended, prior to filing of a post-effective amendment which indicates that all
securities offered 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 part thereof from the date of filing such
documents.
Item 6. Indemnification of Directors and Officers.
Article Seventh, Section II(a) of the Registrant's Certificate of
Incorporation provides for the indemnification by the Registrant of each
director, officer and employee of the Registrant to the fullest extent permitted
by the Delaware General Corporation Law Section 145, as the same exists or may
hereafter be amended. Section 145 of the Delaware General Corporation Law
provides in relevant part that a corporation may 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, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such person's conduct was
unlawful.
In addition, Section 145 provides that a corporation may 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 such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation and 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 Delaware Court
of Chancery or 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 indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper. Delaware law further provides that nothing
in the above-described provisions shall be deemed exclusive of any other rights
to indemnification or advancement of expenses to which any person may otherwise
be entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
Article Seventh, Section I of the Company's Certificate of
Incorporation provides that a director of the Registrant shall not be liable to
the Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director. Section 102(b)(7) of the Delaware General Corporation Law
provides that a provision so limiting the personal liability of a director shall
not eliminate or limit the liability of a director for, among other things:
breach of the duty of loyalty; acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of the law; unlawful
payment of dividends; and transactions from which the director derived an
improper personal benefit.
Item 8. Exhibits.
The following items are filed as exhibits to this Registration
Statement:
Exhibit No.: Description
5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP
23.1 Consent of Grant Thornton LLP
23.2 Consent of Powell, Goldstein, Frazer & Murphy LLP
(contained in its exhibit filed as Exhibit 5.1)
24.0 Power of Attorney (included in the signature page in
Part II of the Registration Statement)
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;
(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 law 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 a 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
registration statement is on Form S-3, Form S-8 or Form F-3, and 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 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, 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, 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 the time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities 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
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 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.
<PAGE>
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, hereunto
duly authorized, in the City of Atlanta, State of Georgia, on this 19th day of
November, 1997.
THERAGENICS CORPORATION
By: /s/ M. Christine Jacobs
------------------------
M. Christine Jacobs
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints M. Christine Jacobs and Bruce W. Smith,
or any of them, 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 or all 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 each of said attorneys-in-fact and agents 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 as to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents, or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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/ Charles Klimkowki Chairman of the Board November 19, 1997
- -----------------------
Charles Klimkowski
/s/ M. Christine Jacobs President, Chief Executive November 19, 1997
- -----------------------
M. Christine Jacobs Officer and Director
(Principal Executive Officer)
/s/ John V. Herndon Director November 19, 1997
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John V. Herndon
/s/ Orwin L. Carter Director November 19, 1997
- -----------------------
Orwin L. Carter, Ph.D
/s/ Peter A.A. Saunders Director November 19, 1997
- -----------------------
Peter A. A. Saunders
/s/ Otis W. Brawley Director November 19, 1997
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Otis W. Brawley, M.D.
/s/ Bruce W. Smith Treasurer and Chief November 19, 1997
- ----------------------- Financial Officer,
Bruce W. Smith Principal Financing
and Accounting Officer
and Director
<PAGE>
INDEX TO EXHIBITS
Exhibit No.: Description
5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP
23.1 Consent of Grant Thornton LLP
23.2 Consent of Powell, Goldstein, Frazer & Murphy LLP
(contained in its exhibit filed as Exhibit 5.1)
24.0 Power of Attorney (included in the signature page
in Part II of the Registration Statement)
<PAGE>
Theragenics Corporation
November 19, 1997
Page 2
EXHIBIT 5.1
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POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 PEACHTREE STREET, N.E.
SIXTEENTH FLOOR
ATLANTA, GEORGIA 30303
(404) 572-6600
November 19, 1997
Theragenics Corporation
5325 Oakbrook Parkway
Norcross, Georgia 30093
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as counsel for Theragenics Corporation, a Delaware
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, $.01 par value per share, of the Company, to be
offered and sold by the Company pursuant to its 1997 Stock Incentive 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 adoption of the Plan as we have deemed necessary and advisable.
In all 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 state,
local and federal officials.
We express no opinion as to matters under or involving laws other than
the laws of the State of Georgia.
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 upon receipt of
lawful consideration therefor pursuant to the Plan, such
Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated January 16, 1997 accompanying the financial
statements of Theragenics Corporation included in the Annual Report on Form 10-K
for the year ended December 31, 1996 which is incorporated by referenced 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
Atlanta, Georgia
November 19, 1997
