As filed with the Securities and Exchange Commission
on September 30, 1998.
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
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
Bruce W. Smith
Secretary, Treasurer and Chief Financial Officer
Theragenics Corporation
5325 Oakbrook Parkway
Norcross, Georgia 30093
(Name and Address of Agent for Service)
(770) 271-0233
(Telephone Number, Including Area Code, of Agent for Service)
Copies of Communications to:
Eliot W. Robinson, Esq.
Powell, Goldstein, Frazer & Murphy LLP
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
<TABLE>
CALCULATION OF REGISTRATION FEE
- ---------------------------------- ----------------- ------------------------ ----------------------- --------------------
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to Be Offering Price Aggregate Offering Amount of
To Be Registered Registered Per Share(2) Price(2) Registration Fee
- ---------------------------------- ----------------- ------------------------ ----------------------- --------------------
- ---------------------------------- ----------------- ------------------------ ----------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share.................... 200,000(1) $ 14.78125 $ 2,956,250 $872.09
- ---------------------------------- ----------------- ------------------------ ----------------------- --------------------
</TABLE>
(1) Representing shares to be issued by Theragenics Corporation (the "Company")
in connection with the Theragenics Corporation Employee Stock Purchase Plan
(the "Plan").
(2) 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 sale prices
for the Common Stock reported on the New York Stock Exchange for
September 29, 1998.
<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 the Plan participants 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 Registration Statement filed on Form 8-A on July 24,
1998 (File No. 0-15443);
(2) The Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1998(File No. 0-15443);
(3) The Registrant's Quarterly Report on Form 10-Q/A for the quarterly
period ended March 31, 1998 (File No. 0-15443);
(4) The Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1998 (File No. 0-15443);
(5) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 (File No. 0-15443);
(6) The description of the Registrant's Common Stock contained in
the Company's Registration Statement on Form 8-A, as filed
with the Commission on March 2, 1987 (File No. 0-15443); and
(7) The description of Rights contained in the Registrant's
Registration Statement on Form 8-A, as filed with the
Commission on February 26, 1998 (File No. 0-15443).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the 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 a part hereof from the date of filing of 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 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), 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. Where such filing is made by incorporation by reference to a
previously filed statement or report, such statement or report is identified in
parentheses.
Exhibit No. Description
5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP
23.1 Consent of Grant Thornton LLP
Consent of Powell, Goldstein, Frazer & Murphy LLP
(contained in its exhibit
23.2 filed as Exhibit 5.1)
24.1 Power of Attorney (included in the signature page in Part
II of this 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 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; and
(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 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 the 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 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 30 day of
September, 1998.
THERAGENICS CORPORATION
By: /s/ M. Christine Jacobs
-------------------------
M. Christine Jacobs
Chairman, 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 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 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 might or could do in person, hereby ratifying and confirming all
that each of said attorneys-in-fact and agents, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
<PAGE>
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/ M. Christine Jacobs President, Chief Executive September 30, 1998
- ------------------------ Officer and Director, Chairman
M. Christine Jacobs
/s/ Bruce W. Smith Secretary, Treasurer and Chief September 30, 1998
- ------------------------ Financial Officer
Bruce W. Smith
/s/ John V. Herndon Director September 30, 1998
- ------------------------
John V. Herndon
/s/ Peter A. A. Saunders Director September 30, 1998
- ------------------------
Peter A. A. Saunders
/s/ Charles R. Klimkowski Director September 30, 1998
- -------------------------
Charles R. Klimkowski
/s/ Otis W. Brawley, M.D. Director September 30, 1998
- -------------------------
Otis W. Brawley, M.D.
/s/ Orwin L. Carter, Ph.D. Director September 30, 1998
- -------------------------
Orwin L. Carter, Ph.D.
<PAGE>
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)
24.1 Power of Attorney (included in the signature page in
Part II of this Registration Statement)
EXHIBIT 5.1
September 30, 1998
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 (i) 200,000 shares of common stock, par
value $.01 per share (the "Common Stock"), of the Company that may be issued by
the Company (the "Shares") in connection with the Theragenics Corporation
Employee Stock Purchase 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.
Based upon and subject to the foregoing and having regard for such
legal considerations as we have deemed relevant, it is our opinion that:
<PAGE>
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,
/s/ POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
------------------------------------------
Powell, Goldstein, Frazer & Murphy LLP
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated January 15, 1998 accompanying the financial
statements of Theragenics Corporation included in the Annual Report on Form 10-K
for the year ended December 31, 1997 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
September 30, 1998
