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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 4, 2000
REGISTRATION NO. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
ATRIX LABORATORIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 84-1043826
(State or other jurisdiction of 2579 MIDPOINT DRIVE (IRS Employer
incorporation or organization) FORT COLLINS, COLORADO 80525 Identification Number)
(970) 482-5868
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
</TABLE>
2000 STOCK INCENTIVE PLAN
(Full title of the plan)
---------------
BRIAN G. RICHMOND
VICE PRESIDENT - FINANCE AND ASSISTANT SECRETARY
ATRIX LABORATORIES, INC.
2579 MIDPOINT DRIVE
FORT COLLINS, COLORADO 80525
(970) 482-5868
(Name, address, and telephone number, including area code, of agent for service)
---------------
Copies to:
WARREN L. TROUPE, ESQ.
JULIE A. HERZOG, ESQ.
MORRISON & FOERSTER LLP
370 17TH STREET, SUITE 5200
DENVER, COLORADO 80202
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<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED(1) SHARE(2) PRICE FEE
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 1,750,000 $14.0625 $24,609,375.00 $6,496.88
=========================================================================================================================
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(1) This Registration Statement shall also cover any additional shares of
Common Stock that become issuable under the Registrant's 2000 Stock Incentive
Plan, by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the Registrant's receipt of consideration
that results in an increase in the number of the outstanding shares of
Registrant's Common Stock.
(2) Computed in accordance with Rule 457(h) of the Securities Act of 1933, as
amended. Such computation is based on the average of the high and low selling
prices per share of the Registrant's Common Stock on October 3, 2000 as reported
on The Nasdaq National Market.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE UPON FILING
IN ACCORDANCE WITH RULE 462 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference in this Registration
Statement the following documents and information filed with the Securities and
Exchange Commission (the "Commission") pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"):
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999 filed with the Commission on March 14, 2000;
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, and June 30, 2000, filed with the Commission on April 26, 2000
and July 28, 2000, respectively;
3. The Registrant's Current Reports on Form 8-K dated July 18, 2000 and
August 8, 2000, filed with the Commission on August 4, 2000 and September 7,
2000, respectively; and
4. The description of the Registrant's Common Stock as set forth in the
Registration Statement on Form 8-A filed with the Commission on January 12, 1990
and the description of the Registrant's Series A Preferred Stock Purchase Rights
as set forth in the Registration Statement on Form 8-A filed with the Commission
on October 1, 1998, including any amendments or reports filed with the
Commission for the purpose of updating such descriptions.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities remaining unsold, shall be deemed to be incorporated
by reference in this Registration Statement and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 ("Section 145") of the General Corporation Law of the State
of Delaware (the "DGCL") provides that directors and officers of Delaware
corporations may, under certain circumstances, be indemnified against expenses
(including attorneys' fees) and other liabilities actually and reasonably
incurred by them as a result of any suit brought against them in their capacity
as a director or officer, if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, if they had
no reasonable cause to believe their conduct was unlawful. Section 145 also
provides that directors and officers may also be indemnified against expenses
(including attorneys' fees) incurred by them in connection with a derivative
suit if they acted in good faith and in a manner they reasonably believed to be
in or not opposed to the best interests of the corporation, except that no
indemnification may be made without court approval if such person was adjudged
liable to the corporation.
The Registrant has implemented such indemnification provisions in its
Amended and Restated Certificate of Incorporation and Bylaws which provide that
officers and directors shall be entitled to be indemnified by the Registrant to
the fullest extent permitted by law against all expenses, liabilities and loss
including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred in connection with
any action, suit or proceeding by reason of the fact that he or she is or was an
officer or director of the Registrant.
The above discussion of the Registrant's Amended and Restated
Certificate of Incorporation and Bylaws and of the DGCL is not intended to be
exhaustive and is qualified in its entirety by such Certificate of
Incorporation, Bylaws and statutes.
Pursuant to the provisions of the DGCL, the Registrant has adopted
provisions in its Amended and Restated Certificate of Incorporation which
provide that none of the Registrant's directors shall be personally liable for
monetary damages to the Registrant or its stockholders for a breach of fiduciary
duty as a director, except for liability as a result of: (i) a breach of the
director's duty of loyalty to the Registrant or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) an act related to the unlawful stock repurchase or
payment of a dividend under Section 174 of the DGCL, and (iv) transactions from
which the director derived an improper personal benefit. Such limitation of
liability does not affect the availability of equitable remedies such as
injunctive relief or rescission.
Pursuant to Section 145(g) of the DGCL the Registrant maintains
insurance on behalf of the directors and officers serving at the request of the
Registrant.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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<CAPTION>
Exhibit No. Description
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<S> <C>
4.1 Form of Common Stock Certificate(1)
4.2 Indenture, dated November 15, 1997, by and among the Registrant and State
Street Bank and Trust Company of California, N.A., as trustee thereunder(2)
4.3 Form of Note (included in Indenture, see Exhibit 4.2)
4.4 Rights Agreement (including form of Right Certificate, as Exhibit A, and
the form of Summary of Rights, as Exhibit B)(3)
4.5 Warrant to purchase 6,750 shares of Atrix Common Stock issued to Gulfstar
Investments, Limited(4)
4.6 Certificate of Designation of the Series A Preferred Stock filed with the
State of Delaware on September 25, 1998(5)
4.7 Certificate of Designation of Preferences and Rights of Series A
Convertible Exchangeable Preferred Stock filed with the State of Delaware
on July 18, 2000(6)
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
24.1 Power of Attorney (See page 7)
</TABLE>
(1) Incorporated by reference to Registrant's Annual Report on Form 10-K for
the fiscal year ended September 30, 1993 as filed with the Securities and
Exchange Commission.
(2) Incorporated by reference to Registrant's Current Report on Form 8-K dated
November 6, 1997, as filed with the Securities and Exchange Commission.
(3) Incorporated by reference to Registrant's Registration Statement on Form
8-A, file number 000-18231.
(4) Incorporated by reference to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998 as filed with the Securities
and Exchange Commission.
(5) Incorporated by reference to Exhibit 3.1 of Registrant's Registration
Statement on Form 8-A, as filed with the Securities and Exchange Commission
on October 1, 1998.
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(6) Incorporated by reference to Exhibit 99.9 of Registrant's Current Report on
Form 8-K dated July 18, 2000, as filed with the Securities and Exchange
Commission on August 4, 2000.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering 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; 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 (1)(ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement
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relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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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 Fort Collins, State of Colorado, on October 4, 2000.
ATRIX LABORATORIES, INC.
By: /s/ Brian G. Richmond
-----------------------------------
Brian G. Richmond
Vice President - Finance and
Assistant Secretary
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David R. Bethune and Brian G. Richmond,
and each or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacitates, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agents, or either of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ David R. Bethune Chairman of the Board and Chief Executive October 4, 2000
-------------------------------- Officer (Principal Executive Officer)
David R. Bethune
/s/ Brian G. Richmond Vice President - Finance and Assistant October 4, 2000
-------------------------------- Secretary (Principal Financial and Accounting
Brian G. Richmond Officer)
/s/ H. Stuart Campbell Director October 4, 2000
--------------------------------
H. Stuart Campbell
/s/ Dr. D. Walter Cohen Director September 20, 2000
--------------------------------
Dr. D. Walter Cohen
/s/ Sander A. Flaum Director October 4, 2000
--------------------------------
Sander A. Flaum
/s/ Dr. Richard L. Jackson Director September 25, 2000
--------------------------------
Dr. Richard L. Jackson
/s/ C. Rodney O'Connor Director September 20, 2000
--------------------------------
C. Rodney O'Connor
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Dr. G. Lee Southard Director October 4, 2000
--------------------------------
Dr. G. Lee Southard
/s/ John E. Urheim Director October 4, 2000
--------------------------------
John E. Urheim
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
4.1 Form of Common Stock Certificate(1)
4.2 Indenture, dated November 15, 1997, by and among the Registrant and State
Street Bank and Trust Company of California, N.A., as trustee thereunder(2)
4.3 Form of Note (included in Indenture, see Exhibit 4.2)
4.4 Rights Agreement (including form of Right Certificate, as Exhibit A, and
the form of Summary of Rights, as Exhibit B)(3)
4.5 Warrant to purchase 6,750 shares of Atrix Common Stock issued to Gulfstar
Investments, Limited(4)
4.6 Certificate of Designation of the Series A Preferred Stock filed with the
State of Delaware on September 25, 1998(5)
4.7 Certificate of Designation of Preferences and Rights of Series A
Convertible Exchangeable Preferred Stock filed with the State of Delaware
on July 18, 2000(6)
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
24.1 Power of Attorney (See page 7)
</TABLE>
(1) Incorporated by reference to Registrant's Annual Report on Form 10-K for
the fiscal year ended September 30, 1993 as filed with the Securities and
Exchange Commission.
(2) Incorporated by reference to Registrant's Current Report on Form 8-K dated
November 6, 1997, as filed with the Securities and Exchange Commission.
(3) Incorporated by reference to Registrant's Registration Statement on Form
8-A, file number 000-18231.
(4) Incorporated by reference to the Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998 as filed with the Securities
and Exchange Commission.
(5) Incorporated by reference to Exhibit 3.1 of Registrant's Registration
Statement on Form 8-A, as filed with the Securities and Exchange Commission
on October 1, 1998.
(6) Incorporated by reference to Exhibit 99.9 of Registrant's Current Report on
Form 8-K dated July 18, 2000, as filed with the Securities and Exchange
Commission on August 4, 2000.
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