SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
ATHEROGENICS, INC.
(Exact name of registrant as specified in its charter)
Georgia 58-2108232
(State of Incorporation) (I.R.S. Employer
Identification No.)
8995 Westside Parkway
Alpharetta, Georgia 30004
(Address of principal executive offices, including zip code)
If this form relates to If this form relates to
the registration of a the registration of a
class of securities class of securities
pursuant to Section pursuant to Section
12(b) of the Exchange 12(g) of the Exchange
Act and is effective Act and is effective
pursuant to General pursuant to General
Instruction A.(c), Instruction A.(d),
please check the please check the
following box. : following box. : X
Securities Act registration statement file number to which this
form relates: Not applicable
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock Purchase Rights
(Title of class)
Item 1. Description of Registrant's Securities to be
Registered.
On November 9, 2001, the Board of Directors of AtheroGenics
declared a dividend distribution of one "Right" for each
outstanding share of common stock to shareholders of record as of
the close of business on November 19, 2001 (the "Record Date").
Each "Right" includes an "Initial Right" and "Subsequent Rights,"
each of which entitles the registered holder to purchase from
AtheroGenics a number of shares of common stock equal to eight
shares of common stock multiplied by a fraction, the numerator of
which is the number of shares of common stock outstanding on the
"Initial Stock Acquisition Date" in the case of the Initial
Rights and a "Subsequent Stock Acquisition Date" in the case of
Subsequent Rights, and the denominator of which is the number of
shares of common stock outstanding on the respective Stock
Acquisition Date that are not beneficially owned by an "Acquiring
Person" or its affiliates or associates. The purchase price for
each share of common stock is 20% of Current Market Price for
such stock, measured as of the respective Stock Acquisition Date.
The description and terms of the Rights are set forth in a Rights
Agreement between AtheroGenics and American Stock Transfer &
Trust Company, as Rights Agent dated as of November 9, 2001.
The summary description of the Rights set out below does not
purport to be complete, and is qualified in its entirety by
reference to the Rights Agreement, as it may be amended from time
to time, which is attached hereto as an exhibit and incorporated
herein by reference.
Until the Rights are triggered, they are evidenced by the
certificates representing the shares of AtheroGenics common
stock. Initial Rights are triggered upon the earlier to occur of
(i) 10 business days following a public announcement that a
person or a group of affiliated or associated persons has
acquired beneficial ownership of 15% or more of the outstanding
shares of AtheroGenics common stock, (ii) 10 business days
following the date on which the Board of Directors first learns
that such a person or group has acquired beneficial ownership of
15% or more of the outstanding common stock, or (iii) 10 business
days following the commencement of a tender offer or an exchange
offer that would result in a person or group beneficially owning
15% or more of such outstanding shares of common stock (the
earlier of such dates being called the "Initial Distribution
Date"). Subsequent Rights are triggered after a previous
Distribution Date upon the earlier to occur of (i) 10 business
days following a public announcement that a person or a group of
affiliated or associated persons has acquired beneficial
ownership of 15% or more of the outstanding shares of
AtheroGenics common stock, (ii) 10 business days following the
date on which the Board of Directors first learns that such a
person or group has acquired beneficial ownership of 15% or more
of the outstanding common stock, (iii) 10 business days following
the commencement of a new tender offer or exchange offer that
would result in such a person or group beneficially owning 15% or
more of such outstanding shares of common stock, or (iv) 10
business days following the date upon which a person or a group
of affiliated or associated persons who previously had acquired
and still retains beneficial ownership of 15% or more of the
outstanding shares of common stock of AtheroGenics acquires an
additional 10% or more of the outstanding shares of common stock
(the earlier of such dates being called a "Subsequent
Distribution Date"). Subsequent Rights can be triggered any
number of times following previous Distribution Dates and prior
to the redemption of the Rights. The person or group triggering
the Subsequent Rights need not be the same person or group who
triggered the previous Rights. Any person who is the beneficial
owner or 17% or more of our common stock on the Record Date,
however, will not be deemed an Acquiring Person and therefore
will not
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trigger the Rights unless that person subsequently
becomes the beneficial owner of an aggregate of 20% or more of
our common stock.
Until the Initial Distribution Date, (i) the Rights will be
evidenced by the common stock certificates and will be
transferred only with such common stock certificates, (ii) new
common stock certificates issued after November 19, 2001 will
contain a notation incorporating the Rights Agreement by
reference and (iii) the surrender for transfer of any
certificates for common stock will also constitute the transfer
of the Rights associated with the common stock represented by
such certificate. Following the Initial Distribution Date and
until a Subsequent Distribution Date, (i) Subsequent Rights will
be evidenced by the common stock certificates and by previously
issued Rights Certificates with respect to those Rights that
remain unexercised at a Subsequent Distribution Date, and will be
transferred only with such common stock certificates or
previously issued Rights Certificates, (ii) new common stock
certificates issued after November 19, 2001 will contain a
notation incorporating the Rights Agreement by reference and
(iii) the surrender for transfer of any certificates for common
stock or previously issued Rights Certificates will also
constitute the transfer of the Rights associated with the common
stock represented by such certificate or with that previously
issued Rights Certificate.
The Rights are not exercisable until the Initial Stock
Acquisition Date in the case of the Initial Rights and a
Subsequent Stock Acquisition Date in the case of Subsequent
Rights. The Rights will expire at the close of business on
November 8, 2011, unless earlier redeemed by the Board as
described below.
As soon as practicable after the respective Distribution
Date, we will mail Rights Certificates evidencing the Initial
Rights or the Subsequent Rights, as the case may be, to holders
of record of the common stock, and, in the case of Subsequent
Rights, holders of record of unexercised previously issued Rights
Certificates, as of the close of business on the respective
Distribution Date. Thereafter, the separate Rights Certificates
alone will represent the respective Rights. Except as otherwise
determined by the Board of Directors, only shares of common stock
issued prior to the respective Distribution Date will be issued
with Rights, provided, however, that Subsequent Rights also will
be issued with the shares of common stock issuable upon exercise
of Rights evidenced by previously issued Rights Certificates.
These Subsequent Rights may not be exercised until the previous
Rights are exercised.
If at any time a person causes an Initial Stock Acquisition
Date or a Subsequent Stock Acquisition Date to occur (the
"Acquiring Person"), following the close of business on the tenth
business day after the respective Stock Acquisition Date each
holder of a Right will thereafter have the right to receive, upon
exercise, a number of shares of common stock equal to eight
shares of common stock multiplied by a fraction, the numerator of
which is the number of shares of common stock outstanding on the
Stock Acquisition Date, and the denominator of which is the
number of shares of common stock outstanding on the Stock
Acquisition Date that are not beneficially owned by the Acquiring
Person or its affiliates or associates. The price for the
exercise of each Right shall be equal to (x) 20% of the Current
Market Price of the common stock on the Stock Acquisition Date,
multiplied by (y) the number of shares of common stock to be
received upon exercise. Notwithstanding any of the foregoing,
following the occurrence of any event which causes a Stock
Acquisition Date, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person will be null and void.
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In the event that, at any time following the respective
Stock Acquisition Date, (i) we are acquired in a merger or other
business combination in which we are not the surviving
corporation, or (ii) all of our shares are acquired in a share
exchange or we engage in a merger or consolidation in which all
or part of our outstanding shares of common stock are changed
into or exchanged for stock, other securities or assets of any
other person or (iii) 50% or more of our assets or earning power
is sold or transferred, each holder of a Right (except Rights
which previously have been voided as set forth above) will
thereafter have the right to receive, upon exercise, a number of
shares of common stock of the acquiring company equal to the
product of eight times the result obtained by dividing the
current market price of our common stock by the current market
price of the common stock of the acquiring corporation or, if
such stock is not traded in public markets, of its parent
corporation, multiplied by a fraction, the numerator of which is
the number of shares of common stock outstanding on the Stock
Acquisition Date with respect to the exercised Right and the
denominator of which is the number of shares of common stock not
owned by the Acquiring Person or its affiliates or associates.
The purchase price will be calculated on the same basis as if the
Rights holder were exercising a Right to purchase our common
stock at that time.
With certain exceptions, the Rights Agreement does not
require an adjustment in the purchase price until cumulative
adjustments amount to at least 1% of the purchase price. We will
not issue any fractional Rights, and, in lieu thereof, we will
make an adjustment in cash based on the market price of the
Rights on the last trading date prior to the date of adjustment.
We will not issue fractional shares upon exercise of the Rights,
and, in lieu thereof, we will make an adjustment in cash based on
the market price of the common stock on the last trading date
prior to the date of exercise.
In general, the Board of Directors may redeem the Initial
Rights or the Subsequent Rights, at a price of $.0001 per Right,
at any time before the close of business on the tenth business
day following a respective Stock Acquisition Date with respect to
the Rights (subject to extension under certain circumstances).
Immediately upon the action of the Board of Directors ordering
redemption of the Rights, the Rights will terminate and the
holders of Rights to be redeemed will only be entitled to receive
the $.0001 per Right redemption price.
Until a Right is exercised, the holder of that Right, as
such, will have no rights as a shareholder of AtheroGenics,
including, without limitation, the right to vote or to receive
dividends. While the distribution of the Rights will not be
taxable to shareholders or to AtheroGenics, shareholders may,
depending upon the circumstances, recognize taxable income in the
event that the Rights become exercisable for our common stock (or
other consideration) or for common stock of an acquiring company
as set forth above.
The Board of Directors may amend the provisions of the
Rights Agreement prior to the close of business on the tenth
business day following the Initial Stock Acquisition Date, in the
case of the Initial Rights, and a Subsequent Stock Acquisition
Date, in the case of Subsequent Rights. After such dates, the
Board of Directors may amend the provisions of the Rights
Agreement in order to cure any ambiguity, to make changes which
do not adversely affect the interests of holders of Rights, or to
shorten or lengthen any time period under the Rights Agreement.
However, the Board may not amend the Rights Agreement to adjust
the time period governing redemption at any time that the Rights
are not redeemable.
Page 4
As of the close of business on November 9, 2001, 27,793,173
shares of our common stock were outstanding, and options and
warrants to purchase an aggregate of 3,191,950 shares of our
common stock were outstanding.
The Rights have certain anti-takeover effects. The Rights
will cause substantial dilution to a person or group that
attempts to acquire AtheroGenics in a manner which causes the
Rights to become exercisable, unless the Board first approves the
terms of an offer for all shares and redeems the Rights. The
Rights, however, should not affect any prospective offeror
willing to negotiate with the Board or willing to make an offer
at a fair price and otherwise in the best interests of
AtheroGenics and its shareholders, as determined by the Board.
The Rights should not interfere with any merger or other business
combination approved by the Board since the Board may, at its
option, before the merger or business combination, redeem all,
but not less than all, of the then-outstanding Rights at the
redemption price or amend the Rights Agreement to permit the
transaction.
Item 2. Exhibits.
The following exhibits are incorporated by reference to a
prior filing as indicated:
Exhibit No. Description
1 Rights Agreement dated as of November 9,2001
between AtheroGenic, Inc. and American Stock
Transfer & Trust Company, as Rights Agent
(incorporated by reference to the AtheroGenics,
Inc.'s Current Report on Form 8-K dated
November 9, 2001, as filed with the Securities
and Exchange Commission on November 19, 2001).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: November 19, 2001.
AtheroGenics, Inc.
By: /s/ MARK P. COLONNESE
Mark P. Colonnese
Vice President, Finance and
Administration
Chief Financial Officer and
Secretary