As filed with the Securities and Exchange Commission on March 23, 2004
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
A.D.A.M., Inc.
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(Exact name of registrant as specified in its charter)
Georgia 58-187870
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1600 RiverEdge Parkway, Suite 100, Atlanta, Georgia 30328-4658
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(Address of Principal Executive Offices) (Zip Code)
A.D.A.M., Inc. 2002 Stock Incentive Plan
(Full Title of the Plan)
Robert S. Cramer, Jr., Chairman of the Board and Chief Executive Officer
A.D.A.M., Inc.
1600 RiverEdge Parkway, Suite 100
Atlanta, Georgia 30328-4568
(770) 980-0888
(Name, address, telephone number, including
area code, of agent for service)
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Copies Requested to:
Arthur Jay Schwartz, Esq.
Smith, Gambrell & Russell, LLP
1230 Peachtree Street, N.E., Suite 3100
Atlanta, Georgia 30309
(404) 815-3632
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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share(1) Price(2)
Options and Underlying 2,500,000
Shares of Common Stock Shares $1.90 $4,750,000 $602
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) based upon the average of the high and low reported
prices of the Common Stock on the Nasdaq Small Cap Market on March 17, 2004.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are hereby incorporated by reference into
this Registration Statement, and all documents subsequently filed by A.D.A.M.,
Inc. (the "Company") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities and Exchange Act of 1934, 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 part hereof
from the date of filing such documents:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2002;
2. The Company's Quarterly Reports on Form 10-QSB for the quarters ended
March 31, 2003, June 30, 2003 and September 30, 2003;
3. The Company's Current Reports on Form 8-K, filed on May 8, 2003, July
30, 2003, October 29, 2003, and February 18, 2004; and
6. The Company's Registration Statement on Form 8-A, as filed with the
Commission on October 11, 1995, to register the Company's $0.01 par
value Common Stock under Section 12(b) of the Securities Exchange Act
of 1934, as amended, which Registration Statement contains a
description of the Common Stock.
Item 4. Description of Securities.
No response is required to this item.
Item 5. Interests of Named Experts and Counsel.
No response is required to this item.
Item 6. Indemnification of Officers and Directors.
The Georgia Business Corporation Code requires that a corporation
indemnify a director who is wholly successful, on the merits or otherwise, in
the defense of any proceeding to which he was a party because he is or was a
director of the corporation against reasonable expenses incurred by the director
in connection with the proceeding. The Georgia Business Corporation Code permits
a corporation to indemnify a director who is involved in a legal proceeding
because he is or was a director against liability incurred in the proceeding if
(1) he conducted himself in good faith and (2) reasonably believed that, in the
case of conduct in his official capacity, that his conduct was in the best
interests of the corporation; in all other cases, that his conduct was at least
not opposed to the best interests of the corporation; and in case of any
criminal proceeding, that he had no reasonable cause to believe that his conduct
was unlawful. The Company's Amended and Restated Articles of Incorporation (the
"Restated Articles") exonerate the Company's directors from monetary liability
to the extent permitted by statute.
The Company's Restated Articles and Amended and Restated Bylaws (the
"Restated Bylaws") also provide that the Company shall 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 (including any action by or in the right of the Company), by
reason of the fact that such person is or was a director or officer of the
Company, or is or was serving at the request of the Company as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including reasonable 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 Company (and with respect to any criminal
action or proceeding, if such person had no reasonable cause to believe such
person's conduct was unlawful), to the maximum extent permitted by, and in the
manner provided by, the Georgia Business Corporation Code. In addition, the
Restated Bylaws provide that the Company will advance to its directors or
officers reasonable expenses of any such proceeding.
Notwithstanding any provisions of the Company's Restated Articles
and Amended Bylaws to the contrary, the Georgia Business Corporation Code
provides that a corporation may not indemnify a director in connection with a
proceeding by or in the right of the corporation, except for reasonable expenses
incurred in connection with the proceeding if it is determined that the director
met the relevant standard of conduct set forth above. A corporation may also not
indemnify a director in connection with any proceeding with respect to conduct
for which he was adjudged liable on the basis that personal benefit was
improperly received by him, whether or not involving action in his official
capacity.
The Company has purchased insurance with respect to, among other
things, any liabilities that may accrue under the statutory provisions referred
to above.
Item 7. Exemption From Registration Claimed.
No response to this item is required.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference in
this Registration Statement:
Exhibit
Number Description of Exhibit
4.1 Amended and Restated Articles of Incorporation of A.D.A.M.,
Inc. (incorporated herein by reference to A.D.A.M., Inc.'s
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999 (File No. 0-26962)).
4.2 Amended and Restated Bylaws of A.D.A.M., Inc. (incorporated
by reference to the Company's Registration Statement on Form
S-1, dated September 12, 1995, as amended (File No.
33-96864)).
4.3 A.D.A.M., Inc. 2002 Stock Incentive Plan (incorporated by
reference to Appendix A of A.D.A.M., Inc.'s Definitive Proxy
Statement filed on May 24, 2002).
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5.1 Opinion of Smith, Gambrell & Russell, LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Smith, Gambrell & Russell, LLP (included in
Exhibit 5.1).
24.1 Powers of Attorney (contained on the signature page hereof).
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% 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 clauses (1)(i) and (1) (ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses 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; 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.
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(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
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.
(h) 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 provisions of the Registrant's ByLaws, 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 of 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 Company
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 Atlanta, State of Georgia, on this 23nd day of March,
2004.
A.D.A.M., Inc.
By: /s/ Robert S. Cramer, Jr.
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Robert S. Cramer, Jr.
Chairman of the Board and Chief Executive Officer
By: /s/ Kevin S. Noland
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Kevin S. Noland
Chief Operating Office and Corporate Secretary
(acting principal financial and accounting officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kevin S. Noland his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
in his 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, including a Registration Statement filed under Rule 462(b)
of the Securities Act of 1933, as amended, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent 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 and to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent 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 below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Robert S. Cramer, Jr. Chairman of the Board and March 22, 2004
- -------------------------------- Chief Executive Officer
Robert S. Cramer, Jr.
Director
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Francis J. Tedesco, M.D.
/s/ Mark Kishel, M.D. Director February 13, 2004
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Mark Kishel, M.D
- -------------------------------- Director
Daniel S. Howe
/s/ John W. McClaugherty Director February 13, 2004
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John W. McClaugherty
Exhibit Index
Exhibit
Number Description of Exhibit
4.1 Amended and Restated Articles of Incorporation of A.D.A.M., Inc.
(incorporated herein by reference to A.D.A.M., Inc.'s Quarterly
Report on Form 10-Q for the quarter ended September 30, 1999
(File No. 0-26962)).
4.2 Amended and Restated Bylaws of A.D.A.M., Inc. (incorporated by
reference to Appendix A of the Company's Registration Statement
on Form S-1, dated September 12, 1995, as amended (File No.
33-96864)).
4.3 A.D.A.M., Inc. 2002 Stock Incentive Plan (incorporated by
reference to A.D.A.M., Inc.'s Definitive Proxy Statement filed on
May 24, 2002).
5.1 Opinion of Smith, Gambrell & Russell, LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Smith, Gambrell & Russell, LLP (included in Exhibit
5.1).
24.1 Powers of Attorney (contained on the signature page hereof).