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As filed with the Securities and Exchange Commission on January 7, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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KING PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
TENNESSEE 54-1684963
(State of Incorporation) (I.R.S. Employer Identification No.)
501 Fifth Street
Bristol, Tennessee 37620
(Address of principal executive offices)
1997 INCENTIVE AND NON-QUALIFIED
STOCK OPTION PLAN FOR EMPLOYEES
(Full Title of the Plan)
John M. Gregory
501 Fifth Street
Bristol, Tennessee 37620
(423) 989-8000
(Name, address and telephone number of agent for service)
(with copies to:)
Linda M. Crouch
Baker, Donelson, Bearman & Caldwell
207 Mockingbird Lane, 3rd Floor
Johnson City, Tennessee 37604
CALCULATION OF REGISTRATION FEE
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<CAPTION>
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED OFFERING PRICE PER SHARE(1) AGGREGATE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock,
no par value 800,000 $24.94 $19,950,000 $5,546
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</TABLE>
(1) The amount of the registration fee is computed in accordance with Rule
457(c) and (h) and is based upon the average of the high and low price of the
Common Stock on January 4, 1998, as reported by the Nasdaq Stock Market.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission are
incorporated herein by reference:
1. The Registrant's Prospectus on Form 424(b)(3), filed June 26, 1998.
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998.
4. The description of the Common Stock contained in the Company's
Registration Statement on Form S-1, Registration Number 333-38753
filed on October 24, 1997 with the Commission pursuant to the
Securities Act of 1933, as amended.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act, 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 herein and to be a part hereof from the date of filing
of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
No response to this item is required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No response to this item is required.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Tennessee Business Corporation Act (the "Act") provides financial
protection by the corporation for its directors, officers and employees against
liabilities and expenses (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) incurred by them in
proceedings arising out of their position with the corporation.
Under the Act's permissive indemnification provisions, a corporation
has the authority to indemnify a director against liability incurred in a
proceeding if the director conducted himself in good faith and in a manner he
reasonably believed to be in the corporation's best interests. In the case of
criminal proceedings, the director must have no reasonable cause to believe his
conduct was unlawful. Permissive indemnification is allowed even if the director
is not wholly successful in the proceeding. Indemnification is, however,
prohibited in derivative actions in which the director is adjudged liable and in
situations in which the director is found liable on the basis that a personal
benefit was improperly received by him. The Act also provides that unless
limited by its charter, a corporation must indemnify a director who is wholly
successful on the merits or otherwise in the defense of a proceeding against
reasonable expenses incurred in connection with the proceeding. In addition to
providing indemnification for liabilities for which the director is held liable,
the Act also provides that a corporation may advance expenses incurred by a
director if the director can furnish a written statement of his good faith
belief that he acted in an appropriate manner and undertakes to repay the amount
advanced if it is ultimately determined that he was not entitled to
indemnification.
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The Act contains provisions extending indemnification to officers,
employees and agents of the corporation. The Act states that a corporation may
also indemnify and advance expenses to an officer, employee or agent who is not
a director to the extent consistent with public policy, that may be provided by
its charter, bylaws, general or specific action of its board of directors or
contract.
The Company's Charter and Bylaws provide for indemnification of
directors, officers, employees and agents to the fullest extent allowed for by
Tennessee law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
No response to this item is required.
ITEM 8. EXHIBITS
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<CAPTION>
Exhibit Number Description
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<S> <C>
4.1 Second Amended and Restated Charter of King Pharmaceuticals, Inc.
(incorporated herein by reference from Exhibit 3.1(a) of the Company's
Registration Statement on Form S-1, Registration Number 333-38753 filed
on October 24, 1997 with the Commission pursuant to the Securities Act
of 1933, as amended).
4.2 Amended and Restated Bylaws of King Pharmaceuticals, Inc. (incorporated
herein by reference from Exhibit 3.2(a) of the Company's Registration
Statement on Form S-1, Registration Number 333-38753 filed on October
24, 1997 with the Commission pursuant to the Securities Act of 1933, as
amended).
4.3 Form of Rights Agreement by and between King Pharmaceuticals, Inc. and
Union Planters National Bank (incorporated herein by reference from
Exhibit 4.2 of the Company's Registration Statement on Form S-1,
Registration Number 333-38753 filed on October 24, 1997 with the
Commission pursuant to the Securities Act of 1933, as amended).
23.1 Consent of Baker, Donelson, Bearman & Caldwell.
23.2 Consent of PricewaterhouseCoopers LLP.
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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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "1933 Act"), each such posteffective 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.
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(b) The undersigned registrant hereby undertakes that, for the purposes
of determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Act) 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 1933
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 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirement 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 the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Bristol, State of Tennessee, on January 5, 1999.
KING PHARMACEUTICALS, INC.
By: /s/ John M. Gregory
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John M. Gregory
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Gregory, 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
capacities, to sign any and 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 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 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 agent, or his 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.
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ John M. Gregory Chairman of the Board and Chief January 5, 1999
- ------------------------ Executive Officer
John M. Gregory
/s/ Brian G. Shrader Chief Financial Officer January 5, 1999
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Brian G. Shrader
Vice Chairman of the Board and January , 1999
- ------------------------ Director
Joseph R. Gregory
/s/ Jefferson J. Gregory President, Chief Operating Officer, January 5, 1999
- ------------------------ and Director
Jefferson J. Gregory
/s/ Ernest C. Bourne Director January 5, 1999
- ------------------------
Ernest C. Bourne
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Lois A. Clarke Director January 5, 1999
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Lois A. Clarke
/s/ D. Gregory Rooker Director January 5, 1999
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D. Gregory Rooker
/s/ Ted G. Wood Director January 5, 1999
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Ted G. Wood
</TABLE>
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EXHIBIT 23.1
CONSENT OF BAKER, DONELSON, BEARMAN & CALDWELL
January 5, 1999
King Pharmaceuticals, Inc.
501 Fifth Street
Bristol, Tennessee 37620
RE: 1997 Incentive and Nonqualified Stock Option Plan for Employees
Gentlemen:
We have acted as securities counsel for King Pharmaceuticals, Inc., a
Tennessee corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-8 (the "Registration Statement"), pursuant to
the Securities Act of 1933, as amended, relating to the Company's 1997 Incentive
and Nonqualified Stock Option Plan for Employees of King Pharmaceuticals, Inc.
(the "Plan"). This opinion is being furnished in response to Item 601 of
Regulation S-K and the instructions to Form S-8.
We are familiar with the proceedings to date with respect to the
proposed offering and have examined such records, documents and matters of law
and satisfied ourselves as to such matters of fact as we have considered
relevant for purposes of this opinion.
On the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and existing under the
laws of the State of Tennessee.
2. The common stock, when issued in accordance with the Plan, will be
validly issued, fully paid, and nonassessable.
The foregoing opinion is limited to the federal laws of the United
States and the laws of the State of Tennessee, and we are expressing no opinion
as to the effect of the laws of any other jurisdiction.
In rendering the foregoing opinion, we have relied to the extent we
deem such reliance appropriate as to certain matters on statements,
representations and other information obtained from public officials, officers
of the Company and other sources believed by us to be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and to the reference to us in the Prospectus that is a
part of the Registration Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
BAKER, DONELSON, BEARMAN &
CALDWELL, a Professional Corporation
By: Linda M. Crouch
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EXHIBIT 23.2
CONSENT OF PRICEWATERHOUSECOOPERS LLP
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of our audits of the consolidated financial statements of King
Pharmaceuticals, Inc. as of December 31, 1997 and 1996 and for the years ended
December 31, 1997, 1996 and 1995, which are included on Form S-1 (File No.
333-38753), pertaining to the 1997 Incentive and Nonqualified Stock Option Plan
for Employees of King Pharmaceuticals, Inc., of our report dated April 2, 1998.
PricewaterhouseCoopers LLP
Greensboro, North Carolina
January 5, 1999
