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As filed with the Securities and Exchange Commission on August 12, 1998
Registration No. 333-_____
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
CHATTEM, INC.
(Exact name of registrant as specified in its charter)
TENNESSEE 62-0156300
(State of incorporation) (I.R.S. Employer Identification No.)
-----------------------
1715 WEST 38TH STREET, CHATTANOOGA, TENNESSEE 37409
(Address of principal executive offices, including zip code)
CHATTEM, INC. 1998 NON-STATUTORY STOCK OPTION PLAN
(Full title of the plan)
------------------------
HUGH F. SHARBER, ESQ.
MILLER & MARTIN
1000 VOLUNTEER BUILDING
CHATTANOOGA, TENNESSEE 37402
(423) 756-6600
(Name, address and telephone number, including zip code,
of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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- ----------------------------------------------------------------------------------------------------------------------------------
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered (1) Per Share (2) Offering Price (2) Fee (2)
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, no par 700,000 shares $21.27 $14,889,000 $4,392.25
value per share
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- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The registration statement also includes an indeterminable number of
additional shares that may become issuable as a result of
terminated, expired or surrendered options for Common Stock, or
pursuant to the antidilution adjustment provision of the plan.
(2) Estimated solely for purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933 on the basis
of the average of the high and low prices of the common stock on
August 5, 1998 as reported on the Nasdaq National Market System.
PART I
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INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
----------------------------------------------------
Pursuant to Part I of Form S-8, the information required by Items 1
and 2 of Form S-8 are not filed as a part of this Registration Statement.
This information will be sent or given to participants in the Chattem, Inc.
1998 Non-Statutory Stock Option Plan as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
----------------------------------------
The following documents previously filed by Chattem, Inc. with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The registrant's Annual Report on Form 10-K for the fiscal
year ended November 30, 1997;
(b) The registrant's Quarterly Report on Form 10-Q for the
quarters ended February 28, 1998 and May 31, 1998;
(c) The registrant's reports on Form 8-K filed (i) February 25,
1998, (ii) March 10, 1998, (iii) April 8, 1998 and (iv) May 28, 1998 and the
registrant's report on Form 8-K/A filed on May 29, 1998;
(d) All other reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 since November 30,
1997; and
(e) The description of the common stock included in the
registrant's Registration Statement on Form 8-A, as amended by Amendment No.
1 on Form 8 dated February 23, 1988.
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the completion or termination of this offering of shares of common
stock, shall be deemed to be incorporated by reference in the registration
statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
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 such 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.
3
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
---------------------------------------
The legality of the shares of Common Stock issuable under the Plan
has been passed upon for the Registrant by the law firm of Miller & Martin
LLP. Hugh F. Sharber is a partner of Miller & Martin LLP and is also the
Secretary of the Registrant.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
------------------------------------------
The registrant's Amended and Restated Charter provides for the
indemnification of persons involved in actions, suits or proceedings by
reason of the fact that they are or have been a director, officer or employee
of the registrant (or were serving at the request of the registrant as a
director, officer, employee or agent of another entity) to the fullest extent
permitted by the Tennessee Business Corporation Act (the "TBCA") against all
expense, liability or loss.
Indemnification under the registrant's Amended and Restated Charter
may include payment of expenses in advance of the final disposition of a
proceeding and will automatically expand if the indemnification accorded the
registrant's directors, officers and employees is extended by any amendment
to the TBCA. The registrant's Amended and Restated Charter also permits the
registrant, by action of its Board of Directors, to indemnify the
registrant's agents with the same scope and effect as the above-described
indemnification of officers, directors and employees.
For claims which are not otherwise covered by the indemnification
provisions of the registrant's Amended and Restated Charter, the registrant's
Amended and Restated By-Laws provide that the registrant's officers and
directors shall be indemnified to the maximum extent permitted by law.
The registrant currently maintains directors' and officers'
liability insurance.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
------------------------------------
Not applicable.
Item 8. EXHIBITS.
---------
The exhibits to the registration statement are listed in the Exhibit
Index included elsewhere herein.
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
4
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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, 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 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 (the "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 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 connected 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.
5
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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 Chattanooga, State of Tennessee, on
July 27, 1998.
CHATTEM, INC.
By: /s/ Zan Guerry
---------------------------------
Zan Guerry, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
-----------------
We, the undersigned officers and directors of Chattem, Inc., hereby
severally constitute and appoint Zan Guerry and A. Alexander Taylor, II, and
each of them singly, our true and lawful attorneys with full power to them,
and each of them singly, to sign for us and in our names, in the capacities
indicated below, the Registration Statement filed herewith and any amendments
to such Registration Statement, and generally to do all such things in our
name and behalf in our capacities as officers and directors to enable
Chattem, Inc. to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements of the Securities Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
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.
Date: July 27, 1998 /s/ Zan Guerry
-----------------------------------
Zan Guerry, Chairman of the Board
and Chief Executive Officer, Director
(Principal Executive Officer)
Date: July 27, 1998 /s/ A. Alexander Taylor, II
-----------------------------------
A. Alexander Taylor, II, President and
Chief Operating Officer, Director
6
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Date: July 27, 1998 /s/ Stephen M. Powell
-----------------------------------
Stephen M. Powell, Controller
(Principal Accounting Officer)
Date: July 27, 1998 /s/ Louis H. Barnett
-----------------------------------
Louis H. Barnett, Director
Date: July 27, 1998 /s/ Richard E. Cheney
-----------------------------------
Richard E. Cheney, Director
Date: July 27, 1998 /s/ Scott L. Probasco, Jr.
-----------------------------------
Scott L. Probasco, Jr., Director
Date: July 27, 1998 /s/ Samuel E. Allen
-----------------------------------
Samuel E. Allen, Director
Date: July 27, 1998 /s/ Robert E. Bosworth
-----------------------------------
Robert E. Bosworth, Director
7
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EXHIBIT INDEX
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<TABLE>
<CAPTION>
NO. DESCRIPTION
- --- -----------
<S> <C>
4.1 Amended and Restated Charter of Chattem, Inc.
(2)
4.2 Amended and Restated By-laws of Chattem, Inc.
(2)
5 Opinion of Miller & Martin LLP
24.1 Consent of Miller & Martin LLP (included in
Exhibit 5)
24.2 Consent of Arthur Andersen LLP
</TABLE>
- --------------------
(1) The page numbers where exhibits (other than those incorporated
by reference) can be found are indicated only on the manually signed
registration statement.
(2) Incorporated herein by reference to the registrant's Annual
Report on Form 10-K for the period ended November 30, 1992.
8
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Exhibit 5
WRITER'S DIRECT NUMBER
423/785-8212
HUGH F. SHARBER E-MAIL ADDRESS:
CHATTANOOGA OFFICE [email protected]
July 29, 1998
Chattem, Inc.
1715 West 38th Street
Chattanooga, TN 37409
Gentlemen:
This opinion is furnished in connection with the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
under the Securities Act of 1933, as amended (the "Act") with respect to (i)
700,000 shares of the common stock, no par value (the "Common Stock") of
Chattem, Inc. (the "Company") and (ii) the Non-Statutory Stock Option Plan -
1998 (the "Plan").
In rendering this opinion, we have conducted such
investigation, have reviewed such matters of law, and have examined such
corporate books, records and other documents (including the Registration
Statement) as we have deemed necessary or relevant to this opinion.
Based on the foregoing, we are of the opinion that the
Common Stock which may be issued in accordance with the Plan and the
Registration Statement will, when issued, be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
MILLER & MARTIN LLP
By: /s/ Hugh F. Sharber
----------------------------
Hugh F. Sharber
<PAGE>
EXHIBIT 24.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm) included in or made a part of
this registration statement.
ARTHUR ANDERSEN LLP
August 7, 1998
Chattanooga, Tennessee
