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As filed with the Securities and Exchange Commission on June 2, 1999
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. 1999 STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
(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)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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 100,000 shares $36.44 $3,644,000 $1,074.98
value per share
</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 June 1, 1999 as reported on
the Nasdaq National Market System.
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PART I
------
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. 1999
Stock Plan for Non-Employee Directors as specified by Rule 428(b)(1) promulgated
under the Securities Act of 1933, as amended.
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PART II
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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 and on Form
10-K/A for the fiscal year ended November 30, 1998;
(b) The registrant's Quarterly Report on Form 10-Q for the
quarter ended February 28, 1999;
(c) The registrant's reports on Form 8-K filed December 28, 1998,
April 29, 1999, May 13, 1999 and the registrant's report on Form 8-K/A filed on
February 26, 1999;
(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, 1998; 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.
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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, as amended, 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
2
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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.
3
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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 June 2, 1999.
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: June 2, 1999 /s/ Zan Guerry
--------------------------------------
Zan Guerry, Chairman of the Board
and Chief Executive Officer, Director
(Principal Executive Officer)
Date: June 2, 1999 /s/ A. Alexander Taylor, II
--------------------------------------
A. Alexander Taylor, II, President and
Chief Operating Officer, Director
4
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Date: June 2, 1999 /s/ Stephen M. Powell
--------------------------------------
Stephen M. Powell, Controller
(Principal Accounting Officer)
Date: June 2, 1999 /s/ Louis H. Barnett
--------------------------------------
Louis H. Barnett, Director
Date: June 2, 1999 /s/ Richard E. Cheney
--------------------------------------
Richard E. Cheney, Director
Date: June 2, 1999 /s/ Scott L. Probasco, Jr.
--------------------------------------
Scott L. Probasco, Jr., Director
Date: June 2, 1999 /s/ Samuel E. Allen
--------------------------------------
Samuel E. Allen, Director
Date: June 2, 1999 /s/ Robert E. Bosworth
--------------------------------------
Robert E. Bosworth, Director
Date: June 2, 1999 /s/ Philip H. Sanford
--------------------------------------
Philip H. Sanford
5
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EXHIBIT INDEX
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No. Description
- ---- ----------------------------------------------------------------
*4.1 Amended and Restated Charter of Chattem, Inc.
4.2 Articles of Amendment to the Restated Charter of Chattem, Inc.
*4.3 Amended and Restated By-laws of Chattem, Inc.
5 Opinion of Miller & Martin LLP
24.1 Consent of Miller & Martin LLP (included in Exhibit 5)
24.2 Consent of Arthur Andersen LLP
- -----------
* Incorporated herein by reference to the registrant's Annual Report on
Form 10-K for the period ended November 30, 1992.
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Exhibit 4.2
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ARTICLES OF AMENDMENT TO THE RESTATED CHARTER
---------------------------------------------
OF
--
CHATTEM, INC.
-------------
Pursuant to the provisions of Section 48-20-106 of the Tennessee
Business Corporation Act, the undersigned corporation adopts the following
Articles of Amendment to its Restated Charter:
1. The name of the corporation is Chattem, Inc.
2. The text of the amendment adopted is:
Article 2 of the Restated Charter is amended to provide in its entirety
as follows:
2. The maximum number of shares which the corporation is authorized to
issue is fifty-one million (51,000,000) consisting of fifty million
(50,000,000) common shares without par value and one million
(1,000,000) preferred shares, which preferred shares shall be
issuable in one or more series.
3. The amendment was duly adopted on January 26, 1999 by the Board of
Directors of the corporation.
4. The amendment was duly approved by the shareholders of the corporation
at the annual meeting of shareholders held April 14, 1999.
Dated this 16th day of April, 1999.
CHATTEM, INC.
By: /s/ A. Alexander Taylor II
---------------------------------
A. Alexander Taylor II,
President
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Exhibit 5
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June 2, 1999
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) 100,000
shares of the common stock, no par value (the "Common Stock") of Chattem, Inc.
(the "Company") and (ii) the 1999 Stock Plan for Non-Employee Directors (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
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Exhibit 24.2
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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
June 2, 1999
Chattanooga, Tennessee
