-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Q8s5xz0jfU6vxavPEPeBKPoGUZkWWZTWtpElaMA7Sno+SPR+EMnyBIfdH0/UQE18 z0Sr1xA/Qgo9oGs4a70fYg== 0000950131-98-002517.txt : 19980413 0000950131-98-002517.hdr.sgml : 19980413 ACCESSION NUMBER: 0000950131-98-002517 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980410 EFFECTIVENESS DATE: 19980410 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: NUTRACEUTICAL INTERNATIONAL CORP CENTRAL INDEX KEY: 0001050007 STANDARD INDUSTRIAL CLASSIFICATION: MEDICINAL CHEMICALS & BOTANICAL PRODUCTS [2833] IRS NUMBER: 870515089 STATE OF INCORPORATION: DE FISCAL YEAR END: 0830 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-49887 FILM NUMBER: 98591545 BUSINESS ADDRESS: STREET 1: 1400 KEARNS BOULEVARD STREET 2: 2ND FLOOR CITY: PARK CITY STATE: UT ZIP: 84060 BUSINESS PHONE: 8016566000 MAIL ADDRESS: STREET 1: 1400 KEARNS BOULEVARD STREET 2: 2ND FLOOR CITY: PARK CITY STATE: UT ZIP: 84060 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on April 10, 1998 Registration No. 333-_____ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------- Form S-8 REGISTRATION STATEMENT Under the Securities Act of 1933 ---------------------- NUTRACEUTICAL INTERNATIONAL CORPORATION (Exact name of registrant as specified in its charter) ---------------------- Delaware 87-0515089 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1400 Kearns Boulevard, 2nd Floor 84060 Park City, Utah (Zip Code) (Address of Principal Executive Offices) 1995 STOCK OPTION PLAN 1998 STOCK INCENTIVE PLAN NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN (Full Title of the Plans) Stanley E. Soper, Esq. Vice President Legal Affairs Nutraceutical International Corporation 1400 Kearns Boulevard, 2nd Floor Park City, Utah 84060 (435) 655-6000 (Name, address including zip code, and telephone number, including area code, of Agent for Service) Copy to: ------- Mark B. Tresnowski, Esq. Kirkland & Ellis 200 East Randolph Drive Chicago, Illinois 60601 (312) 861-2000 CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------ Proposed maximum Proposed maximum Amount of Title of securities to be Amount to be offering price per aggregate offering registration registered registered share price fee - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, par value $0.01 per share............. 225,873 shares $ 5.6594(1) $ 1,278,305.60 $ 377.10 - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, par value $.01 per share.............. 1,050,000 shares $ 17.50(2) $ 18,375,000.00 $ 5,420.63 - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, par value $.01 per share.............. 150,000 shares $ 21.875(3) $ 3,281,250.00 $ 967.97 - ------------------------------------------------------------------------------------------------------------------------------------
/1/ Estimated pursuant to Rule 457(h), solely for purposes of calculating the amount of the registration fee, based upon the weighted average exercise price of $5.6594 relating to options granted under the Registrant's 1995 Stock Option Plan. /2/ Estimated pursuant to Rule 457(h), solely for purposes of calculating the amount of the registration fee, based upon the exercise price of $17.50 relating to options granted under the Registrant's 1998 Stock Incentive Plan. /3/ Estimated pursuant to Rule 457(c) and (h), solely for purposes of calculating the amount of the registration fee, based upon the average of the high and low prices reported on April 7, 1998, as reported on the Nasdaq National Market. ================================================================================ PART I INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS Item 1. Plan Information. The documents containing the information specified in Part I, Items 1 and 2, will be delivered in accordance with Rule 428(b)(1) of the Securities Act of 1933, as amended ("Securities Act"). Such documents are not required to be, and are not, filed with the Securities and Exchange Commission ("Commission") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. Item 2. Registrant Information and Employee Plan Annual Information. Upon written or oral request, any of the documents incorporated by reference in Item 3 of Part II of this Registration Statement (which documents are incorporated by reference in the Section 10(a) Prospectus), other documents required to be delivered to eligible employees pursuant to Rule 428(b) or additional information about the 1995 Stock Option Plan, the 1998 Stock Incentive Plan, or the Non- Employee Director Stock Option Plan (collectively, the "Plans") are available without charge by contacting: Stanley E. Soper Vice President, Legal Affairs Nutraceutical International Corporation 1400 Kearns Boulevard, 2nd Floor Park City, Utah 84060 (435) 655-6000 -2- PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference. The following documents, which have been filed by Nutraceutical International Corporation (the "Corporation") with the Commission, are incorporated in this Registration Statement by reference: (a) The Corporation's Prospectus, dated February 19, 1998, filed pursuant to Rule 424(b) of the Securities Act, which relates to the Corporation's Registration Statement on Form S-1 (Registration File No. 333-41909). (b) The description of the Corporation's Common Stock, par value $.01 per share (the "Common Stock") contained in Item 1 of the Corporation's Registration Statement on Form 8-A, filed with the Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on January 21, 1997. (c) All reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby 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 the filing of such reports and documents. All reports and other documents subsequently filed by the Corporation pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act ("Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of the 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 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. Item 5. Interests of Named Experts and Counsel. The validity of the Common Stock to be issued under the Plans will be passed upon for the Company by Kirkland & Ellis, Chicago, Illinois (a partnership which includes professional corporations). James L. Learner, a partner of Kirkland & Ellis, owns 17,125 shares of Common Stock. Item 6. Indemnification of Directors and Officers. Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL") permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any transaction from which the director derives an improper personal benefit, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) for improper payment of dividends or redemptions of shares or (iv) for any breach of a director's duty of loyalty to the company or its stockholders. Article X, Part A, of the Corporation's Amended and Restated Certificate of Incorporation (the "Restated Certificate") includes such a provision. The Corporation's Restated Certificate provides that each person who was or is made a party or is threatened to be made a party to or is otherwise involved (including involvement as a witness) in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding"), by reason of the fact that he or she is or was a Director or officer of the Corporation or, while a Director or officer of the Corporation, is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (an "indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as a Director or officer or in any other capacity while serving as a Director or officer, will be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights then permitted prior thereto), against -3- all expense, liability and loss (including attorneys' fees, judgment, fines, excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith and such indemnification will continue as to an indemnitee who has ceased to be a Director, officer, employee or agent and shall inure to the benefit of the indemnitee's heirs, executors and administrators under the Restated Certificate. This right of indemnification is a contractual right and includes the obligation of the Corporation to pay the expenses incurred in defending any such proceeding in advance of its final disposition (an "advance of expenses"); provided, however, that, if and to the extent that the DGCL requires, an advance of expenses incurred by indemnitee in his or her capacity as a Director of officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) will be made only upon delivery to the Corporation of an undertaking (an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it will ultimately be determined by final judicial decision from which there is no further right to appeal (a "final adjudication") that such indemnitee is not entitled to be indemnified for such expenses. The Corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the Corporation with the same or lesser scope and effect as the foregoing indemnification of Directors and officers. The Corporation has entered into indemnification agreements with its current Directors and executives officers substantially in the form previously filed with the Commission by the Corporation and anticipates entering into such agreements in the future with any new Director or executive officer. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. An Exhibit index is located at page 10. Number Description ------ ----------- 3.1 Form of Amended and Restated Certificate of Incorporation of the Corporation, incorporated by reference to Exhibit 3.1 of the Corporation's Registration Statement on Form S-1 (Registration File No. 333-41909). 3.2 Form of Bylaws of the Corporation, incorporated by reference to Exhibit 3.2 of the Corporation's Registration Statement on Form S-1 (Registration File No. 333-41909). 4.1 Form of certificate representing shares of Common Stock, $0.01 par value per share, incorporated by reference to Exhibit 4.1 of the Corporation's Registration Statement on Form S-1 (Registration File No. 333-41909). 5.1 Opinion of Kirkland & Ellis with respect to the legality of the shares of the Common Stock being registered hereby. 23.1 Consent of Price Waterhouse LLP. 23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1). 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 (the "Securities Act"); (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or 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; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement, (2) that, for the purpose of determining any liability under the Securities Act, 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 -4- 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, 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 the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, 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 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 Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. -5- SIGNATURES ---------- Pursuant to the requirements of the Securities Act of 1933, the Corporation 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 Park City, State of Utah, on March 31, 1998. NUTRACEUTICAL INTERNATIONAL CORPORATION By /s/ Frank W. Gay II -------------------------------------- Frank W. Gay II, Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on March 31,1998. Signature Title - --------- ----- /s/ Frank W. Gay II Director, Chairman of the - ------------------------------- Board and Chief Frank W. Gay II Executive Officer /s/ Bruce R. Hough Director and President - ------------------------------- Bruce R. Hough /s/ Jeffrey A. Hinrichs Director, Chief Operating - ------------------------------- Officer and Executive Jeffrey A. Hinrichs Vice President /s/ Leslie M. Brown, Jr. Senior Vice President, - ------------------------------- Finance and Chief Leslie M. Brown, Jr. Financial Officer /s/ Robert C. Gay Director - ------------------------------- Robert C. Gay /s/ Geoffrey S. Rehnert Director - ------------------------------- Geoffrey S. Rehnert /s/ Matthew S. Levin Director - ------------------------------- Matthew S. Levin -6- EXHIBIT INDEX Exhibit Number Description 3.1 Form of Amended and Restated Certificate of Incorporation of the Corporation, incorporated by reference to Exhibit 3.1 of the Corporation's Registration Statement on Form S-1 (Registration File No. 333-41909). 3.2 Form of Bylaws of the Corporation, incorporated by reference to Exhibit 3.2 of the Corporation's Registration Statement on Form S -1 (Registration File No. 333-41909). 4.1 Form of certificate representing shares of Common Stock, $0.01 par value per share, incorporated by reference to Exhibit 4.1 of the Corporation's Registration Statement on Form S-1 (Registration File No. 333-41909). 5.1 Opinion of Kirkland & Ellis with respect to the legality of the Shares of the Common Stock being registered hereby. 23.1 Consent of Price Waterhouse LLP. 23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1). -7- EX-5.1 2 OPINION OF KIRKLAND & ELLIS KIRKLAND & ELLIS PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS 200 East Randolph Drive Chicago, Illinois 60601 Exhibit 5.1 To Call Writer Direct: 312 861-2000 Facsimile: 312 861-2000 312 861-2200 April 9, 1998 Nutraceutical International Corporation 1400 Kearns Boulevard, 2nd Floor Park City, UT 84060 Re: Nutraceutical International Corporation Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: We are acting as special counsel to Nutraceutical International Corporation, a Delaware corporation (the "Company"), in connection with the proposed registration by the Company of 1,425,873 shares (the "Shares") of its Common Stock, par value $.01 per share (the "Common Stock"), pursuant to a Registration Statement on Form S-8, filed with the Securities and Exchange Commission (the "Commission") on the date hereof under the Securities Act of 1933, as amended (the "Act") (such Registration Statement, as amended or supplemented, is hereinafter referred to as the "Registration Statement"). The Shares are to be issued by the Company to certain employees of the Company and its subsidiaries pursuant to the Company's 1995 Stock Option Plan and 1998 Stock Incentive Plan or to non-employee directors of the Company pursuant to the Non- Employee Director Stock Option Plan (collectively, the "Plans"). In that connection, we have examined such corporate proceedings, documents, records and matters of law as we have deemed necessary to enable us to render this opinion. For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto other than the Company and the due authorization, execution and delivery of all documents by the parties thereto other than the Company. As to any facts material to the opinions expressed herein, we have relied upon the statements and representations of officers and other representations of the Company and others. Denver London Los Angeles New York Washington D.C. KIRKLAND & ELLIS April 9, 1998 Page 2 Our opinion expressed below is subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of (i) any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other similar law affecting the enforcement of creditors' rights generally; (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law); (iii) public policy considerations which may limit the rights of parties to obtain certain remedies; and (iv) any laws except the internal laws of the State of Illinois, the General Corporation law of the State of Delaware and the federal law of the United States of America. Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we hereby advise you that in our opinion: (1) The Plans have been duly adopted by the Board of Directors of the Company. (2) The Shares are duly authorized and validly reserved for issuance pursuant to the Plans and, when: (i) the Registration Statement becomes effective under the Act; (ii) the Shares are issued in accordance with the terms of the Plans; (iii) the recipient provides the full consideration for such Shares as required by the terms of the Plans (assuming in each case the consideration received by the Company is at least equal to $0.01 per share); and (iv) certificates representing the Shares have been duly executed and delivered on behalf of the Company and duly countersigned by the Company's transfer agent/registrar, the Shares will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or "Blue Sky" laws of the various states to the issuance and sale of the Shares. This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion should the present laws of the States of Illinois or Delaware or the federal law of the United States be changed by legislative action, judicial decision or otherwise. KIRKLAND & ELLIS April 9, 1998 Page 3 This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose. Very truly yours, /s/ Kirkland & Ellis KIRKLAND & ELLIS EX-23.1 3 CONSENT OF PRICE WATERHOUSE LLP. EXHIBIT 23.1 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated October 21, 1997 appearing on page F-2 of Nutraceutical International Corporation's Prospectus dated February 19, 1998, constituting part of the Registration Statement on Form S-1 (No. 333-41909). /s/ Price Waterhouse LLP PRICE WATERHOUSE LLP Salt Lake City, Utah April 8, 1998 -----END PRIVACY-ENHANCED MESSAGE-----