Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
Registration Statement
Under
The Securities Act of 1933
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PACIFICHEALTH LABORATORIES, INC.
(Exact name of issuer as specified in its charter)
Delaware 22-3367588
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1480 Route 9 North, Suite 204
Woodbridge, New Jersey 07095
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Address of principal executive offices) (Zip Code)
1995 Incentive Stock Option Plan
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(full title of plan)
Jonathan D. Rahn
Executive Vice President and Chief Financial Officer
1480 Route 9 North, Suite 204
Woodbridge, NJ 07095
(Name and address of agent for service)
(732) 636-6141
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Title of Proposed maximum Proposed maximum
Securities to Amount to be offering price aggregate Amount of
be registered registered (1) per share (2) offering price (2) registration fee (2)
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<S> <C> <C> <C> <C>
Common Stock 1,500,000
$.0025 par value Shares $5.00 $3,888,307 $1,027.00
================================================================================================================
</TABLE>
(1) The registration statement also covers an indeterminate number of
additional shares that may become issuable under the registrant's 1995
Incentive Stock Option Plan (the "Plan") pursuant to anti-dilution and
adjustment provisions thereof as a result of stock splits, stock dividends
or similar transactions.
(2) Calculated in accordance with Rule 457 on the basis of (a) the exercise
price of options to purchase 1,498,200 shares which are outstanding under
the Plan, and (b) the average of the high and low sales prices of the
registrant's common stock reported in the consolidated reporting system on
April 20, 2000, with respect to 1,800 shares reserved for issuance on the
exercise of options which may be but have not yet been granted under the
Plan.
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INTRODUCTORY STATEMENT
This Registration Statement on Form S-8 is being filed to register
1,500,000 shares of Common Stock, par value $.0025 per share (the "Common
Stock"), of PacificHealth Laboratories, Inc. (the "Company"), for issuance upon
the exercise of options granted (1,498,200 shares) or which may be granted (an
additional 1,800 shares) under the Company's 1995 Incentive Stock Option Plan.
Pursuant to Rule 428(b)(1), promulgated under the Securities Act of 1933,
as amended (the "Securities Act"), the information required by Part I of Form
S-8 will be sent or given to option holders, as specified in such Rule, in the
form of a prospectus that meets the requirements of Section 10(a) of the
Securities Act. In accordance with the note which precedes the instructions to
Part I of Form S-8, the documents containing the information specified in Part I
of Form S-8 have not been filed with the Securities and Exchange Commission
either as part of this registration statement or as a prospectus or prospectus
supplement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed with the Securities and Exchange
Commission by PacificHealth Laboratories, Inc. (the "Company") under the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference: (1) the Company's Annual Report on Form 10-KSB
for the year ended December 31, 1999; and (2) the description of the Company's
Common Stock, par value $.0025 per share, set forth in the Company's
Registration Statement on Form 8-A filed under Section 12 of the Exchange Act on
December 12, 1997, and any amendment or report hereafter filed for the purpose
of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this registration statement and
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 a part hereof from the date of filing of such
documents. Any statement contained in a document all or a portion of which is
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.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
corporation to indemnify any person who was or is a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation), by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
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corporation as a director, officer, employee or agent of another corporation or
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, does not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interest of the corporation, and with respect
to any criminal proceeding, he had reasonable cause to believe that his conduct
was unlawful.
Section 145 of the DGCL also empowers a corporation to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted in
any of the capacities set forth above, against expenses (including amounts paid
in settlement and attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
under similar standards, except that no indemnification may be made in respect
of any claim, issue or matter as to which such person shall have been adjudged
by a court of competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable to the corporation or for amounts paid in settlement to the
corporation unless, and only to the extent that, the Delaware Court of Chancery
or other court in which such action or suit was brought shall determine upon
application that in view of all the circumstances of the case, that despite the
adjudication of liability such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that, to the extent that a
director or officer of a corporation has been successful on the merits or
otherwise, in the defense of any action, suit or proceeding referred to above or
in the defense of any claim, issue or matter therein, he must be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith. The right to indemnification under Section 145 is
in addition to any other rights to which the indemnified party may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise.
Article NINTH of the Company's Certificate of Incorporation, as amended,
provides that:
The Corporation shall, to the fullest extent permitted by the provisions of
Section 145 of the General Corporation Law of the State of Delaware, as the
same may be amended and supplemented, indemnify any and all persons whom it
shall have power to indemnify under said section from and against any and
all of the expenses, liabilities or other matters referred to in or covered
by said section, and the indemnification provided for herein shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any Bylaw,
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agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Article V of the Company's Amended and Restated Bylaws further implements
the provisions of Section 145 of the DGCL in substantially the same terms as
Article Ninth of the Certificate of Incorporation and, in addition, requires the
Company to advance expenses reasonably incurred by persons entitled to
indemnification under Article Ninth and Article V in advance of the final
disposition of the matter giving rise to the right to indemnification.
As permitted by Section 102(7) of the DGCL, the Company's Certificate of
Incorporation also provides that:
The personal liability of the directors of the corporation is hereby
eliminated to the fullest extent permitted by the provisions of paragraph
(7) of subsection (b) of Section 102 of the General Corporation Law of the
State of Delaware, as the same may be amended and supplemented.
Section 102(7) currently provides that any such provision of a corporation's
certificate of incorporation may not eliminate or limit the liability of a
director or officer for (i) any breach of the director's duty of loyalty to the
corporation or its stockholders; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii) under
Section 174 of the DGCL relating to unlawful dividends, or (iv) for any
transaction from which the director derived an improper personal benefit.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation of the Company, as amended (incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on Form
SB-2, Registration No. 333-36379).
4.2 Amended and Restated Bylaws of the Company (incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on Form SB-2,
Registration No. 333-36379).
5 Opinion of Eckert Seamans Cherin & Mellott, LLC (including consent).
23.1 Consent of Eckert Seamans Cherin & Mellott, LLC (included in its opinion
filed herewith as Exhibit 5).
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23.2 Consent of Larson, Allen, Weishair & Co. LLP.
99 Incentive Stock Option Plan (incorporated by reference to Exhibit 10.1 to
the Company's Registration Statement on Form SB-2, Registration No.
333-36379).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes to:
(1) file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any
information on the plan of distribution;
(2) for the purpose of determining liability under the Securities Act,
treat each post-effective amendment a new registration of the securities
offered, and the offering of the securities at that time shall be deemed to be
the initial bona fide offering thereof; and
(3) file a post-effective amendment to remove from registration any of
the securities that remain unsold at the end 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 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 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Woodbridge, New Jersey, on April 20, 2000.
PACIFICHEALTH LABORATORIES, INC.
By: /s/ Robert Portman
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Robert Portman,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Robert Portman President and Chief April 20, 2000
- ------------------------------------ Executive Officer and
ROBERT PORTMAN President (Principal Executive
Officer) and Director
/s/ Jonathan D. Rahn Executive Vice President and April 20, 2000
- ------------------------------------ Chief Financial Officer (Principal
JONATHAN D. RAHN Financial and Accounting Officer)
And Director
/s/ David I. Portman Director April 20, 2000
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DAVID I. PORTMAN
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PACIFICHEALTH LABORATORIES, INC.
EXHIBIT INDEX
4.1 Certificate of Incorporation of the Company, as amended (incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on Form
SB-2, Registration No. 333-36379).
4.2 Amended and Restated Bylaws of the Company (incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement on Form SB-2,
Registration No. 333-36379).
5 Opinion of Eckert Seamans Cherin & Mellott, LLC (including consent).
23.1 Consent of Eckert Seamans Cherin & Mellott, LLC (included in its opinion
filed herewith as Exhibit 5).
23.2 Consent of Larson, Allen, Weishair & Co. LLP.
99 Incentive Stock Option Plan (incorporated by reference to Exhibit 10.1 to
the Company's Registration Statement on Form SB-2, Registration No.
333-36379).
Exhibit 5
April 24, 2000
PacificHealth Laboratories, Inc.
1480 Route 9 North, Suite 204
Woodbridge, NJ 07095
RE: Registration Statement on Form S-8
Gentlemen/Ladies:
We have acted as counsel to PacificHealth Laboratories, Inc. (the "Company") in
connection with the preparation and filing of a Registration Statement on Form
S-8 under the Securities Act of 1933 (the "Registration Statement") relating to
an offering of up to 1,500.000 shares of the Company's Common Stock of the par
value $.0025 (the "Shares") upon the exercise of options granted under the
Company's 1995 Incentive Stock Option Plan (the "Plan")
We are familiar with the Registration Statement and the Plan. We have reviewed
the Company's Certificate of Incorporation and By-laws, each as amended to date.
We also have examined such public and private corporate documents, certificates,
instruments and corporate records, and such questions of law, as we have deemed
necessary for the purpose of expressing an opinion on the matters set forth
below. In all examinations of documents we have assumed the genuineness of all
signatures appearing on such documents, and the genuineness and authenticity of
all copies of the original document.
On the basis of the foregoing, we are of the opinion that the Shares, when
issued in accordance with the plan as described in the Registration Statement,
will be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement.
Very truly yours,
ECKERT SEAMANS CHERIN & MELLOTT, LLC
By: /s/ Joseph Chicco
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Joseph Chicco
Exhibit 23.2
ACCOUNTANT'S CONSENT
To the Stockholders and Board of Directors of
PacificHealth Laboratories, Inc.
We consent to the use of our Independent Auditor's Report dated February 8, 2000
and accompanying financial statements of PacificHealth Laboratories, Inc. for
the year ended December 31, 1999. The Report will be included in the Form S-8
which is to be filed with the Securities and Exchange Commission for
PacificHealth Laboratories, Inc.
/s/ LARSON, ALLEN, WEISHAIR & CO., LLP
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LARSON, ALLEN, WEISHAIR & CO., LLP
Certified Public Accountants
Blue Bell, Pennsylvania
April 19, 2000
