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As filed with the Securities and Exchange Commission on April 10, 1998
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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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)
NUTRACEUTICAL INTERNATIONAL CORPORATION EMPLOYEE STOCK DISCOUNT PURCHASE PLAN
(Full Title of the Plan)
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
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
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 750,000 shares $21.875 (1) $16,406,250 $4,839.84
Interests in the Employee
Stock Discount Purchase (2) (2) (2) (3)
Plan
</TABLE>
/(1)/ Estimated pursuant to Rule 457(c) and (h), solely for purposes of
calculating amount of registration fee, based upon the average of the
high and low prices reported on April 7, 1998, as reported on the Nasdaq
National Market.
/(2)/ Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
/(3)/ Pursuant to Rule 457(h)(2) under the Securities Act of 1933, no separate
registration fee is required with respect to the plan interests being
registered hereby.
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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
Nutraceutical International Corporation Employee Stock Discount
Purchase Plan (the "Plan") 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
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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") or the Plan 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 and
the Plan 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 Plan will be passed upon for the Corporation 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
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<PAGE>
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
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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
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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.
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SIGNATURES
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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 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
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Pursuant to the requirements of the Securities Act, the Nutraceutical
International Corporation Employee Stock Discount Purchase Plan 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 EMPLOYEE STOCK
DISCOUNT PURCHASE PLAN
By: /s/ Clyde Robins
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Clyde Robins, Vice President of Human Resources
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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).
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KIRKLAND & ELLIS
PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS
200 East Randolph Drive Exhibit 5.1
Chicago, Illinois 60601
To Call Writer Direct: 312 861-2000 Facsimile:
312 861-2100 312 861-2200
April 9, 1998
Nutraceutical International Corporation
1400 Kearns Boulevard, 2nd Floor
Park City, UT 84060
Re: Nutraceutical Internatonal 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 75,000 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 Nutraceutical International Corporation
Employee Stock Discount Purchase Plan (the "Plan").
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.
<PAGE>
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 Plan has 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 Plan and, when: (i) the Registration Statement becomes
effective under the Act; (ii) the Shares are issued in accordance with the terms
of the Plan; (iii) the recipient provides the full consideration for such Shares
as required by the terms of the Plan (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.
<PAGE>
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
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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
