<PAGE>
As filed with the Securities and Exchange Commission on June 9, 1998.
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
BALANCE BAR COMPANY
(Exact name of registrant as specified in its charter)
___________________
DELAWARE 77-0306617
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1015 MARK AVENUE, CARPENTERIA, CALIFORNIA 93013
(Address of principal executive offices)
BALANCE BAR COMPANY
1993 STOCK INCENTIVE PLAN,
1997 STOCK INCENTIVE PLAN, AS AMENDED, AND
1998 PERFORMANCE AWARD PLAN
(Full title of the plan)
JAMES A. WOLFE
1015 MARK AVENUE
CARPENTERIA, CALIFORNIA 93013
(Name and address of agent for service)
___________________
Telephone number, including area code, of agent for service: (805) 566-0234
___________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of each Class of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per share price fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 4,005,000/(1)/ $11.9375/(2)/ $47,809,687.50/(2)/ $14,103.86/(2)/
par value $.01 per share shares
</TABLE>
- --------------------------------------------------------------------------------
(1) This Registration Statement covers, in addition to the number of shares
of Common Stock stated above, options and other rights to purchase or
acquire shares of Common Stock covered by this Registration Statement
and, pursuant to Rule 416, an additional indeterminate number of shares
which by reason of certain events specified in the Plan may become
subject to the Plan.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in the
aggregate, and the registration fee were calculated based upon the
average of the high and low prices of the Common Stock reported on the
Nasdaq National Market System as of June 4, 1998.
The Exhibit Index for this Registration Statement is at page 8.
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-
8 (plan information and registrant information) will be provided to employees in
accordance with Securities and Exchange Commission Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents need
not be filed with the Securities and Exchange Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents, which include the statement of availability required
by Item 2 of Form S-8, and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
2
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Balance Bar Company (the "Company") filed
with the Securities and Exchange Commission are incorporated herein by
reference:
(a) The Prospectus filed on Form 424 B4 with the Commission June 2, 1998
pursuant to Rule 424(b) of the Securities Act; and
(b) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A dated April 7, 1998 and filed with
the Commission on April 8, 1998 (which incorporates by reference the
description of the Company's Common Stock contained in its Registration
Statement on Form S-1 filed with the Commission on April 8, 1998), and
any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(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 into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained herein or 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
statement modified or superseded shall not be deemed, except as so modified or
amended, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Company's Common Stock, par value $.01 per share (the "Common
Stock") is registered pursuant to Section 12 of the Exchange Act, and,
therefore, the description of securities is omitted. A description of the
capital stock constitutes a part of the prospectus for the Plan.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
3
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation provides that to the fullest
extent permitted by the Delaware General Corporate Law (the "DGCL"), a director
of the Company will not be liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director. Under the DGCL,
liability of a director cannot be limited (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or that involve intentional misconduct or a knowing violation
of law, (iii) in respect of certain unlawful dividend payments or stock
redemptions or repurchases, or (iv) for any transaction from which the director
derives an improper personal benefit. The effect of the provisions of the
Company's Certificate of Incorporation is to eliminate the rights of the Company
and its stockholders (through stockholders' derivative suits on behalf of the
Company) to recover monetary damages against a director for breach of the
fiduciary duty of care as a director (including breaches resulting from
negligent or grossly negligent behavior), except in the situations described in
clauses (i) through (iv) above. This provision does not limit or eliminate the
rights of the Company or any stockholder to seek nonmonetary relief such as an
injunction or the Company or any stockholder to seek nonmonetary relief such as
an injunction or rescission if a director breaches his or her duty of care. In
addition, the Company's Certificate of Incorporation and Bylaws provide that the
Company will indemnify its directors, officers, employees, and agents against
losses incurred by any such person by reason of the fact that such person was
acting in such capacity.
The Company has entered into contracts with each of the directors and
officers of the Company under which the Company must indemnify them from claims,
liabilities, damages, expenses, losses, costs, penalties or amounts paid in
settlement incurred by them in or arising out of their work for or on behalf of
the Company, to the maximum extent provided by applicable law. In addition, such
parties are entitled to an advance of expenses in such matters, to the maximum
extent authorized or permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index.
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;
4
<PAGE>
(ii) To reflect in the prospectuses any facts or events arising
after the effective date of the Registration Statement (or the 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 the Registration
Statement or any material change to such information in the
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 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 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) 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 provisions described in Item 6 above, 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.
5
<PAGE>
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 the City of Los Angeles, State of California, on June 8, 1998.
BALANCE BAR COMPANY
By: /s/ Thomas J. Flahie
---------------------------------------
Thomas J. Flahie
Senior Vice President
of Finance and Administration
6
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
James A. Wolfe, Thomas J. Flahie, and Richard G. Lamb, his true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Thomas R. Davidson Chairman of the Board of June 8, 1998
- -------------------------- Directors
Thomas R. Davidson
/s/ James A. Wolfe Chief Executive Officer (Principal June 8, 1998
- -------------------------- Executive Officer) and Director
James A. Wolfe
/s/ Thomas J. Flahie Senior Vice President of Finance June 8, 1998
- -------------------------- and Administration (Principal
Thomas J. Flahie Financial and Accounting
Officer)
/s/ Adelle M. Demko Director June 8, 1998
- ---------------------------
Adelle M. Demko
/s/ Barry D. Goss Director June 8, 1998
- ---------------------------
Barry D. Goss
/s/ John Hale Director June 8, 1998
- ---------------------------
John Hale
/s/ Richard G. Lamb Director June 8, 1998
- ---------------------------
Richard G. Lamb
/s/ Dennis Ryan McCarthy Director June 8, 1998
- -------------------------
Dennis Ryan McCarthy
/s/ George F. Raymond Director June 8, 1998
- --------------------------
George F. Raymond
7
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1 Balance Bar Company 1993 Stock Incentive Plan (previously
filed as exhibit 10.4 on form S-1/A filed on May 8, 1998
and incorporated herein by this reference)
4.2 Balance Bar Company 1997 Stock Incentive Plan (previously
filed as exhibit 10.5 on form S-1 filed on April 8, 1998
and incorporated herein by this reference)
4.3 Amendment to Balance Bar Company 1997 Stock Incentive Plan
4.4 Balance Bar Company 1998 Performance Award Plan (previously
filed as exhibit 10.6 on form S-1/A filed on May 8, 1998
and incorporated herein by this reference)
4.5 Form Employee Option Agreement under 1993 Stock Incentive
Plan (previously filed as exhibit 10.11 on form S-1 filed
on April 8, 1998 and incorporated herein by this reference)
4.6 Form of Employee Option Agreement under 1997 Stock
Incentive Plan (previously filed as exhibit 10.12 on form
S-1 filed on April 8, 1998 and incorporated herein by this
reference)
4.7 Form of Employee Option Agreement under 1998 Performance
Award Plan (previously filed as exhibit 10.13 on form S-1
filed on May 8, 1998 and incorporated herein by this
reference)
4.8 Form of Director Nonqualified Stock Option Agreement under
1998 Performance Award Plan (previously filed as Exhibit A
to 1998 Performance Award Plan filed as exhibit 10.6 on
form S-1/A filed on May 8, 1998 and incorporated herein by
this reference)
5.0 Opinion of Counsel to the Company (including consent)
23.1 Consent of Independent Public Accountants
23.2 Consent of Counsel (included with Exhibit 5.0)
24. Power of Attorney (included in this Registration Statement
under "Signatures")
8
<PAGE>
EXHIBIT 4.3
BALANCE BAR COMPANY
AMENDMENT TO BALANCE BAR COMPANY
1997 STOCK INCENTIVE PLAN
WHEREAS, the Board of Directors and the stockholders of Balance Bar
Company (the "Company") approved an amendment to the Balance Bar Company 1997
Stock Incentive Plan (the "Plan") to increase the number of shares authorized
for issuance under the Plan by 51,500 shares effective April 24, 1998;
WHEREAS, effective May 6, 1998, the Company effected a 6:1 stock split
of the common stock, par value $0.01 per share, of the Company; and
WHEREAS, prior to the stock split effective May 6, 1998, the Company
had issued no Shares under the Plan.
NOW, THEREFORE, Section 5 of the Plan is hereby amended and restated
in its entirety to give effect to these changes as of May 6, 1998 as follows:
5. THE STOCK.
Subject to adjustment as set forth in this Section 5, the total
number of Shares which may be issued under the Plan upon exercise of
options or other rights to purchase Shares shall not exceed the sum of (i)
489,000 Shares, plus (ii) that number of Shares available for issuance
under the Company's 1993 Stock Incentive Plan (the "'93 Plan"), less those
shares actually issued or reserved for issuance upon the exercise of
options awarded under the '93 Plan (such sum of Shares being net of the
number of Shares, as adjusted, issued under the Plan before May 6, 1998);
provided, however, that if any outstanding option shall for any reason
-------- -------
expire or terminate unexercised, then such Shares shall again be available
for issuance under the Plan. Each time any of the events set forth in
Section 6.8(a) or Section 6.8(b) of the Plan occurs, the number of Shares
purchasable under the Plan shall be adjusted in the same manner as the
number of Shares subject to any outstanding option would be adjusted under
the provisions of Section 6.8(c) of the Plan.
DATE: June 8, 1998
AUTHORIZATION CONFIRMED BY:
/s/ Thomas J. Flahie
---------------------------------
Name: Thomas J. Flahie
Title: Senior Vice President of
Finance and Administration
<PAGE>
EXHIBIT 5
[O'MELVENY & MYERS LLP LETTERHEAD]
June
8th
1 9 9 8
(213) 669-6000
043,280-005
0805416.01
Balance Bar Company
1015 Mark Avenue
Carpenteria, California 93013
Ladies and Gentlemen:
You have advised us that you propose to file a Registration Statement
on Form S-8 with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate
4,005,000 shares of Common Stock, $.01 par value (the "Shares") of Balance Bar
Company (the "Company"), to be issued pursuant to the Balance Bar Company 1993
Stock Incentive Plan, 1997 Stock Incentive Plan, as amended, and the 1998
Performance Award Plan (collectively, the "Plans"). At your request, we have
examined the proceedings heretofore taken and to be taken in connection with the
authorization of the Plans and the Common Stock to be issued pursuant to and in
accordance with the Plans.
Based upon such examination and upon such matters of fact and law as
we have deemed relevant, we are of the opinion that the Shares have been duly
authorized by all necessary corporate action on the part of the Company and,
when issued in accordance with such authorization (and appropriate Committee
action thereunder), the provisions of the Plans and relevant agreements duly
authorized by and in accordance with the terms of the Plans, will be validly
issued, fully paid and non-assessable shares of Common Stock.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
/s/ O'Melveny & Myers LLP
O'MELVENY & MYERS LLP
<PAGE>
[EXHIBIT 23.1]
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 registration statement of our report dated May 15,
1998 included in Balance Bar Company's Form S-1, as amended (Registration
Statement File No. 333-49651), and to all references to our Firm included in
this registration statement.
Los Angeles, California
June 8, 1998
/s/ Arthur Andersen LLP
Arthur Andersen LLP
