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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following material is incorporated herein by reference:
(a) The Definitive Proxy Statement on Schedule 14A of nutrisystem.com
inc. (the "Company") dated June 2, 2000 as filed by the Company with the
Securities and Exchange Commission (the "Commission") on June 2, 2000.
(b) The Company's Quarterly Reports on Form 10-Q dated May 12, 2000
and July 31, 2000 as filed by the Company with the Commission on May 12, 2000
and July 31, 2000, respectively.
(c) The description of the Company's Common Stock set forth in the
Company's Amended Registration Statement on Form 10 filed by the Company with
the Commission under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on March 14, 2000.
All reports or other documents filed pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of this
Registration Statement, in each case filed by the Company prior to the filing of
a post-effective amendment that indicates that all securities offered have been
sold or that 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 reports and documents. Any statement
contained in a document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for the purposes of this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
herein by reference, 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modified or superseded shall not be deemed, except as so modified or superseded,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.
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No answer to this item is required because the class of securities to
be offered is registered under Section 12 of the Exchange Act.
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Item 5. Interests of Named Experts and Counsel.
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The financial statements and schedule contained in Amendment No. 4 of
the Company's Form 10 Registration Statement for the year ended December 31,
1999 incorporated by reference in this Registration Statement have been audited
by Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said report.
The validity of the issuance of the shares of Common Stock registered
hereby will be passed upon for the Company by Duane, Morris & Heckscher LLP,
Philadelphia, Pennsylvania. As of August 30, 2000, partners of Duane, Morris &
Heckscher LLP beneficially owned 15,000 shares of the Company's outstanding
Common Stock.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") empowers a Delaware 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, 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 the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon 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 the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
In the case of an action or suit by or in the right of the corporation
to procure a judgment in its favor, Section 145 of the DGCL 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 reason of
the fact that the person is or was acting in any of the capacities set forth
above against expenses (including attorneys' fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such
action or suit if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation, except that indemnification is not permitted in respect of any
claim, issue or matter as to which such person is adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought determines upon application that,
despite the adjudication of liability but in view of all
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the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
deems proper.
Section 145 of the DGCL further provides that a Delaware corporation
is required to indemnify a director, officer, employee or agent against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with any action, suit or proceeding or in defense of any claim, issue
or matter therein as to which such person has been successful on the merits or
otherwise; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
that indemnification provided for by Section 145 shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors and administrators and empowers the corporation to
purchase and maintain insurance on behalf of a director or officer against any
liability asserted against him or her and incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such liability
under Section 145. A Delaware corporation may provide indemnification only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
or she has met the applicable standard of conduct. Such determination is to be
made (i) by the board of directors by a majority vote of a quorum consisting of
directors who were not party to such action, suit or proceeding, even though
less than a quorum, (ii) if there are no such directors or if such directors so
direct, by independent legal counsel in a written opinion or (iii) by the
stockholders.
The Company's By-laws provide that the Company shall indemnify its
directors and officers and, to the extent permitted by the Board of Directors,
the Company's employees and agents, to the full extent permitted by and in the
manner permissible under the laws of the State of Delaware. In addition, the
Company's By-laws permit the Board of Directors to authorize the Company to
purchase and maintain insurance against any liability asserted against any of
the Company's directors, officers, employees or agents arising out of their
capacity as such.
Item 7. Exemption from Registration Claimed.
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No answer to this item is required because no restricted securities
are to be reoffered or resold pursuant to this Registration Statement.
Item 8. Exhibits.
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Reference is made to the Exhibit Index contained on Page II-6 of this
Form S-8 Registration Statement.
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Item 9. Undertakings.
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The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(1) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(2) to reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective registration
statement; and
(3) to include any additional or changed material information with
respect to the plan of distribution;
provided, however, that paragraphs (a)(1) and (a)(2) of this Item 9 do not apply
if the Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment is incorporated by
reference from periodic reports filed by the small business issuer under the
Exchange Act.
(b) For the purpose of determining any liability under the Act, to
treat each post- effective amendment as a new registration statement relating to
the securities offered therein, and the offering of such securities at that time
to be the initial bona fide offer thereof; and
(c) To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
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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 Horsham, Pennsylvania on August 29, 2000.
nutrisystem.com inc.
By: /s/ Brian D. Haveson
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Brian D. Haveson, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the date indicated.
Signature Title Date
------------------------- ----------------------------- ---------------
/s/ Brian D. Haveson President and Chief Executive August 31, 2000
------------------------- Officer and Director (principal
Brian D. Haveson executive officer)
/s/ James D. Brown Chief Financial Officer and August 31, 2000
-------------------------- Treasurer (principal financial
James D. Brown and accounting officer)
Director August , 2000
--------------------------
Michael E. Heisley
/s/ Frederick C. Tecce Director August 31, 2000
--------------------------
Frederick C. Tecce
/s/ Donald R. Caldwell Director August 31, 2000
--------------------------
Donald R. Caldwell
/s/ Dean J. Bozzano Director August 31, 2000
--------------------------
Dean J. Bozzano
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EXHIBIT INDEX
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(Pursuant to Item 601 of Regulation S-K)
Exhibit No. Exhibit Reference
4.1 nutrisystem.com inc. 1999 Equity Incentive Plan *
4.2 nutrisystem.com inc. 2000 Equity Incentive Plan Filed herewith
4.3 nutrisystem.com inc. 2000 Equity Incentive Plan Filed herewith
for Outside Directors and Consultants.
5 Opinion of Duane, Morris & Heckscher LLP. Filed herewith
23.1 Consent of Duane, Morris & Heckscher LLP Filed herewith
(included in their opinion filed as Exhibit 5).
23.2 Consent of Arthur Andersen LLP. Filed herewith
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* Such exhibit is hereby incorporated by reference to Exhibit 10.5 in the
Company's Form 10 Registration Statement filed by the Company on December
17, 1999.
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