As filed with the Securities and Exchange Commission on , 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT
TO FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NBTY, INC.
(Formerly NATURE'S BOUNTY, INC.)
(Exact name of registrant as specified in its charter)
Delaware 11-2228617
------------------------------- ---------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization
90 Orville Drive, Bohemia, New York 11716
- ---------------------------------------- ----------
(Address of Principal executive offices) (Zip Code)
1989 Non-Qualified Stock Options
--------------------------------
1990 Non-Qualified Stock Options
--------------------------------
1992 Non-Qualified Stock Options
--------------------------------
(Full title of Plans)
Scott Rudolph, President, 90 Orville Drive, Bohemia, New York 11716
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(Name and address of agent for service)
516-567-9500
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(Telephone number, including area code, of agent for service)
NBTY, INC.
CROSS-REFERENCE SHEET
(Pursuant to Item 501(b) of Regulation S-K)
-------------------------------------------
Item in Form S-8 Location in Prospectus
- ---------------- ----------------------
1. Forepart of Registration Statement and Cover Page of Prospectus
Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Inside Front and Outside
Pages of Prospectus Back Pages of Prospectus
3. Summary Information, Risk Factors 1989, 1990 and 1992 Non-
and Ratio of Earnings to Fixed Charges Qualified Stock Options
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Selling Security Holders
8. Plan of Distribution Plan of Distribution
9. Description of Securities to be 1989, 1990 and 1992 Non-
Registered Qualified Stock Options
10. Interests of Named Experts and Counsel Legal Opinion; Experts
11. Material Changes Not Applicable
12. Incorporation of Certain Information Incorporation of Certain
by Reference Documents by Reference
13. Disclosure of Commission Position Indemnification of Offi-
on Indemnification for Securities cers, Directors and Others
Act Liabilities
14. Exemption from Registration Claimed Exemption from Registration
Claimed
15. Exhibits Exhibits
16. Undertakings Undertakings
PROSPECTUS
Reoffer Prospectus dated , 1997
1,523,000 Shares
NBTY, INC.
Common Stock
($.008 Par Value)
___________________________
1989 NON-QUALIFIED STOCK OPTIONS
1990 NON-QUALIFIED STOCK OPTIONS
1992 NON-QUALIFIED STOCK OPTIONS
This Prospectus is being used in connection with the offering, from time
to time, by certain stockholders who may be deemed to be affiliates ("Selling
Stockholders") of NBTY, Inc. (the "Company") of shares of Common Stock of the
Company (the "Shares"), issued or issuable upon the exercise of a like number
of non-qualified stock options granted to certain Officers and Directors of the
Company pursuant to the Company's 1989, 1990 and 1992 Non-Qualified Stock
Options (the "Options"). These persons may offer these Shares, upon exercise
of the non-qualified stock options, for sale as principals for their own
accounts at any time and from time to time on the NASDAQ/NMS or otherwise at
prices prevailing at the time of sale or in private sales and at prices to be
negotiated. The Officers and Directors, upon exercise of the options and sale
of the shares of Common Stock, receive the entire proceeds from such sale (see
"Selling Security Holders"). The Company will not receive any of the proceeds
from the sale of the Shares, but will receive funds upon the exercise of the
options. All of the Selling Security Holders are Officers and/or Directors of
the Company and may be deemed to be affiliates of the Company as that term is
defined under Rule 405 of the Securities Act of 1933, as amended.
____________________________________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
____________________________________________________________
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN AS CONTAINED HEREIN IN CONNECTION WITH THE OFFER
CONTAINED IN THIS PROSPECTUS, AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION MAY NOT BE LAWFULLY MADE.
The Date of this Prospectus is , 1997.
TABLE OF CONTENTS
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Page
----
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Available Information . . . . . . . . . . . . . . . . . . . . . . 2
1989, 1990 and 1992 Non-Qualified Stock Options . . . . . . . . . 2
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 5
Selling Security Holders. . . . . . . . . . . . . . . . . . . . . 6
Plan of Distribution. . . . . . . . . . . . . . . . . . . . . . . 7
Incorporation of Certain Documents by Reference . . . . . . . . . 7
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Legal Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . 8
THE COMPANY
-----------
NBTY, Inc. (the "Company"), collectively with its subsidiaries is a
manufacturer and marketer of nutritional supplements in the United States. It
sells more than 500 products consisting of vitamins and other nutritional
supplements such as minerals, amino acids and herbs. Vitamins, minerals and
amino acids are sold as a single vitamin and in multi-vitamin combinations and
in varying potency levels in powder, tablet, soft gel, chewable, and hard shell
capsule form. The Company's branded products are sold by independent and chain
pharmacies, wholesalers-retailers, supermarkets, health food stores and by
direct mail.
AVAILABLE INFORMATION
---------------------
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 and, in accordance therewith, files reports and
other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy and information statements and other information
concerning the Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549; Room 1204, Everett McKinley Dirksen Building, 219 South Dearborn
Street, Chicago, Illinois 60604; Room 1100, 75 Park Place, New York, New York
10007; 411 West Seventh Street, Fort Worth, Texas 76102, 8th Floor; and 5757
Wilshire Boulevard, Suite 500 East, Los Angeles, California, 90036-3648.
Copies of any such material can be obtained from the Public Reference Section
of the Commission, Washington, D.C. 20549 at prescribed rates.
The Company will provide without charge to each person to whom a
Prospectus is delivered, upon written or oral request of such person, a copy of
any and all of the information that has been incorporated herein by reference
(not including any exhibits thereto). Such requests should be made to the
Corporate Secretary, NBTY, Inc., 90 Orville Drive, Bohemia, New York 11716,
telephone number (516)567-9500.
1989 NON-QUALIFIED STOCK OPTIONS
1990 NON-QUALIFIED STOCK OPTIONS
1992 NON-QUALIFIED STOCK OPTIONS
--------------------------------
General Information. In December, 1989, September, 1990 and March, 1992,
the Company issued 689,000, 1,320,000 and 1,075,000 Non-Qualified Stock
Options, respectively, to certain Officers and Directors. Pursuant thereto,
options to purchase an aggregate of 3,084,000 shares of Common Stock, $.008 par
value per share (the "Common Stock"), were granted to Directors and Officers of
the Company. The 3,084,000 shares of Common Stock subject to options were
reserved for issuance upon exercise of the options granted and to be granted.
The purpose of the options was to attract, retain and motivate employees
of the Company and to encourage equity ownership in the Company by such
employees by providing them with a means to acquire a proprietary interest in
the Company. Copies of the following statements which summarize certain
provisions applicable to the options are available for examination at the
principal office of the Company, 90 Orville Drive, Bohemia, New York, 11716,
telephone number (516) 567-9500, and at the offices of the Securities and
Exchange Commission.
Neither the Plan nor any of the Option Agreements (i) is subject to any
of the provisions of the Employee Retirement Income Security Act of 1974, or
(ii) is a "qualified plan" under Section 401(a) of the Internal Revenue Code
of 1954, as amended (the "Code").
Summary of the Options
----------------------
The following is a brief summary of the provisions of the Options.
The Options provide that they may be granted to employees (including
Officers and Directors) of the Company and its subsidiaries, all of whom are
eligible to participate. The Board of Directors or a committee appointed by
the Board will select the optionees and determine the number of shares to be
subject to each option. In making such determination, there will be taken into
account the duties and responsibilities of the employee, the value of the
employee's services, his present and potential contributions to the success of
the Company, the anticipated years of future service of the employee and other
relevant factors.
Administration
--------------
The Options are administered either by the Board of Directors of the
Company or by a committee of not less than three members appointed by the
Board. The interpretation and construction of any provisions of the Options by
the Board or its committee shall be final and conclusive. Members of the Board
will receive no compensation for their services in connection with the
administration of the Options.
Terms of Options
----------------
The terms of options granted are to be determined by the Board or its
committee. Each option is to be evidenced by a stock option agreement between
the Company and the employee to whom such option is granted, and is subject to
the following additional terms and conditions:
(a) Exercise of the Option: The Board of Directors or its
committee have determined that the time period during which options
granted is for a term of five to ten years and will be exercisable in
whole or in part at any time during the period. Unless otherwise
provided in any option agreement, any option granted may be exercisable
in whole or in part at any time during the exercise period. An option is
exercised by giving written notice of exercise to the Company specifying
the number of full shares of Common Stock to be purchased and tendering
payment of the purchase price to the Company in cash or certified check.
(b) Option Price: The option price is determined by the Board of
Directors or its committee but in no event may the option price be less
than the fair market value on the date of grant. Such fair market value
shall be determined by the Board of Directors and, if the shares of
Common Stock are listed on the national securities exchange or traded on
the over-the-counter market, the fair market value shall be the mean of
the reported bid and asked prices of the Common Stock on such date.
Non-Qualified options granted to 10% shareholders of the Company are
subject to the additional restriction that the option price must be at
least 110% of the fair market value of the Company's Common Stock on the
date of grant.
(c) Termination of Employment; Death: If the employment of an
optionee is terminated voluntarily by such optionee or for cause, his
option shall expire immediately. If, however, such employment is
terminated otherwise than by death, voluntarily or for cause, the
optionee may exercise his option at any time within three months after
such termination. For the purposes of the Options, retirement pursuant
to either a pension or retirement plan adopted by the Company, or at the
normal retirement date prescribed from time to time by the Company, is
not deemed to be either voluntary termination or a termination for cause.
In the event an optionee dies (a) while in the employ of the
Company or a subsidiary or parent thereof or (b) within three months
after the termination of his employment other than voluntarily or for
cause, his option may be exercised by a legatee or legatees of such
option under such optionee's Last Will and Testament or by his personal
representatives or distributees at any time within one year after his
death.
In any event, an option may only be exercised to the extent that it
could have been exercised by the optionee at the time of his termination
of employment or death. In no event may an option be exercised after the
expiration of ten years from the date of its grant.
(d) Termination of Options: Unless otherwise provided in the
terms of an option, options are granted for a period of five to ten
years. No option can be exercisable by any persons after such
expiration. No options can have a term greater than ten years and stock
options granted to holders of more than 10% of the Company's Common Stock
may not have a term of more than ten years.
(e) Nontransferability of Options: An option is nontransferable
by the optionee, other than by will or the laws of descent and
distribution, and is exercisable during the optionee's lifetime only by
the person who acquires the right to exercise the option by bequest or
inheritance or by reason of the death of the optionee.
The option agreement may contain such other terms, provisions and
conditions not inconsistent with the Options as may be determined by the
Board of Directors or its committee.
TERMINATION; AMENDMENT OR DISCONTINUANCE
----------------------------------------
The Board of Directors of the Company may from time to time make such
modifications or amendment of the options as it deems advisable.
However, termination, modification or amendment of the Plan may adversely
affect the terms of any outstanding options without the consent of the holders
of such options.
ADJUSTMENTS UPON CHANGES IN COMMON STOCK
----------------------------------------
In the event that the number of outstanding shares of Common Stock of the
Company is changed by reason of recapitalization, reclassification, stock
split, stock dividend, combination, exchange of shares, or the like, the Board
of Directors of the Company will make an appropriate adjustment in the
aggregate number of shares of Common Stock available under the Options in the
number of shares of Common Stock reserved for insurance upon the exercise of
then outstanding options and in the exercise prices of such options. Any
adjustment in the number of shares will apply proportionately only to the
unexercised portion of options. Fractions of shares resulting from any such
adjustment shall be revised to the next lower whole number of shares.
In the event of the proposed dissolution, liquidation, merger or sale of
substantially all of the assets of the Company, all outstanding options will
automatically terminate unless otherwise provided by the Board. The Board of
Directors or its committee may in its discretion make provisions for
accelerating the exercisability of shares subject to options in such
circumstances.
USE OF PROCEEDS
---------------
Upon the exercise of the 3,084,000 non-qualified stock options
registered hereby, the Company will receive gross proceeds of $2,153,125. The
Company intends to use such proceeds for working capital purposes. The Company
will not realize any proceeds upon the sale of the shares of Common Stock
issued or issuable upon the exercise of the non-qualified stock options.
SELLING SECURITY HOLDERS
------------------------
The following table lists the Selling Stockholders with respect to the
shares of Common Stock being registered hereunder; the number of shares known
to the Company to be held by each as of September 30, 1996; the number of stock
options granted to each; the number of shares owned by each as a result of the
exercise of stock options; the number of shares to be sold by each; and the
percentage of outstanding shares of Common Stock to be beneficially owned by
each before and after the sale of the shares hereby.
Upon the exercise of the stock options, the Selling Stockholders intend
to offer the shares for sale as principals for their own accounts at any time
and from time to time on the NASDAQ/NMS or otherwise, at prices prevailing at
the time of sale, or in private sales and at prices to be negotiated.
Selling Security Holders
------------------------
<TABLE>
<CAPTION>
Total Number of Number of Percentage of Shares
Number of 1989 Non- 1990 Non- Number of of Common Stock
Shares of Qualified Qualified 1992 Non- Aggregate Beneficially owned (1)
Common Stock Stock Stock Qualified Number of ----------------------
Selling Beneficially Options Options Stock Options Options Before After
Stockholders Owned Granted Granted(3) Granted Granted Offering Offering
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Scott Rudolph 3,673,555 419,333(3) 900,000 600,000(3) 1,919,333 18.8 --
Harvey Kamil 718,439 221,667(3) 420,000 60,000(3) 701,667 3.8 --
Barry Drucker 43,600 40,000 40,000 (2) (2)
James Flaherty 30,148 45,000 45,000 (2) (2)
Abraham Kleinman 45,000 45,000 45,000 (2) (2)
Jean Palladino 45,000 45,000 45,000 (2) (2)
Abraham Rubenstein 45,000 45,000 45,000 (2) (2)
William Shanahan 45,000 45,000 45,000 (2) (2)
Robert Silverman 45,000 45,000 45,000 (2) (2)
James Taylor 45,350 45,000 45,000 (2) (2)
Bernard G. Owen 31,400 12,000 12,000 24,000 (2) (2)
Aram Garabedian 24,000 12,000 12,000 24,000 (2) (2)
Murray Daly 22,000 12,000 12,000 24,000 (2) (2)
Alfred Sacks 15,000 12,000 12,000 24,000 (2) (2)
Glenn Cohen 12,000 12,000 12,000 (2) (2)
_____________________________
<F1> Based upon 18,592,119 shares outstanding as of September 30, 1996
<F2> Represents less than 1%
<F3> Exercised in full.
</TABLE>
PLAN OF DISTRIBUTION
--------------------
Any shares of Common Stock sold pursuant to this Reoffer Prospectus will
be sold by the Selling Stockholders for their own account, and they will
receive all proceeds from any such sales. The Corporation will receive none of
the proceeds from the sale of shares which may be offered hereby but will
receive funds upon the exercise of the options pursuant to which the Selling
Stockholders will acquire the shares covered by this Reoffer Prospectus, which
funds, if any, will be used for general corporate purposes. The Selling
Stockholders have not advised the Corporation of any specific plans for the
distribution of the shares of Common Stock covered by this Reoffer Prospectus,
but, if and when shares are sold, it is anticipated that the shares will be
sold from time to time primarily in transactions (which may include block
transactions), although sales may also be made in negotiated transactions or
otherwise. If shares of Common Stock are sold through brokers, the Selling
Stockholders may pay customary brokerage commissions and charges. The Selling
Stockholders may effect such transactions by selling shares to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Stockholders and/or the
purchasers of shares for whom such broker-dealers may act as agent or to whom
they may sell as principal, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions). The Selling
Stockholders and any broker-dealers that act in connection with the sale of the
shares hereunder might be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act of 1933, and any commissions received by
them and any profit on the resale of shares as principal might be deemed to be
underwriting discounts and commissions under such Act. Shares of Common Stock
covered by this Reoffer Prospectus also may be sold pursuant to Rule 144 under
the Securities Act of 1933 rather than pursuant to this Reoffer Prospectus.
The Selling Stockholders have been advised that they are subject to the
applicable provisions of the Securities Exchange Act of 1934, including without
limitation Rules 10b-5, 10b-6 and 10b-7 thereunder.
There can be no assurance that the Selling Stockholders will sell any or
all of the shares of Common Stock offered hereunder.
INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
The documents listed in (a) through (c) below are hereby incorporated by
reference in this Registration Statement on Form S-8; and all documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, 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 herein by reference in this Registration Statement on Form
S-8, and shall be a part hereof from the date of the filing of such documents.
(a) The Registrant's annual report on Form 10-K for the fiscal year
ended September 30, 1996.
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since September 30,
1996.
(c) The description of the Registrant's Common Stock contained in
reports and Registration Statements filed under the Securities
Exchange Act of 1934, including any amendment or report filed for
the purpose of updating such description.
All reports hereafter filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 herein by reference and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document 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 is also incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as modified or superseded, to constitute a part of
this registration statement.
EXPERTS
-------
The consolidated balance sheets as of September 30, 1996 and 1995 and the
consolidated statements of income, cash flows, stockholders' equity and the
financial statement schedule for each of the three years in the period ended
September 30, 1996, incorporated by reference in this Registration Statement,
have been incorporated herein in reliance on the report of Coopers & Lybrand
L.L.P., independent accountants, given on the authority of that firm as experts
in accounting and auditing.
LEGAL OPINION
-------------
The legality of the Securities being offered hereby is being passed upon
by Michael C. Duban, P.C., 81 Main Street, Suite 205, White Plains, New York
10601, general counsel to the Company. Michael C. Duban is a shareholder of
the Company.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
ITEM 3. Incorporation of Certain Documents by Reference.
- ---------------------------------------------------------
The documents listed in (a) through (c) below are hereby incorporated by
reference in this Registration Statement on Form S-8; and all documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, 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 herein by reference in this Registration Statement on Form S-8,
and shall be a part hereof from the date of the filing of such documents.
(a) The Registrant's annual report on Form 10-K for the fiscal year
ended September 30, 1996.
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since September 30,
1996.
(c) The description of the Registrant's Common Stock contained in
Registration Statements filed under the Securities Exchange Act of
1934, including any amendment or report filed for the purpose of
updating such description.
ITEM 4. Description of Securities
- ----------------------------------
Not Applicable.
ITEM 5. Interest of Named Experts and Counsel.
- -----------------------------------------------
Not Applicable.
ITEM 6. Indemnification of Directors and Officers.
- ---------------------------------------------------
Reference is made to the Company's Certificate of Incorporation, and to
Section 145 of the General Corporation Law for the State of Delaware ("DGCL").
Section 145 of the DGCL authorizes a corporation to provide indemnification
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred, in non-derivative actions,
suits or proceedings brought by third parties to an officer, director, employee
or agent of the corporation, if such party 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 action or proceeding, had no
reasonable cause to believe his conduct was unlawful as determined in
accordance with the statute.
In a derivative action, i.e., one by or in the right of the corporation,
indemnification may be made only for expenses actually and reasonably incurred
by directors, officers, employees or agents in connection with the defense or
settlement of an action or suit, and only with respect to a matter as to which
they shall have acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interest of the corporation, except that no
indemnification shall be made if such person shall have been adjudged liable to
the corporation, unless and only to the extent that the Court in which the
action or suit was brought shall determine upon application that the defendant
directors, officers, employees or agents are fairly and reasonably entitled to
indemnity for such expenses despite such adjudication of liability.
The Company maintains officers and directors liability insurance.
Further, the Company has agreed to indemnify all directors and officers of the
Company for any claims made against them, subject to the following conditions.
Such indemnification will not extend to certain claims, including claims based
upon or attributable to the indemnitee's gaining personal profit or advantage
to which he is not legally entitled, claims brought or contributed to by the
dishonesty of the indemnitee and claims under Section 16(b) of the Securities
Exchange Act of 1934 for an accounting of profits resulting from the purchase
or sale by the indemnitee of the Company's securities. Notwithstanding the
foregoing, and insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Act") may be permitted to directors,
officers or personnel controlling the Company, in the opinion of the Securities
and Exchange Commission, such indemnification is against public policy as
expressed in the Act and is therefore unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Company if expenses incurred or paid by a director, officer or a controlling
person of the Company in a successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person for
liabilities arising under the Act in connection with the securities being
registered hereunder, the Company will, unless in the opinion of its counsel,
the issue has been settled by controlling precedent, submit to a court or
appropriate jurisdiction the issue as to whether such indemnification by it is
against public policy as expressed in the Act and will comply with the final
adjudication of such issue.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
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 as to
whether such indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
ITEM 7. Exemption From Registration Claimed.
The Non-Qualified Stock Options and the shares of Common Stock issued
upon the exercise of certain of such options, which are being registered
herein, were issued without registration under the Securities Act of 1933, as
amended, in accordance with the exemption, from registration contained in
Section 4(2) of such Act.
ITEM 8. Exhibits.
Exhibit
Number
- ------
4.1 1989, 1990 and 1992 Non-Qualified Stock Options.*
5. Opinion of Michael C. Duban, P.C, as to the legality of the
Securities being offered hereunder.
24.1 The consent of Michael C. Duban, P.C. is included in its opinion
filed as Exhibit 5 to the Registration Statement.
24.2 Consent of Coopers & Lybrand L.L.P., independent accountants.
- ---------------------
* Filed Previously.
ITEM 9. Undertakings.
1. The undersigned Registrant hereby undertakes to file during any
period in which offers or sales are being made, a post-effective amendment to
this Registration Statement 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.
2. The undersigned Registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933, 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.
3. The undersigned Registrant hereby undertakes 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.
4. The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement related to the securities offered
therein, and the offering of such securities at such time shall be deemed to be
the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
the requirements for filing on Form S-8 and the registrant has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in Bohemia, New York on December 31, 1996.
By: /s/ Scott Rudolph
---------------------------------------
Scott Rudolph, President, Chairman of
the Board and Chief Executive Officer
By: /s/ Harvey Kamil
---------------------------------------
Harvey Kamil, Executive Vice President
and Chief Financial Officer and
Principal Accounting Officer
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 this report has been
signed by the following persons on behalf of the registrant in the capacities
and on the date indicated.
Date
/s/ Scott Rudolph President, Chief Executive 12/31/96
- --------------------- Officer, Chairman of the Board --------
Scott Rudolph
/s/ Arthur Rudolph Director 12/31/96
- --------------------- --------
Arthur Rudolph
/s/ Aram Garabedian Director 12/31/96
- --------------------- --------
Aram Garabedian
/s/ Bernard G. Owen Director 12/31/96
- --------------------- --------
Bernard G. Owen
/s/ Alfred Sacks Director 12/31/96
- --------------------- --------
Alfred Sacks
/s/ Murray Daly Director 12/31/96
- --------------------- --------
Murray Daly
/s/ Glenn Cohen Director 12/31/96
- --------------------- --------
Glenn Cohen
/s/ Nathan Rosenblatt Director 12/31/96
- --------------------- --------
Nathan Rosenblatt
/s/ Bud Solk Director 12/31/96
- --------------------- --------
Bud Solk
MICHAEL C. DUBAN, P.C.
ATTORNEY AT LAW 81 MAIN STREET
--------- SUITE 205
WHITE PLAINS, NEW YORK 10601
WRITER'S DIRECT DIAL -----------
(914) TELEPHONE 914 681-0606
TELECOPIER 914 948-0462
January 28, 1997
NBTY, Inc.
90 Orville Drive
Bohemia, New York 11716
RE: REGISTRATION STATEMENT ON FORM S-8 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
Gentlemen:
In my capacity as counsel to NBTY, Inc. a Delaware Corporation (the
"Company"), I have been asked to render this opinion in connection with a
Registration Statement on Form S-8 filed by the Company with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the
"Registration Statement"), covering 3,084,000 shares of Common Stock (the
"Stock").
In connection, I have examined the Certificate of Incorporation, as
amended, and the By-Laws of the Company, the Registration Statement, as
amended, corporate proceedings of the Company relating to the issuance of the
Stock, and such other instruments and documents as I have deemed relevant under
the circumstances.
In making the aforesaid examinations, I have assumed the genuineness of
all signatures and conformity to original documents of all copies furnished to
me as photostatic copies. I have also assumed that the corporate records
furnished to be me by the Company included all corporate proceedings taken by
the Company to date.
Based upon the foregoing, I am of the opinion that:
The Stock has been duly and validly authorized and, when issued and paid
for as described in the Registration Statement, will be duly and validly
issued, fully paid and nonassessable shares of Common Stock of the Company.
January 28, 1997
Page 2
I hereby consent to the use of my opinion as herein set forth as an
exhibit to the Registration Statement and to the use of my name under the
caption "Legal Matters" in the Prospectus forming a part of the Registration
Statement.
Your attention is directed to the fact that the undersigned owns 35,000
shares of the Company's Common Stock.
Yours very truly,
/s/ Michael C. Duban
Michael C. Duban
Exhibit 24.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 and Form S-3 of our report dated November 5, 1996, on our audits
of the consolidated financial statements and financial statement schedule of
NBTY, Inc. and Subsidiaries as of September 30, 1996 and 1995, and for each
of the three years in the period ended September 30, 1996, which report is
included in the NBTY, Inc. Annual Report on Form 10-K. We also consent to
the reference to our Firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Melville, New York
December 18, 1996.
