As filed with the Securities and Exchange Commission on February __, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NBTY, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2228617
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(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization
90 Orville Drive, Bohemia, New York 11716
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(Address of Principal executive offices) (Zip Code)
1998 Incentive Stock Option Plan
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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)
Calculation of Registration Fee
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<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Title of Securities Proposed Maximum Proposed Maximum Amount
Securities to Amount to be Offering Price Aggregate Offering of Reg.
be Registered Registered(1)(2) Per Share Price Fee(3)
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$.008 par value 976,000 $0.305 $ 297,680 $ 82.76
Common Stock
$.008 par value 3,000,000 $5.84 $17,570,000 $4,870.56
---------
Total $4,953.32
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<FN>
<F1> The amount being registered represents an aggregate of 976,000 shares
of Common Stock issued or issuable upon the exercise of outstanding
non-qualified stock options granted to Directors and Officers of the
Registrant, and
<F2> 3,000,000 shares of common stock issued or issuable under the
Registrant's 1998 Stock Incentive Plan.
Pursuant to Rule 416(c) promulgated under the Securities Act of 1933,
as amended, the Registration Statement also covers an indeterminate
amount of securities to be offered or sold as a result of any
adjustments from stock splits, stock dividends or similar events.
<F3> Determined by the exercise price of the options pursuant to 17C.F.R.
Section 230.457(h)(1) and Section 230.457(c).
</FN>
</TABLE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of
1933, as amended, and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated into this Registration Statement: (i) the
Registrant's Annual Report on Form 10-K for the fiscal year ended September
30, 1998, (ii) the Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1998, and (iii) the description of the
Registrant's Common Stock contained in the Registrant's Registration
Statement on Form S-3, effective July 1, 1998.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after
the date of this Registration Statement, but prior to the filing of a post-
effective amendment to this Registration Statement which indicates that all
securities offered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement. Each document
incorporated by reference into this Registration Statement shall be deemed
to be a part of this Registration Statement from the date of filing of such
document with the Commission until the information contained therein is
superseded or updated by any subsequently filed document which is
incorporated by reference into this Registration Statement or by any
document which constitutes part of the prospectus relating to the
Registrant's Stock Incentive Plans meeting the requirements of Section 10
(a) of the Securities Act.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference as
part of this Registration Statement:
EXHIBIT NO. DESCRIPTION
5.1 Opinion of Michael C. Duban, P.C. as to the legality of the
shares being registered.
23.1 Consent of PricewaterhouseCoopers, LLP (independent public
accountants).
23.2 Consent of Michael C. Duban, P.C. (included in the Opinion
filed as (Exhibit 5.1).
24.1 Power of Attorney (set forth on the signature page of this
Registration Statement).
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 Bohemia, Town of Islip, County of Suffolk, State of New York
on this 1st day of February, 1999.
NBTY, INC.
By: /s/ Scott Rudolph
-----------------
Scott Rudolph
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL MEN THESE PRESENTS, that each person whose signature appears below
constitutes and appoints either Scott Rudolph or Harvey Kamil his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement,
and to file the same with all exhibits thereto, and other documentation in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents 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 or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, amy
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, the Registration
Statement and the foregoing Power of Attorney have been signed by the
following persons in the capacities and on the date(s) indicated:
Dated: February 1, 1999 By: /s/ Scott Rudolph
---------------------------------
Scott Rudolph
Chairman of the Board,
President, Chief Executive Officer
Dated: February 1, 1999 By: /s/ Harvey Kamil
---------------------------------
Harvey Kamil
Executive Vice President and
Chief Financial Officer
Dated: February 1, 1999 By: /s/ Arthur Rudolph
---------------------------------
Arthur Rudolph, Director
Dated: February 1, 1999 By: /s/ Aram Garabedian
---------------------------------
Aram Garabedian, Director
Dated: February 1, 1999 By: /s/ Bernard G. Owen
---------------------------------
Bernard G. Owen, Director
Dated: February 1, 1999 By: /s/ Alfred Sacks
---------------------------------
Alfred Sacks, Director
Dated: February 1, 1999 By: /s/ Murray Daly
---------------------------------
Murray Daly, Director
Dated: February 1, 1999 By:
---------------------------------
Glenn Cohen, Director
Dated: February 1, 1999 By: /s/ Bud Solk
---------------------------------
Bud Solk, Director
Dated: February 1, 1999 By: /s/ Nathan Rosenblatt
---------------------------------
Nathan Rosenblatt, Director
Dated: February 1, 1999 By: /s/ Michael Slade
---------------------------------
Michael Slade, Director
Dated: February 1, 1999 By: /s/ Michael Ashner
---------------------------------
Michael Ashner, Director
Exhibit 5.1
February 1, 1999
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 3,976,000 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.
I hereby consent to the use of my opinion as herein set forth as an
exhibit to the Registration Statement.
Yours very truly,
/s/ Michael C. Duban
Michael C. Duban
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of NBTY, Inc. on Form S-8 of our report dated November 19, 1998,
on our audits of the consolidated financial statements and financial statement
schedule of NBTY, Inc. and Subsidiaries as of September 30, 1998 and 1997, and
for each of the three years in the period ended September 30, 1998 which
report is included in the NBTY, Inc. Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
New York, New York
February 1, 1999
