AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 20, 2000
REGISTRATION NO. ______
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 (I.R.S. Employer Identification Number)
Incorporation or Organization)
90 Orville Drive, Bohemia, New York 11716
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(Address of principal executive offices) (Zip Code)
YEAR 2000 INCENTIVE STOCK OPTION PLAN
(Full Title of the Plan)
SCOTT RUDOLPH, CHAIRMAN
NBTY, INC.
90 ORVILLE DRIVE
BOHEMIA, NEW YORK 11716
(631) 567-9500
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
A copy of all communications, including communications sent to the agent
for service should be sent to:
MICHAEL C. DUBAN, ESQ.
90 ORVILLE DRIVE
BOHEMIA, NEW YORK 11716
(631) 218-7326
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Each Maximum Maximum Amount of
Class of Securities Amount to be Offering Price Offering Registration
to be Registered Registered Per Share Price Fee
----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Year 2000 Stock
Option Plan(1)
Common Stock,
par value $.008 per
share 4,000,000(2)(3) $5.875(4) $23,500,000 $6,345(5)
--------------------
<FN>
<F1> Represents options granted or to be granted pursuant to the Year
2000 Incentive Stock Option Plan (the "Plan") of NBTY, Inc. (the
"Registrant").
<F2> Shares issuable upon exercise of options granted or available for
grant under the Plan.
<F3> Pursuant to Rule 416, includes an indeterminable number of shares
of Common Stock which may become issuable pursuant to the anti-
dilution provisions of the Plan and the Options.
<F4> Calculated solely for the purpose of determining the registration
fee pursuant to Rule 457(h)(1) based upon the average of the high
and low sales prices of the Registrant's Common Stock on NASDAQ NMS
on August 9, 2000.
<F5> No registration fee is required pursuant to Rule 457(h)(3) for
shares offered for resale.
</FN>
</TABLE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by NBTY, Inc. (the "Registrant"), pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this registration statement.
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1999.
(2) The Registrant's Quarterly Reports on Form 10-Q for the quarter ended
December 31, 1999, for the six months ended March 31, 2000, and for the
nine months ended June 30, 2000.
All 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 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 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
incorporated or deemed to be incorporated by reference herein modified or
supersedes such statement. Any such 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.
Michael C. Duban, Esq., counsel to the Registrant, beneficially owns,
directly and indirectly, an aggregate of 30,000 shares of Common Stock and
is rendering an opinion upon the validity of the securities being
registered hereby.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Delaware General Corporation Law, (the "DGCL"), a
corporation may indemnify any person made, or threatened to be made, a
party to any action or proceeding, except for shareholder derivative suits,
by reason of the fact that he or she was a director or officer of the
corporation, provided such director or officer acted in good faith for a
purpose which he or she reasonably believed to be in the best interests of
the corporation and, in criminal proceedings, had no reasonable cause to
believe his or her conduct was unlawful. Indemnification may be provided
against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees actually and necessarily incurred as a
result of such action, proceeding or appeal therefrom. Delaware law also
provides that expenses incurred in defending a civil or criminal action may
be paid by the corporation in advance of the final disposition of such
proceedings upon receipt of an undertaking by or on behalf of such director
or officer to repay such amount if it is ultimately determined that such
person was not entitled to such indemnification.
In the case of stockholder derivative suits, the corporation may
indemnify any person by reason of the fact that he or she was a director or
officer of the corporation if he or she acted in good faith for a purpose
which he or she reasonably believed to be in the best interest of the
corporation, except that no indemnification may be made in respect of (i) a
threatened action, or a pending action which is settled or otherwise
disposed of, or (ii) any claim, issue or matter as to which such person has
been adjudged to be liable to the corporation, unless and only to the
extent that the court in which the action was brought, or, if no action was
brought, any court of competent jurisdiction, determines upon application
that, in view of all the circumstances of the case, the person is fairly
and reasonably entitled to indemnity for such portion of the settlement
amount and expenses as the court deems proper.
The indemnification and advancement of the expenses described above
under the DGCL is not exclusive of other indemnification rights to which a
director or officer may be entitled, whether contained in the certificate
of incorporation or by-laws or when authorized by (i) such certificate of
incorporation or by-laws, (ii) a resolution of shareholders, (iii) a
resolution of directors, or (iv) an agreement providing for such
indemnification, provided that no indemnification may be made to or on
behalf of any director or officer if a judgment or other final adjudication
adverse to the director or officer establishes that his or her acts were
committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or that
he or she personally gained in fact a financial profit or other advantage
to which he or she was not legally entitled.
Any person who has been successful on the merits or otherwise in the
defense of a civil or criminal action or proceeding will be entitled to
indemnification. Except as provided in the preceding sentence, unless
ordered by a court pursuant to the DGCL, any indemnification under the DGCL
pursuant to the above paragraphs may be made only if authorized in the
specific case and after a finding that the director or officer met the
requisite standard of conduct (i) by the disinterested directors if a
quorum is available or (ii) in the event a quorum of disinterested
directors is not available, if so directed by either (A) the board upon the
written opinion of independent legal counsel or (B) by the shareholders.
The Registrant's By-Laws provides that the Registrant shall indemnify
directors and officers and their heirs, executors and administrators to the
full extent permitted by the DGCL. The Registrant, by appropriate action
of its Board of Directors, may indemnify directors and officers and their
heirs, executors and administrators to the full extent permitted by the
DGCL.
INSOFAR AS INDEMNFICATION 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
SECURITIES AND EXCHANGE COMMISSION SUCH INDEMNIFICATION IS AGAINST PUBLIC
POLICY AS EXPRESSED IN THE SECURITIES ACT AND IS, THEREFORE, UNENFORCEABLE.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
4.1 Year 2000 Incentive Stock Option Plan
(the "Plan")
4.2 Form of Stock Option Agreement under the Plan
between the Company and the holders of stock
options
5.1 Opinion of Michael C. Duban, Esq.
23.1 Consent of Michael C. Duban, Esq. (included in
Exhibit 5)
23.2 Consent of Independent Accountants
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;
(ii) to reflect in the prospectus 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, represents a fundamental
change in the information set forth in the registration
statement;
(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;
(2) 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
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 of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 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 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or
controlling persons of the Registrant pursuant to any arrangement,
provision 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 of 1933 and is,
therefore, unenforceable. In the event that 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 of 1933 and will be governed by the final adjudication
of such issue.
SIGNATURES
In accordance with 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 Bohemia, State of New York, on this 18th day
of September, 2000.
NBTY, INC.
By: /s/ Scott Rudolph
-----------------
Scott Rudolph,
Chairman of the Board
of Directors, President,
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Harvey Kamil as his true and lawful
attorney-in-fact and agent, 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 (including post-effective
amendments) and supplements to this Registration Statement, and to file the
same with the Commission, granting unto said attorney-in-fact and agent,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933 this
registration statement has been signed below by the following persons, in
the capacities indicated, on September 18, 2000:
/s/ Scott Rudolph /s/ Harvey Kamil
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Scott Rudolph, Chairman, President Harvey Kamil, Executive Vice
and Chief Executive Officer President and Chief Financial
Officer (Principal Financial and
Accounting Officer)
/s/ Arthur Rudolph /s/ Aram Garabedian
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Arthur Rudolph, Director Aram Garabedian, Director
/s/ Michael C. Slade /s/ Bernard G. Owen
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Michael C. Slade, Senior Vice Bernard G. Owen, Director
President and Director
/s/ Michael Ashner /s/ Alfred Sacks
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Michael Ashner, Director Alfred Sacks, Director
/s/ Murray Daly /s/ Nathan Rosenblatt
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Murray Daly, Director Nathan Rosenblatt, Director
/s/ Glenn Cohen
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Glenn Cohen, Director
