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As filed with the Securities and Exchange Commission on March 20, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NATURAL ALTERNATIVES INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 84-1007839
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
1185 Linda Vista Drive, San Marcos, CA 92069
(Address of principal executive offices) (Zip Code)
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1999 Omnibus Equity Incentive Plan
1999 Employee Stock Purchase Plan
Two Outstanding Non-Employee Director Option
Agreements outside of any plan
(Full title of the plan)
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Mark A. LeDoux
President and Chief Executive Officer
NATURAL ALTERNATIVES INTERNATIONAL, INC.
1185 Linda Vista Drive, San Marcos, CA 92069
(Name and address of agent for service)
(760) 744-7340
(Telephone number, including area code, of agent for service)
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Copies to:
David A. Fisher, Esq.
Timothy J. Fitzpatrick, Esq.
Fisher Thurber LLP
4225 Executive Square, Suite 1600
La Jolla, CA 92037
(858) 535-9400
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED(1) SHARE OFFERING PRICE REGISTRATION FEE
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1999 Omnibus Equity
Incentive Plan
Common Stock 500,000 $2.06(2) $1,030,000 $271.92(2)
1999 Employee Stock
Purchase Plan
Common Stock 150,000 $2.06(2) $ 309,000 $ 81.58(2)
Common Stock
issuable pursuant to
outstanding Non-
Employee Director
Option Agreements 20,000 $2.06(3) $ 41,200 $ 10.88(3)
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Aggregate amount of $364.38
Registration Fee
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1999 Equity Incentive Plan,
the 1999 Employee Stock Purchase Plan and the outstanding Non-Employee
Director Option Agreements outside of any plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an
increase in the number of the Registrant's outstanding shares of Common
Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the closing sale
price per share of Common Stock of Natural Alternatives International,
Inc. on March 13, 2000 as reported by the NASDAQ National Market System.
(3) Based upon the actual exercise price per share for the shares of Common
Stock underlying the outstanding Non-Employee Director Option
Agreements.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
Natural Alternatives International, Inc. (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"Commission"):
a. Our Annual Report on Form 10-K for the fiscal year ended June 30,
1999, filed with the Commission on September 28, 1999;
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b. Our Quarterly Report on Forms 10-Q for the fiscal quarters ended
September 30, 1999 and December 31, 1999, filed with the Commission on November
15, 1999 and February 15, 2000, respectively;
c. All other documents filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended ("1934 Act"), since the end of the
1998 fiscal year covered by the Annual Reports referred to in (a) above; and
d. Our Registration Statement on Form 8-A, in which there is described
the terms, rights and provisions applicable to our outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and 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 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 subsequently filed
document which also is deemed to be incorporated by reference herein modifies 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The statutes, charter provisions, Bylaws, Indemnification Agreements, or
other arrangements under which any controlling person, director or officer of
the Registrant is insured or indemnified in any manner against any liability
which he may incur in his capacity as such, are as follows:
The Delaware Corporate Law (the "Code") permits the Company to indemnify
an officer or director who was or is a party or is threatened to be made a party
to any proceeding because of his or her position, if the officer or director
acted in good faith and in a manner he or she reasonably believed to be in the
best interests of the Company. The Code authorizes the Company to advance
expenses incurred in defending any such proceedings under certain circumstances,
and if the officer or director is successful on the merits, it authorizes the
Company to indemnify the officer or director against all expenses, including
attorney's fees, incurred in connection with any such proceeding. The Company's
By-laws and Certificate of Incorporation provide that the Company shall have the
power to indemnify its officers and directors in accordance with the Code.
The Code permits the Company to limit the personal liability of its
directors for monetary damages for breaches of fiduciary duty as a director,
except for breaches that involve the director's duty of loyalty, acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law,
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and acts involving unlawful dividends or stock redemptions or transactions from
which the director derived an improper personal benefit.
Under the Company's Certificate of Incorporation and By-Laws and in
accordance with Section 145 of the Delaware law, the Company shall 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 Company) by reason of the fact that such person is or was a
director or officer of the Company, against expenses (including attorneys' fees,
judgments, fines, amounts paid in settlement in connection with such action,
suit or proceeding if such person acted in good faith in a manner the person
reasonably believed to be in or not opposed to the best interests of the Company
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe was unlawful. A similar standard of care is applicable in the case of
derivative actions, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with defense or settlement of
such an action and then, where the person is judged to be liable to the Company,
only if and to the extent that the Court of Chancery of the State of Delaware or
the court in which such action was brought, determines that such person is
fairly and reasonably entitled to such indemnity and then only for such expenses
that the court shall deem proper.
The Company's By-laws provide that the Company shall pay for the
expenses incurred by the indemnified director or officer in defending the
proceedings specified above, in advance of their final disposition, provided the
person agrees to reimburse the Company if it is ultimately determined that such
person is not entitled to indemnification. The Company may also, by action of
its Board, provide indemnification to any person who is or was one of its
employees or agents, or any person who is or was serving at the request of the
Company as a director, officer, partner, member, employee or agent of another
corporation, partnership, joint venture, trust, committee or other enterprise to
the same degree as the foregoing indemnification of director and officers. The
Company has entered into indemnity agreements with each of its current directors
and executive officers, which provide for indemnification to the fullest extent
permitted by Delaware law, including, by reason or action or inaction occurring
in the past and in circumstances in which indemnification and the advancement of
expenses are discretionary under Delaware law.
The Company presently has in effect a claims-made policy of directors
and officers liability insurance protecting its directors and officers against
liability by reason of their being or having been directors or officers.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
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Exhibit
No. Exhibit
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4 Instruments Defining Rights of Shareholders. Reference is made to
Registrant's Registration Statement on Form 8-A, which is
incorporated herein by reference pursuant to Item 3(d).
5 Opinion and Consent of Fisher Thurber LLP.*
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23.1 Consent of Independent Auditors - KPMG LLP.*
23.2 Consent of Fisher Thurber LLP is contained in Exhibit 5.*
24 Power of Attorney. Reference is made to page II-6 of this
Registration Statement.*
99.1 1999 Omnibus Equity Incentive Plan.(1)
99.2 1999 Employee Stock Purchase Plan.(1)
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* Filed herewith.
(1) Filed as an exhibit to the Company's Proxy Statement as filed with the
Securities and Exchange Commission on October 21, 1999 and incorporated
by this reference.
Item 9. Undertakings.
1. 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 1933 Act, (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, 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 clauses (1)(i) and (1)(ii) shall 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 1934 Act that are incorporated by reference
into the Registration Statement; (2) that for the purpose of determining any
liability under the 1933 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 Registrant's 1999 Omnibus Equity
Incentive Plan, 1999 Employee Stock Purchase Plan, and the common stock issued
pursuant to outstanding Non-Employee Director Option Agreements.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into 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.
3. Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or controlling persons of the Registrant
pursuant to the indemnification provisions summarized in Item 6 above, or
otherwise, the Registrant has been informed that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 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
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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 1933 Act, and will be governed by the final
adjudication of such issue.
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
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 San Diego, State of California, on this 20th day
of March, 2000.
NATURAL ALTERNATIVES INTERNATIONAL, INC.
By: /s/ Mark A. LeDoux
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Mark A. LeDoux, Chief Executive Officer, Director
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Natural Alternatives
International, Inc., a Delaware corporation, do hereby constitute and appoint
Mark A. LeDoux and Peter C. Wulff, and each of them, the lawful attorneys and
agents, with full power of substitution and resubstitution, with full power and
authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and any one of them, determine may
be necessary or advisable or required to enable said corporation to comply with
the Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Commission in connection with this Registration Statement.
Without limiting the generality of the foregoing power and authority, the powers
granted include the power and authority to sign the names of the undersigned
officers and directors in the capacities indicated below to this Registration
Statement, to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms all that said attorneys and agents, or any of them, shall do or
cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
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 dates indicated.
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Signatures Title Date
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/s/ Mark A. Le Doux Chief Executive Officer, Director March 20, 2000
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Mark A. Le Doux
/s/ Peter C. Wulff Chief Financial Officer March 20, 2000
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Peter C. Wulff Accounting Officer
/s/ Marie A. Le Doux Chairman of the Board of Directors March 20, 2000
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Marie A. Le Doux
/s/ Lee G. Weldon Director March 20, 2000
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Lee G. Weldon
/s/ J. Scott Schmidt Director March 20, 2000
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J. Scott Schmidt
/s/ Joseph E. Davis Director March 20, 2000
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Joseph E. Davis
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EXHIBIT 5
OPINION AND CONSENT OF FISHER THURBER LLP
March 20, 2000
Natural Alternatives International, Inc.
1185 Linda Vista Drive
San Marcos, CA 92069
Re: Form S-8 Registration Statement for 1999 Omnibus Equity
Incentive Plan and 1999 Employee Stock Purchase Plan and Two
Outstanding Stand Alone Options
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by you with the Securities and Exchange
Commission on or about March 15, 2000 to register a total of 670,000 shares of
common stock, .001 par value per share (the "Common Stock"), of Natural
Alternatives International, Inc., a Delaware corporation (the "Company") for
issuance pursuant to the Company's 1999 Equity Incentive Plan ("Incentive Plan")
and 1999 Employee Stock Purchase Plan ("Stock Purchase Plan"), and two
outstanding stand alone options to non-employee directors.
For purposes of rendering this opinion, we have made such legal and
factual examinations as we have deemed necessary under the circumstances and, as
part of such examination, we have examined, among other things, originals and
copies, certified and otherwise, identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed necessary
or appropriate. For the purposes of such examination, we have assumed the
genuineness of all signatures on original documents and the conformity to
original documents of all copies submitted to us.
On the basis of and relying upon the foregoing examination and
assumptions, we are of the opinion that, assuming the Registration Statement
shall have become effective pursuant to the provisions of the Securities Act of
1933, as amended, the shares of Common Stock being offered in the Registration
Statement, when issued and sold and the consideration therefore received
pursuant to the provisions of the option agreements duly authorized under the
Incentive Plan, the Stock Purchase Plan, and the two outstanding stand alone
options in accordance with the Registration Statement, will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and any amendments thereto.
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Natural Alternatives International, Inc.
March 20, 2000
Page 2
This opinion letter is rendered as of the date first written above and
we disclaim any obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company, the
Incentive Plan and Stock Purchase Plan or the Common Stock.
FISHER THURBER LLP
By: /s/ David A. Fisher
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David A. Fisher
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EXHIBIT 23.1
[KPMG LLP Letterhead]
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Natural Alternatives International, Inc.
We consent to the use of our report incorporated herein by reference in the
registration statement on Form S-8 of Natural Alternatives International, Inc.
San Diego, California
March 20, 2000
