As filed with the Securities and Exchange Commission on September 11, 1995
Registration No.33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________
AMRION, INC.
(Exact name of Registrant specified in charter)
Colorado 84-1050628
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
6565 Odell Place
Boulder, Colorado 80301 80301
(Address of Principal Executive Offices) Zip Code
AMRION, INC. 1994 NON-QUALIFIED STOCK OPTION PLAN
and
OPTIONS GRANTED PURSUANT TO INDIVIDUAL NON-QUALIFIED OPTION
AGREEMENTS
(Full title of the plan)
Mark S. Crossen
Amrion, Inc.
6565 Odell Place,
Boulder, Colorado 80301
(Name and address of agent for service)
(303) 530-2525
(Telephone number, including area code, of agent for service)
Copies to:
Raymond L. Friedlob, Esq.
John W. Kellogg, Esq.
Friedlob Sanderson Raskin Paulson & Tourtillott, LLC
1400 Glenarm Place, Suite 300
Denver, Colorado 80202
(303) 571-1400
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CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
maximum maximum
Title of offering aggregate Amount of
securities to be Amount to be price per offering registration
registered registered (1) share (2) price (2) fee
-------------------------------------------------------------------------------
Common Stock, $.0011 par 638,750 $9.13 $3,974,485 $1,371
value
================================================================================
(1) This Registration Statement is being filed to register 511,000
shares of Common Stock which may be issued pursuant to the
Registrant's 1994 Non-Qualified Stock Option Plan (the "Plan")
and 127,750 shares of Common Stock which may be issued
pursuant to individual non-qualified options granted to
certain officers, employees and employee directors of the
Registrant (the "Non-Qualified Options"), plus such
indeterminable number of shares of Common Stock as may be
issuable by reason of the anti-dilution provisions of the
options granted pursuant to the Plan and the Non-Qualified
Options.
(2) In accordance with Rule 457(h), the fee has been calculated as
follows: 20,250 shares at $2.00 per share, 29,500 shares at
$3.33 per share; 5,000 shares at $5.75 per share, 511,000
shares at $6.20 per share, 13,000 shares at $7.00 per share
and 60,000 shares at $9.13 per share.
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PART I INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.
Documents containing information related to the Amrion, Inc.
(the "Registrant") 1994 Non-Qualified Stock Option Plan (the
"Plan") and the Individual Non-Qualified Option Agreements (the
"Non-Qualified Options") which are not filed as a part of this
Registration Statement (the "Registration Statement") and documents
incorporated by reference in response to Item 3 of Part II of this
Registration Statement, which taken together constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended (the "Securities Act") will be
sent or given to the holders of the stock options issued under the
Plan and the holder of the Non-Qualified Options (the "Optionees")
by the Registrant as specified by Rule 428(b)(1) of the Securities
Act.
Item 2. Registrant Information and Employee Plan Annual
Information.
As required by this Item, the Registrant will provide to the
Optionees a written statement advising them of the availability
without charge, upon written or oral notice, of documents
incorporated by reference in Item 3 of Part II of this Registration
Statement and of documents required to be delivered pursuant to
Rule 428(b) under the Securities Act. The statement will include
the address listing the title or department and telephone number to
which the request is to be directed.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by the
Registrant are incorporated into this Registration Statement by
this reference:
(1) Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1994, as amended August 11, 1995
on Form 10-KSB/A;
(2) Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1995;
(3) Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1995
(4) The description of the Common Stock contained in the
Exhibits to the Registrant's Registration Statement on
Form 8-A (No. 0-18476) as filed with the Commission on
April 23, 1990.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all shares offered
hereunder have been sold or 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 such
documents.
Item 4. Description of Securities.
No description of the class of securities to be offered is
required under this item because the class of securities to be
offered is registered under Section 12 of the Exchange Act
(Commission File No. 0-18476).
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Colorado Business Corporation Act (the "CBCA") provides
for the indemnification of the Registrant's directors, officers,
employees, fiduciaries and agents against liabilities which they
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may incur in such capacities. A summary of the circumstances in
which such indemnification is allowable is provided below, but that
description is qualified in its entirety by reference to the
relevant section of the CBCA.
In general, the CBCA provides that any director may be
indemnified, by providing advances or reimbursements against
liabilities (including the obligation to pay a judgment,
settlement, penalty, fine or reasonable expense), incurred in a
proceeding (including any civil, criminal or investigative
proceeding whether threatened, pending or completed) to which the
director was made a party because he is or was a director, except
that, if the proceeding is brought by or in the right of the
Registrant, indemnification is permitted only with respect to
reasonable expenses incurred in connection with the proceeding.
The CBCA prohibits indemnification of a director in connection with
a proceeding brought by or in the right of the Registrant in which
a director is adjudged liable to the Registrant, or in connection
with any proceeding charging improper personal benefit to the
director in which the director is adjudged liable for receipt of an
improper personal benefit.
Indemnity may be provided if the director's actions resulting
in the liability: (i) were taken in good faith; (ii) were
reasonably believed to have been in the Registrant's best interest
with respect to actions taken in the director's official capacity;
(iii) were reasonably believed not to be opposed to the
Registrant's best interest with respect to actions other than those
taken in the director's official capacity; and (iv) with respect to
any criminal action, the director had no reasonable cause to
believe his or her conduct was unlawful. Indemnification may be
awarded only after the applicable standard of conduct has been met
by the director to be indemnified as determined by (i) a majority
vote of a quorum of the Board of Directors or, if a quorum cannot
be obtained, by committee thereof consisting of directors not
parties to the proceeding; (ii) by independent legal counsel
selected by the Board of Directors; or (iii) by the shareholders.
The CBCA further provides that unless limited by the
Registrant's articles of incorporation, a director or officer who
is wholly successful, on the merits or otherwise, in defense of any
proceeding to which he was a party, is entitled to receive
indemnification against reasonable expenses, including attorneys'
fees, incurred in connection with the proceeding. The Registrant's
Amended and Restated Articles of Incorporation do not limit the
foregoing provisions.
The Registrant may indemnify or advance expenses to an
officer, employee, fiduciary or agent who is not a director to a
greater extent than permitted for indemnification of directors, if
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consistent with law and if provided for by its articles of
incorporation, bylaws, resolution of its shareholders or directors
or in a contract. The provision of indemnification to persons
other than directors is subject to such limitations as may be
imposed on general public policy grounds.
Unless limited by the Registrant's articles of incorporation,
upon petition by a director or officer, a court may order the
Registrant to indemnify such director or officer against
liabilities arising in connection with any proceeding. A court may
order the Registrant to provide such indemnification, whether or
not he was entitled to indemnification by the Registrant. To order
indemnification, the court must determine that the director or
officer is fairly and reasonably entitled to indemnification in
light of the circumstances. With respect to liability incurred by
a director or officer, or in any proceeding where liability results
on the basis that a personal benefit was received improperly, a
court may only require that the director or officer be indemnified
as to reasonable expenses incurred. The Registrant's Amended and
Restated Articles of Incorporation do not limit the foregoing
provisions.
The CBCA specifies that any provisions for indemnification of
or advances for expenses to directors which may be contained in the
Registrant's articles of incorporation, bylaws, resolutions of its
shareholders or directors, or in a contract (except for insurance
policies) shall be valid only to the extent such provisions are
consistent with the CBCA and any limitations upon indemnification
set forth in the articles of incorporation.
The CBCA also grants the power to the Registrant to purchase
and maintain insurance policies which protect any director,
officer, employee, fiduciary or agent against any liability
asserted against or incurred by them in such capacity arising out
of their status as such. Such policies may provide for
indemnification whether or not the corporation would otherwise have
the power to provide for it. No such policies have been obtained
by the Registrant.
Article XII of the Registrant's Articles of Incorporation, as
amended, provides that the Registrant shall indemnify its directors
to the maximum extent permitted by statute and its officers,
employees or agents who are not directors to the maximum extent
permitted by law or to a greater extent as may be consistent with
law and provided for by resolution of the Registrant's shareholders
or directors, or in a contract.
Article XIII of the Registrant's Articles of Incorporation, as
amended, provides for the elimination of personal liability for
monetary damages for the breach of fiduciary duty as a director
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<PAGE>
except for liability (i) resulting from a breach of the director's
duty of loyalty to the Registrant or its shareholders; (ii) for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of the law; (iii) for approving
payment of a dividend, a stock repurchase, a distribution of assets
to shareholders during liquidation or the making or guaranteeing of
a loan to a director, to the extent that any such actions are
illegal under the CBCA; or (iv) for any transaction from which a
director derives an improper personal benefit.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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
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 that the matter has been settled by con-
trolling precedent, submit to a court of appropriate jurisdiction
the question of 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 Claim
Not Applicable
Item 8. Exhibits.
The following is a complete list of exhibits filed as a part
of this Registration Statement, which Exhibits are incorporated
herein.
4.1 Amended Articles of Incorporation for Amrion, Inc.
5.1 Opinion of Counsel and Consent of Friedlob Sanderson Raskin
Paulson & Tourtillott, LLC
24.1 Consent of Friedlob Sanderson Raskin Paulson & Tourtillott -
See Exhibit 5.1.
24.2 Consent of BDO Seidman, LLP
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<PAGE>
Item 9 Undertakings
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:
(i) to include any prospectus required by section 10(a)(3) of the
Securities 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 the information in the
registration statement.
That, for the purpose of determining any liability under the
Securities 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.
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.
That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Exchange Act) 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.
<PAGE>
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 the City of
Boulder, State of Colorado, on September 11, 1995.
AMRION, INC.
By /s/ Mark S. Crossen
Mark S. Crossen, Chief
Executive Officer, President
and Principal Executive Officer
By /s/ Jeffrey S. Williams
Jeffrey S. Williams, Chief
Financial Officer, Treasurer,
Secretary and Principal
Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signatures Title Date
/s/ Mark S. Crossen Director September 11, 1995
Mark S. Crossen
/s/ Jeffrey S. Williams Director September 11, 1995
Jeffrey S. Williams
/s/ Theodore W. Brin Director September 11, 1995
Theodore W. Brin
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ARTICLES OF INCORPORATION
OF
AMRION, INC.
ARTICLE I.
NAME OF CORPORATION
The name of the Corporation is Amrion, Inc.
ARTICLE II.
(NOT USED)
ARTICLE III.
(NOT USED)
ARTICLE IV.
DIRECTORS
The number of Directors shall be fixed in accordance with the
Bylaws.
ARTICLE V.
DURATION OF CORPORATION
The Corporation shall exist perpetually unless dissolved
according to law.
ARTICLE VI.
PURPOSES AND POWERS
Section 6.1 Purposes. The purpose of the Corporation shall
be to transact all lawful business or businesses for which
Corporations may be incorporated pursuant to applicable state law.
Section 6.2 Powers. In addition to the powers specifically
provided by state law, the Corporation shall have and may exercise
all powers necessary or convenient to effect its purpose.
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ARTICLE VII.
CAPITAL
The total number of shares of all classes of capital stock
which the corporation shall have authority to issue is 10,000,000
shares of Common Stock, $.0011 par value per share. The holders of
Common Stock shall have and possess all rights as shareholders of
the corporation, including such rights as may be granted elsewhere
by these Articles of Incorporation.
The capital stock, after the amount of the subscription price
has been paid in, shall not be subject to assessment or any other
liability to pay the debts of the corporation.
Any stock of the corporation may be issued for money,
property, services rendered, labor done, cash advances for the
corporation, for any other assets of value in accordance with the
action of the Board of Directors, or other consideration permitted
under the Colorado Business Corporation Act. The judgment of the
Board of Directors as to value received in return for the issuance
of shares shall be conclusive and said shares, when issued, shall
be fully paid and nonassessable.
ARTICLE VIII.
VOTING
No cumulative voting shall be allowed.
ARTICLE IX.
PRE-EMPTIVE RIGHTS
The shareholders shall have no pre-emptive rights to acquire
any unissued or treasury shares of stock of the Corporation,
securities convertible into shares, or securities carrying stock
purchase options or warrants to acquire any unissued or treasury
shares of stock of the Corporation.
ARTICLE X.
SHARE TRANSFER RESTRICTIONS
The Corporation shall have the right to impose restrictions
upon the transfer of any of its authorized shares or any interest
therein. The Board of Directors is hereby authorized on behalf of
the Corporation to exercise the Corporation's right to so impose
such restrictions by agreement or otherwise.
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ARTICLE XI.
TRANSACTIONS WITH INTERESTED OFFICERS AND DIRECTORS
No conflicting interest transaction (as that term is defined
in Section 7-108-501 of the Act) shall be void or voidable or be enjoined,
set aside, or give rise to an award of damages or other sanctions
in a proceeding by a shareholder or by or in the right of the
corporation, solely because the conflicting interest transaction
involves a director of the Corporation or an entity in which a
director of the Corporation is a director or officer or has a
financial interest or solely because the director is present at or
participates in the meeting of the Corporation's Board of Directors
or of the committee of the Board of Directors which authorizes,
approves, or ratifies the conflicting interest transaction or
solely because the director's vote is counted for such purpose if
the requirements of Section 7-108-501(2) of the Act are met.
ARTICLE XII.
INDEMNIFICATION OF DIRECTORS
OFFICERS, EMPLOYEES, FIDUCIARIES AND AGENTS
All directors or other persons acting on behalf of the
Corporation in an official capacity (as that term is defined in Section 7-
109-101(5) of the Act) shall be indemnified by the Corporation to
the maximum extent permitted by law, including (without limitation)
Article 109 of the Act. Such indemnification will include (without
limitation) expenses reasonably incurred by or imposed upon him in
connection with or arising out of any action, suit or proceeding in
which he may be involved or to which he may be made a party by
reason of his being or having been a Director, Officer, Employee,
fiduciary or Agent of the Corporation, or at its request of any
other corporation of which it is a shareholder or creditor or other
person acting on behalf of the Corporation in an official capacity
(whether or not he continues to be a Director, Officer, Employee,
fiduciary or Agent or continuing to act in an official capacity at
the time of imposing or incurring such expenses). The foregoing
right of indemnification shall not be exclusive of other rights to
which he may be entitled under applicable state law
ARTICLE XIII.
LIMITATION OF LIABILITY
A director of this Corporation shall not be liable to this
Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director except for liability (i) for any
breach of the director's duty of loyalty to this Corporation or to
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its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law,
(iii) for acts specified in Section 7-108-403 of the Act, or (iv) any
transaction from which the director directly or indirectly received
an improper personal benefit.
FRIEDLOB SANDERSON RASKIN PAULSON & TOURTILLOTT, LLC
1400 Glenarm Place, Suite 300
Denver, Colorado 80202
September 12, 1995
Amrion, Inc.
6565 Odell Place
Boulder, Colorado 80301
Re: Form S-8 Registration Statement - Opinion of Counsel
Gentlemen:
We are counsel to the Company. This Opinion Letter is
provided at your request in connection with the filing of the
Company's registration statement on Form S-8 to register certain
shares of its common stock, $.0011 par value (the "Common Stock")
to be issued upon the exercise of options granted pursuant to the
Company's 1994 Non-Qualified Stock Option Plan (the "Plan") and the
Individual Non-Qualified Stock Option Agreements between the
Company and certain employees, officers and employee directors (the
"Non-Qualified Options")(the "Registration Statement"). Except as
otherwise indicated herein, capitalized terms used in this Opinion
Letter are defined in the Accord (as defined below).
This Opinion Letter is governed by, and shall be interpreted
in accordance with, the Legal Opinion Accord (the "Accord") of the
ABA Section of Business Law (1991). As a consequence, it is
subject to a number of qualifications, exceptions, definitions,
limitations on coverage and other limitations, all as more
particularly described in the Accord, and this Opinion Letter
should be read in conjunction therewith. The law covered by the
opinions expressed herein is limited to the Law of the State of
Colorado and federal bankruptcy and securities laws.
Based upon and subject to the foregoing, we are of the opinion
that, subject to payment of the exercise price therefor and
compliance with the other provisions of the Plan, the options
granted thereunder, and each of the Non-Qualified Options, as the
case may be, the Common Stock issuable upon exercise of the options
granted under the Plan and the Non-Qualified Options will be duly
and validly issued as fully paid and non-assessable shares of
Common Stock.
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Amrion, Inc.
September 12, 1995
Page 2
This Opinion Letter may be relied upon by you only in
connection with the Registration Statement and may not be used or
relied upon by you or any other person for any purpose whatsoever,
except to the extent authorized in the Accord, without in each
instance a prior written consent.
In accordance with the foregoing paragraph, we hereby consent
to such use of our name in such Registration Statement and to the
filing of this opinion as Exhibit 5.1 thereto. In giving this
consent, we do not thereby admit that we come within the category
of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the Rules and Regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
Friedlob Sanderson Raskin Paulson &
Tourtillott, LLC
CONSENT OF
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Amrion, Inc.
Boulder, Colorado
We hereby consent to the incorporation by reference in this Registration
Statement of our report dated March 14, 1995 relating to the consolidated
financial statements of Amrion, Inc. and subsidiaries appearing in the Company's
Annual Report on Form 10-KSB for the year ended December 31, 1994.
BDO SEIDMAN, LLP
Denver, Colorado
August 31, 1995
