As filed with the Securities and Exchange Commission on November 12, 1996
Registration No.333-15939
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8/A
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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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
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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<TABLE>
CALCULATION OF REGISTRATION FEE
==============================================================================================
<S> <C> <C> <C> <C> <C>
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 24,200 (2) $252,440 $100
value
==============================================================================================
(1) This Registration Statement is being filed to register 27,200
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
Non-Qualified Options.
(2) In accordance with Rule 457(h), the fee has been calculated as follows:
1,200 shares at $6.20 per share; 3,000 shares at $7.50 per share, 8,500
shares at $9.00 per share, 3,000 shares at $11.00 per share, 3,500
shares at $13.00 per share and 5,000 shares at $13.50 per share.
</TABLE>
<PAGE>
PART I INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.
Documents containing information related to the Amrion, Inc. (the
"Registrant") 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 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.
<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-K for the fiscal
year ended December 31, 1995;
(2) Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1996;
(3) Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1996;
(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 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.
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
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
controlling 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.
3.1 Amended Articles of Incorporation of Amrion, Inc.
5.1 Opinion of Counsel and Consent of Friedlob Sanderson Raskin
Paulson & Tourtillott, LLC
23.1 Consent of Friedlob Sanderson Raskin Paulson & Tourtillott -
See Exhibit 5.1.
23.2 Consent of BDO Seidman, LLP
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.
<PAGE>
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.
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 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 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 whether such indemnification by its is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<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/A 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 December 3,
1996.
AMRION, INC.
By
Mark S. Crossen, Chief
Executive Officer, President
and Principal Executive Officer
By
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
Director December 3, 1996
Mark S. Crossen
Director December 3, 1996
Jeffrey S. Williams
Director December 3, 1996
Theodore W. Brin
Director December 3, 1993
David E. Houseman
Director December 3, 1996
Leslie G. Taylor
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
AMRION, INC.
These Amended and Restated Articles of Incorporation were approved by
the shareholders of AMRION, INC. on November 17, 1995 and the number of shares
that voted for these Amended and Restated Articles of Incorporation and the
votes cast for the amendments by each voting group entitled to vote separately
on the amendments was sufficient for approval by that voting group. From this
date forward these Amended and Restated Articles of Incorporation shall
supersede the original Articles of Incorporation and all amendments and
supplements thereto. These Amended and Restated Articles of Incorporation
correctly set forth the provisions of the Articles of Incorporation, as amended.
ARTICLE I
NAME OF CORPORATION
The name of the Corporation is Amrion, Inc.
ARTICLE II
(ELIMINATED)
ARTICLE III
(ELIMINATED)
ARTICLE IV
DIRECTORS
The number of Directors shall be fixed in accordance with the Bylaws.
-1-
<PAGE>
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.
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.
(a) 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.
(b) 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.
-2-
<PAGE>
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.
ARTICLE XI
TRANSACTIONS WITH INTERESTED OFFICERS AND DIRECTORS
No conflicting interest transaction (as that term is defined in
ss.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 ss.7-108-501(2) of the Act are met.
-3-
<PAGE>
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 ss.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 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 ss.7-108-403 of the Act, or (iv) any
transaction from which the director directly or indirectly received an improper
personal benefit.
ARTICLE XIV
MEETINGS OF SHAREHOLDERS
Section 14.1 Quorum. Meetings of shareholders shall be held at such
time and place as provided in the Bylaws of the corporation. At all meetings of
the shareholders, one-third of all shares entitled to vote at the meeting shall
constitute a quorum.
-4-
<PAGE>
Section 14.2 Voting. With respect to any action to be taken by
shareholders of this Corporation which pursuant to the Act or any successor
statute requires the vote of two-thirds of the outstanding shares entitled to
vote thereon, a vote or concurrence of the holders of a majority of the
outstanding shares of the shares entitled to vote thereon, or of any class or
series, shall be required.
On behalf of AMRION, INC., the undersigned, by their signatures below,
do hereby confirm, under penalties of perjury, that the foregoing Amended and
Restated Articles of Incorporation of AMRION, INC. constitute the act and deed
of AMRION, INC. and the facts stated herein are true.
AMRION, INC.
By /s/ Mark S. Crossen
Mark S. Crossen, President
[SEAL]
By /s/ Jeffrey S. Williams
Jeffrey S. Williams, Secretary
-5-
December 3, 1996
Amrion, Inc.
6565 Odell Place
Boulder, CO 80301
Re: Registration Statement on Form S-8 Pos
Opinion of Counsel
Ladies and Gentlemen:
As counsel for Amrion, Inc., a Colorado corporation (the
"Corporation"), we have examined the Articles of Incorporation, as amended, the
bylaws and minutes of the Corporation and such other corporate records,
documents, certificates and other instruments as in our judgment we have deemed
relevant for the purposes of this opinion. We have also, as such counsel,
examined the Registration Statement on Form S-8, as amended to date (the
"Registration Statement"), covering the registration of shares of common stock,
$.001 par value per share underlying options (the "Options") issued by the
Corporation. Based upon the foregoing, we are of the opinion that:
1. The common stock is duly and validly authorized and a
sufficient number of shares has been reserved for issuance upon
exercise of the Options.
2. Upon exercise of the Options in accordance with their terms, the
common stock issued will be legally issued as fully paid and non-assessable
shares of the Corporation.
We hereby consent to the use of our name in the 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,
/s/ 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 State-
ment on Form S-8A, of our report dated March 8, 1996 relating to the
consolidated financial statements of Amrion, Inc. and subsidiary appearing in
the Company's Annual Report on Form 10-K for the year ended December 31, 1995.
/s/ BDO SEIDMAN, LLP
Denver, Colorado
November 20, 1996
