Registration No. 33-66282
The Registrant Requests That This Post-Effective Amendment No. 3
to the Registration Statement Become Effective Upon Filing Pursuant
To Securities Act Rule 464
As Filed With The Securities and Exchange Commission on August 24, 1998
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
POST-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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REXALL SUNDOWN, INC.
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(Exact name of Registrant as Specified in Its Charter
Florida 59-1688986
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(State or other Jurisdiction I.R.S. Employer
of Incorporation or Organization) Identification No.)
6111 Broken Sound Parkway, N.W., Boca Raton, Florida 33487
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(Address of Principal Executive Offices) (Zip Code)
Amended and Restated 1993 Employee Stock Purchase Plan
(Full Title of the Plan)
Richard S. Werber
Rexall Sundown, Inc.
Vice President-Legal Affairs, General Counsel and Secretary
6111 Broken Sound Parkway, N. W.
Boca Raton, Florida 33487
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(Name and Address of Agent for Service)
(561) 241-9400
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(Telephone Number, Including Area Code, of Agent for Service)
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
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No. Description
- -- -----------
4.1 Amended and Restated 1993 Employee Stock Purchase Plan (1)
5 Opinion of Greenberg Traurig Hoffman Lipoff Rosen & Quentel, P.A.
as to the legality of the securities being registered (2)
24 Consent of PricewaterhouseCoopers LLP (1)
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(1) Filed herewith.
(2) Previously filed.
2
<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
Post-Effective Amendment No. 3 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Boca Raton,
State of Florida, on the 3rd day of August, 1998.
REXALL SUNDOWN, INC.
By: /s/ Carl DeSantis
------------------------------------
Carl DeSantis, Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective
Amendment No. 3 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Carl Desantis Chairman of the Board August 3, 1998
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Carl DeSantis
/s/ Christian Nast Director and Chief Executive Officer August 3, 1998
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Christian Nast
/s/ Damon DeSantis Director and President August 3, 1998
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Damon DeSantis
Vice President - Finance, Chief August 3, 1998
/s/ Geary Cotton Financial Officer, Treasurer and
- -------------------------------- Chief Accounting Officer
Geary Cotton
/s/ Nickolas Palin Director and Senior Executive Vice August 3, 1998
- -------------------------------- President
Nickolas Palin
/s/ Dean DeSantis Director August 3, 1998
- --------------------------------
Dean DeSantis
_______________________________ Director August 3, 1998
Stanley Leedy
_______________________________ Director August 3, 1998
Melvin Stith
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
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4.1 Amended and Restated 1993 Employee Stock Purchase Plan (1)
5 Opinion of Greenberg Traurig Hoffman Lipoff Rosen & Quentel, P.A.
as to the legality of the securities being registered (2)
24 Consent of PricewaterhouseCoopers (1)
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(1) Filed herewith.
(2) Previously filed.
Exhibit 4.1
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REXALL SUNDOWN, INC.
AMENDED AND RESTATED
1993 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I - PURPOSE OF THE PLAN
1.01. Purpose of the Plan. The purpose of the Plan is to provide
employees of Rexall Sundown, Inc. (the "Corporation") and participating
Subsidiary Corporations with the opportunity to purchase shares (the "Shares")
of the Common Stock of the Corporation through payroll deductions. It is the
intention of the Corporation to have the Plan qualify as an "employee stock
purchase plan" under Section 423 of the Code. The provisions of the Plan shall
be construed, and the Plan should be administered, so as to extend and limit
participation in a manner consistent with the requirements of that section of
the Code. All number of Shares reflect the two-for-one stock split paid on
October 18, 1993 in the form of a stock dividend, the three-for-two stock split
paid on April 4, 1996 in the form of a stock dividend and the two-for one stock
split paid on October 23, 1997 in the form of a stock dividend.
ARTICLE II - DEFINITIONS
Whenever used in this Plan, the following terms shall have the meanings
set forth below unless otherwise expressly provided. When the defined meaning is
intended, the term is capitalized. The definition of any term in the singular
shall also include the plural.
2.01. "Base Pay" means regular straight-time earnings excluding
payments for overtime, shift premium, bonuses and other special payments,
commissions and other marketing incentive payments.
2.02 "Board" means the Corporation's Board of Directors.
2.03 "Code" means the Internal Revenue Code of 1986, as amended, or as
it may be amended from time to time. A reference to a particular section of the
Code shall also be deemed to refer to the regulations under such section.
2.04 "Common Stock" means the common stock, $.01 par value per share,
of the Corporation.
2.05. "Effective Date" means March 15, 1993 which was the date as of
which this Plan was approved by the shareholders of the Corporation and the
registration process required under the Securities Act of 1933, as amended, was
completed.
2.06. "Employee" means any person who is employed by the Corporation or
any Subsidiary Corporation and is regularly scheduled to work at least twenty
(20) hours per week.
2.07. "Participation Period" means a calendar month.
2.08 "Plan" means the Rexall Sundown, Inc. Amended and Restated 1993
Employee Stock Purchase Plan, as amended from time to time.
2.09. "Subsidiary Corporation" means any present or future corporation
which (i) would be a "subsidiary corporation" of the Corporation as that term is
defined in Section 424(f) of the Code and (ii) is designated as a participant in
the Plan by the Committee.
ARTICLE III - ADMINISTRATION OF THE PLAN
3.01. The Committee. The Plan shall be administered by a committee (the
"Committee") which shall be appointed by the Board.
<PAGE>
3.02. Authority of the Committee. Subject to the express provisions of
this Plan, the Committee shall have authority to administer the Plan in
accordance with its terms, to adopt rules and regulations as it may deem
appropriate to administer the Plan, to make determinations and interpretations
which it deems consistent with the Plan's provisions, which interpretations and
determinations shall be final and binding upon all parties, including the
Corporation or any Subsidiary Corporation, its respective shareholders and
employees. No member of the Board or the Committee shall be liable for any
action or determination made in good faith with respect to the Plan.
ARTICLE IV - ELIGIBILITY AND PARTICIPATION
4.01. Initial Eligibility. Subject to Section 4.04 below, all Employees
of the Corporation or any Subsidiary Corporation are eligible to participate in
the Plan on the first day of a Participation Period following the commencement
of his or her employment with the Corporation or Subsidiary Corporation.
4.02. Leave of Absence. For purposes of participation in the Plan, a
person on leave of absence shall be deemed to be an Employee for the first
ninety (90) days of such leave of absence and such Employee's employment shall
be deemed to have terminated at the close of business on the 90th day of such
leave of absence unless such Employee shall have returned to regular full-time
or part-time employment (as the case may be) prior to the close of business on
such 90th day. Termination by the Corporation or any Subsidiary Corporation of
any Employee's leave of absence, other than termination of such leave of absence
on return to full-time or part-time employment, shall terminate an Employee's
employment for all purposes of the Plan and shall terminate such Employee's
participation in the Plan.
4.03. Commencement of Participation. An eligible Employee who wishes to
participate in the Plan (the "Participant") shall execute the appropriate form
to be furnished by the Corporation or any Subsidiary Corporation authorizing and
instructing the Corporation or any Subsidiary Corporation to deduct a specified
amount from his or her Base Pay to be applied to the purchase of Shares under
the Plan. The deduction so authorized will be withheld from each Participant's
Base Pay or such other method as the Committee may select. Employees becoming
eligible to participate in the Plan may initiate participation as of the first
day of the Participation Period following their employment with the Corporation
or any Subsidiary Corporation. Payroll deductions for any period may be
terminated at any time by a Participant, provided that the appropriate form is
received by the Corporation or any Subsidiary Corporation not less than fifteen
(15) days prior to the end of the appropriate pay period. Payroll deductions
from a Participant's Base Pay shall commence on the first pay period following
the beginning of the first Participation Period at which Employee has been
employed with the Corporation or any Subsidiary Corporation, provided that the
Corporation or any Subsidiary Corporation has received Participant's enrollment
form.
4.04. Restrictions on Participation. Notwithstanding any provisions of
the Plan to the contrary, no Employee shall participate in the Plan during any
Participation Period:
(a) if, immediately after an option is granted under the Plan pursuant
to Section 6.01 hereof, such Employee would own Shares, and/or hold outstanding
options to purchase Shares, possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Corporation or any
Subsidiary Corporation (for purposes of this paragraph, the rules of Section
424(d) of the Code shall apply in determining Share ownership of any Employee);
or
(b) if, immediately after an option is granted under the Plan pursuant
to Section 6.01 hereof, Employee would have purchased Shares under this Plan or
any other employee stock purchase plan of the Corporation or any Subsidiary
Corporation that is qualified under Section 423 of the Code at a rate which
exceeds $25,000 of fair market value of the Shares (determined as of the date
such option is granted) for each calendar year.
ARTICLE V - PAYROLL DEDUCTIONS
5.01. Amount of Deduction. At the time a Participant submits his or her
completed authorization form for payroll deduction, he or she shall elect to
have deductions made from his or her Base Pay on each payday during the time he
or she is a Participant in the Plan specified as a percentage of Participant's
Base Pay equal to 1, 2, 3, 4, 5, 6, 7, 8, 9, or 10% of Participant's Base Pay
for the applicable pay period. Payroll deductions shall not be less than $10.00
per pay period. The maximum number of Shares a Participant may purchase during
any Participation Period shall be five hundred (500) Shares,
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<PAGE>
subject to adjustment upon changes in capitalization of the Corporation as
provided in Section 10.04.
5.02. Participant's Account. All payroll deductions made for a
participant shall be credited to his or her account under the Plan. A
Participant may not make any separate cash payment into such account except when
on leave of absence and then only as provided in Section 5.04.
5.03. Changes in Payroll Deductions. A Participant may discontinue
participation in the Plan as provided in Article VII, and may only make other
changes including, but not limited to, changes to the amount of the
Participant's payroll deduction no more than four (4) times per annum.
5.04. Leave of Absence. If a Participant goes on a leave of absence,
such Participant shall have the right to elect (a) to withdraw the balance in
his or her account pursuant to Section 7.02, (b) to discontinue contributions to
the Plan but remain a Participant in the Plan, or (c) remain a Participant in
the Plan during such leave of absence, authorizing deductions to be made from
payments by the Corporation to the Participant during such leave of absence and
undertaking to make cash payments to the Plan at the end of each payroll period
to the extent that amounts payable by the Corporation to such Participant are
insufficient to meet such Participant's authorized Plan deductions.
ARTICLE VI - PURCHASING COMMON STOCK
6.01 Grant of Option. On the first day of each Participation Period,
each Employee shall be granted an option to purchase on the dates provided in
Section 6.02 hereof (at the applicable purchase price provided in Section 6.03
hereof) up to a number of shares of the Corporation's Common Stock determined by
dividing the amount of such Employee's payroll deductions accumulated prior to
the date of purchase and retained in the Employee's account as of the date of
purchase by the applicable purchase price; provided that in no event shall a
Employee be permitted to purchase during each Participation Period more than
five hundred (500) shares (subject to adjustment upon changes in capitalization
of the Corporation as provided in Section 10.04), and provided further that such
purchase shall be subject to the limitations of Section 4.04 hereof. The option
shall expire on the last day of each Participation Period.
6.02. Automatic Deduction. Unless a Participant gives written notice to
the Corporation as hereinafter provided, his or her election to purchase Shares
with the proceeds from his or her payroll deductions made during any month will
be deemed to have been executed automatically on the first trading day of the
next following month for the purchase of the number of full Shares which the
amounts in his or her account at that time will purchase at the applicable
price.
6.03. Share Price. The price of the Shares purchased on the date of
purchase pursuant to Section 6.01 hereof shall be eighty-five percent (85%) of
either (a) the closing price of the Corporation's Common Stock on the Nasdaq
National Market System if the Corporation issues such Shares, or (b) the actual
purchase price of the Corporation's Common Stock on the Nasdaq National Market
System if the Corporation purchases such Shares on the open market. If the
Common Stock of the Corporation is not traded on any of the aforesaid dates for
which actual or closing prices of the Common Stock are to be determined, then
reference shall be made to the fair market value of the Shares on that date, as
determined on such basis as shall be established or specified for the purpose by
the Committee.
6.04. Withdrawal of Account. By written notice to the Human Resources
Department of the Corporation at any time, a Participant may elect to withdraw
all of the accumulated payroll deductions in his or her account at such time.
6.05. Delivery of Shares. As soon as reasonably practicable, the Shares
purchased under Section 6.01 above, shall be credited to Participant's account
at the offices of the transfer agent designated by the Committee. Physical
delivery of the Share certificates shall not be required.
ARTICLE VII - WITHDRAWAL
7.01. In General. As indicated in Section 6.04, a Participant may
withdraw payroll deductions credited to his or her account under the Plan at any
time by giving written notice to the Human Resources Department of the
Corporation. All of the Participant's payroll deductions credited to his or her
account will be paid to him or her promptly after receipt of his or her notice
of withdrawal, and no further payroll deductions will be made from his or her
Base Pay. The Corporation may,
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<PAGE>
at its option, treat any attempt to borrow by a Participant on the security of
his or her accumulated payroll deductions as an election, under Section 6.04 to
withdraw such deductions.
7.02. Effect on Subsequent Participation. A Participant's
discontinuation of his or her participation in the Plan will not have any effect
upon his or her eligibility to resume his or her participation in the Plan, or
in any similar plan which may hereafter be adopted by the Corporation, upon the
beginning of the next Participation Period.
7.03. Termination of Employment. Upon termination of the Participant's
employment for any reason, including retirement (but excluding death while in
the employ of the Corporation or continuation of a leave of absence for a period
beyond ninety (90) days), the payroll deductions credited to his or her account
will be returned to him or her, or, in the case of his or her death subsequent
to the termination of his employment, to the person or persons entitled thereto
under Section 10.01.
7.04. Termination of Employment Due to Death. Upon termination of the
Participant's employment because of his or her death, his or her beneficiary (as
described in Section 10.01) shall have the right to elect, by written notice
given to the Human Resources Department of the Corporation prior to expiration
of a period of sixty (60) days commencing with the date of the death of the
Participant, either:
(a) to withdraw all of the payroll deductions credited to the
Participant's account under the Plan, or
(b) to continue to purchase Shares under the Plan on the regularly
scheduled date next following the date of the Participant's death for the
purchase of the number of full Shares which the accumulated payroll deductions
in the Participant's account at the date of the Participant's death will
purchase at the applicable price, and any excess in such account will be
returned to said beneficiary, without interest.
In the event that no such written notice of election is duly received
by the office of the Human Resources Department of the Corporation, the
beneficiary shall automatically be deemed to have elected, pursuant to paragraph
(b), to purchase the Shares which would have been purchased for Participant's
account absent the death of Participant.
7.05. Leave of Absence. A Participant on leave of absence shall,
subject to the election made by such Participant pursuant to Section 5.04,
continue to be a Participant in the Plan so long as such Participant is on
continuous leave of absence. A Participant who has been on leave of absence for
more than ninety (90) days and who therefore is not an Employee for the purpose
of the Plan shall not be entitled to participate in the Plan commencing after
the 90th day of such leave of absence. Notwithstanding any other provisions of
the Plan, unless a Participant on leave of absence returns to regular full-time
or part-time employment with the Corporation or any Subsidiary Corporation at
the earlier of (a) the termination of such leave of absence or (b) three months
from the 90th day of such leave of absence, such Participant's participation in
the Plan shall terminate on whichever of such dates first occurs.
7.06. Change of Control. Upon the occurrence of a change in control of
the Corporation, the payroll deductions credited to a Participant's account, if
any, will be returned to the Participant, without interest. Upon the dissolution
or liquidation of the Corporation or upon a reorganization, merger or
consolidation of the Corporation with one or more corporations in which the
Corporation is not the surviving corporation, or upon the sale of substantially
all the property or stock of the Corporation, a Participant shall be entitled to
receive at the next date on which Shares would normally be purchased under the
Plan, cash, securities and/or property which a holder of one share of the
Corporation's common stock was entitled to receive upon and at the time of such
dissolution or liquidation or other terminating event. No assurance can be given
to any Participant that if such events occur that they will receive any cash or
other distribution.
ARTICLE VIII - NO PAYMENT OF INTEREST
8.01 Payment of Interest. No interest will be paid or allowed on any
money paid into the Plan or credited to the account of any Participant.
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<PAGE>
ARTICLE IX - AVAILABLE SHARES OF COMMON STOCK
9.01. Maximum Shares. The maximum number of Shares which may be issued
under the Plan, subject to adjustment upon changes in capitalization of the
Corporation as provided in Section 10.04, shall be 1,500,000 Shares. These
Shares may be authorized and unissued Shares or may be Shares issued and
subsequently acquired by the Corporation in the open market.
9.02. Registration of Stock. Shares to be delivered to a Participant
under the Plan will be registered in the name of the Participant.
9.03. Restrictions on Exercise. The Board may, in its discretion,
require as conditions to the purchase of Shares under the Plan that either:
(a) a Registration Statement under the Securities Act of 1933, as
amended, with respect to said Shares shall be effective; or
(b) the Participant shall have represented at the time of purchase, in
form and substance satisfactory to the Corporation, that it is his or her
intention to purchase the Shares for investment and not for resale or
distribution.
ARTICLE X - MISCELLANEOUS
10.01. Designation of Beneficiary. A Participant may file a written
designation of a beneficiary who is to receive any Shares and/or cash in
Participant's account. Such designation of beneficiary may be changed by the
Participant at any time by written notice to the Human Resources Department of
the Corporation. Upon the death of a Participant and upon receipt by the
Corporation of proof of identity and existence at the Participant's death of a
beneficiary validly designated by him or her under the Plan, the Corporation
shall deliver such Shares and/or cash in Participant's account to such
beneficiary. In the event of the death of a Participant and in the absence of a
beneficiary validly designated under the Plan who is living at the time of such
Participant's death, the Corporation shall deliver such Shares and/or cash in
Participant's account to the executor or administrator of the estate of the
Participant, or if no such executor or administrator has been appointed (to the
knowledge of the Corporation), the Corporation, in its discretion, may deliver
such Shares and/or cash to the spouse or to any one or more dependents of the
Participant as the Corporation may designate. No beneficiary shall, prior to the
death of the participant by whom he has been designated, acquire any interest in
Shares or cash credited to the Participant under the Plan.
10.02. Non-Transferability. Neither payroll deductions credited to a
Participant's account nor any rights to participate in the Plan or to purchase
Shares under this Plan may be assigned, attached, garnished, sold, pledged,
encumbered, or otherwise disposed of in any matter by the Participant other than
by will or the laws of descent and distribution. Any such attempted assignment,
transfer, pledge or other disposition shall be without effect, except that the
Corporation may treat such act as an election to withdraw funds in accordance
with Section 6.04.
10.03. Use of Funds. All payroll deductions received or held by the
Corporation under this Plan may be used by the Corporation or any Subsidiary
Corporation for any corporate purpose and the Corporation shall not be obligated
to segregate such payroll deductions.
10.04. Adjustment Upon Changes in Capitalization. If the outstanding
Shares of Common Stock of the Corporation have increased, decreased, changed
into, or been exchanged for a different number or kind of shares or securities
of the Corporation through reorganization, merger, recapitalization,
reclassification, stock split, reverse stock split or similar transaction,
appropriate and proportionate adjustments may be made by the Committee in the
number and/or kind of shares which are subject to purchase. No adjustments shall
be made for stock dividends.
10.05. Amendment and Termination. The Board of Directors shall have
complete power and authority to terminate or amend this Plan; provided, however,
that the Board of Directors shall not, without the approval of the shareholders
of the Corporation (i) increase the maximum number of Shares which may be issued
under the Plan (except pursuant to Section 10.04); (ii) amend the requirements
as to the class of employees eligible to purchase Shares under the Plan.
5
<PAGE>
10.06. Responsibility. Neither the Corporation or any Subsidiary
Corporation, its Board of Directors, the members of the Committee, nor any
officer, employee or agent of any of them shall have any responsibility or
liability for any act or thing done or left undone, any mistake of judgment, nor
for any omission or wrongful act unless resulting from its or his or her own
gross negligence, willful misconduct or intentional misfeasance, including,
without limiting the generality of the foregoing, any action taken with respect
to the price, time, quantity, or other conditions and circumstances of the
purchase of Shares under the terms of the Plan. The Corporation shall indemnify
and save harmless each of such entities and persons against any claim, loss,
liability or expense arising out of the Plan, except such as may result from the
gross negligence, willful misconduct or intentional misfeasance of such entity
or person. A determination by the Corporation as to any question that may arise
regarding the Plan's conduct or operation shall be final.
10.07. Securities Act Requirements. If any law, regulation of the
Securities and Exchange Commission, or any regulation of any other commission or
agency having jurisdiction shall require the Corporation or the Participant to
take any action with respect to the Shares acquired under the Plan, then the
date upon which the Corporation shall deliver or cause to be delivered the
certificate or certificates for the Shares shall be postponed until full
compliance shall have been made with all such requirements.
10.08. Requirements Of Law. If any law, regulation of the Securities
and Exchange Commission, or any regulation of any other commission or agency
having jurisdiction shall require the Corporation or the Participant to take any
action with respect to the Shares acquired under the Plan, then the date upon
which the Corporation shall deliver or cause to be delivered the certificate or
certificates for the Shares shall be postponed until full compliance shall have
been made with all such requirements.
10.09. No Enlargement Of Employment Rights. The issuance of Shares
under this Plan to a Participant shall not confer any right upon the Participant
to continue in the employ of the Corporation or any Subsidiary Corporation and
shall not restrict or interfere in any way with the right of the Corporation or
any Subsidiary Corporation to terminate his or her employment, with or without
cause, at any time.
10.10. Withholding Of Taxes. The Committee shall deduct from any
payment of any kind otherwise due to such Participant any Federal, state or
local taxes of any kind required by law to be withheld with respect to the
issuance of Shares under the Plan to such Participant.
10.11. Effect of Plan. The provisions of the Plan shall, in accordance
with its terms, be binding upon, and inure to the benefit of, all successors of
each Employee participating in the Plan, including, without limitation, such
Employee's estate and the executors, administrators or trustees thereof, heirs
and legatees, and any receiver, trustee in bankruptcy or representative of
creditors of such employee.
10.12. Governing Law. The law of the State of Florida will govern all
matters relating to this Plan except to the extent it is superseded by the laws
of the United States.
6
Exhibit 24
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Rexall Sundown, Inc. on Post-Effective Amendment No. 3 to Form S-8 (Registration
Statement No. 33-66282) of our report dated October 10, 1997, on our audits of
the consolidated financial statements and financial statement schedule of Rexall
Sundown, Inc. as of August 31, 1997 and 1996 and for the three years in the
period ended August 31, 1997, appearing in the Form 10-K of Rexall Sundown, Inc.
filed with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PricewaterhouseCoopers LLP
Fort Lauderdale, Florida
August 24, 1998
