<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 26, 1999
REGISTRATION NO. 333-_______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------
NUTRACEUTIX, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 91-1689591
(State of Incorporation) (I.R.S. Employer Identification No.)
--------------------------------
NUTRACEUTIX, INC.
1995 AMENDED STOCK OPTION PLAN
(Full Title of the Plan)
William D. St. John, President
Nutraceutix, Inc.
8340 - 154th Avenue N.E.
Redmond, Washington 98052
(425) 883-9518
(Name, Address and Telephone Number of Agent for Service)
--------------------------------
COPY TO:
Bruce A. Robertson
GARVEY, SCHUBERT & BARER
1191 Second Avenue, 18th Floor
Seattle, Washington 98101-2939
(206) 464-3939
--------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================
Title of securities Amount to be Proposed maximum Proposed maximum
to be registered registered (1) offering price aggregate Amount of
per share (2) offering price (2) registration fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 2,982,000 $0.468 $1,395,576 $387.97
par value per share
====================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock that become issuable under the Nutraceutix, Inc. 1995
Amended Stock Option Plan as the result of any future stock split, stock
dividend or similar adjustment of the outstanding Common Stock of the
Registrant.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) of the Securities Act of 1933, as amended, and
is based on the average of the bid and asked price as of May 21, 1999.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
ITEM 2. REGISTRANT INFORMATION
The information required by Items 1 and 2 of Part I is included in the
documents sent or given to participants.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents of Nutraceutix, Inc. (the "Company") previously
filed with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1998 (filed on March 31, 1999).
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year covered by the above reference to the Company's Annual Report
on Form 10-KSB.
(c) The description of the Company's Common Stock contained in the
Registration Statement on Form 10-SB filed on July 27, 1998 (Registration No.
000-24693), including all amendments and reports filed for the purpose of
updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters the 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 such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") provides
that a corporation may 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 corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust of other enterprise against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner he reasonably
1
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believed to be in or not opposed to the best interests of the corporation, and
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct 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
actions and requires court approval before there can be any indemnification
where the person seeking indemnification has been found liable to the
corporation.
The Company's Certificate of Incorporation and Bylaws contain provisions
limiting or eliminating the liability of directors and officers of the Company
to the fullest extent permitted by the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1 Amendment No. 1 to Nutraceutix, Inc. 1995 Stock Option Plan and
Nutraceutix, Inc. 1995 Amended Stock Option Plan*
5.1 Opinion of Garvey, Schubert & Barer regarding legality of the Common
Stock being registered
23.1 Consent of Grant Thornton, LLP, Independent Certified Public Accountants
23.2 Consent of Garvey, Schubert & Barer (included in opinion filed as
Exhibit 5.1)
24.1 Power of Attorney of Herbert L. Lucas
24.2 Power of Attorney of Arthur S. Pearson
24.3 Power of Attorney of Carl W. Schafer
24.4 Power of Attorney of Daniel B. Ward
</TABLE>
* Incorporated by reference to the Registration Statement on Form 10-SB
(Reg. No. 000-24693) filed by the Company on July 27, 1998.
ITEM 9. UNDERTAKINGS
A. The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration Statement; and
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do 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 Exchange Act that are incorporated by
reference in this Registration Statement.
(2) 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefits plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
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 Commission such indemnification is
against public policy as expressed in the Securities 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 it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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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 Redmond, State of Washington, on the 25th day of May,
1999.
NUTRACEUTIX, INC.
By: /s/ William St. John
-------------------------------------
William St. John
Its: President, Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the 25th day of May, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/ William D. St. John President, Chairman of the Board
- -------------------------------------
William D. St. John (Principal Executive Officer)
/s/ Steven H. Moger Vice President of Operations
- -------------------------------------
Steven H. Moger (Principal Financial and Accounting
Officer)
*/s/ Herbert L. Lucas
- -------------------------------------
Herbert L. Lucas Director
*/s/ Arthur S. Pearson
- -------------------------------------
Arthur S. Pearson Director
*/s/ Carl W. Schafer
- -------------------------------------
Carl W. Schafer Director
*/s/ Daniel B. Ward
- -------------------------------------
Daniel B. Ward Director
/s/ William D. St. John
- -------------------------------------
William D. St. John, Attorney in Fact Director
</TABLE>
4
<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
4.1 Amendment No. 1 to Nutraceutix, Inc 1995 Stock Option Plan and
Nutraceutix, Inc. 1995 Amended Stock Option Plan (Incorporated by
reference to the Registration Statement on Form 10-SB (Reg. No.
000-24693) filed by the Company on July 27, 1998)
5.1 Opinion of Garvey, Schubert & Barer regarding legality of the Common
Stock being registered
23.1 Consent of Grant Thornton LLP, Independent Certified Public Accountants
23.2 Consent of Garvey, Schubert & Barer (included in opinion filed as
Exhibit 5.1)
24.1 Power of Attorney of Herbert L. Lucas
24.2 Power of Attorney of Arthur S. Pearson
24.3 Power of Attorney of Carl W. Schafer
24.4 Power of Attorney of Daniel B. Ward
</TABLE>
5
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Exhibit 5.1
Nutraceutix, Inc.
8340 - 154th Avenue N.E.
Redmond, Washington 98052
RE: 2,982,000 SHARES OF COMMON STOCK ($.001 PAR VALUE PER SHARE) OF
NUTRACEUTIX, INC. (THE "COMPANY")
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") pursuant to
the Securities Act of 1933, as amended (the "Act"), which you are filing with
the Securities and Exchange Commission with respect to 2,982,000 shares of
Common Stock, $.001 par value per share (the "Shares"), which may be issued
pursuant to the Nutraceutix, Inc. 1995 Amended Stock Option Plan (the "Plan").
We have examined the Registration Statement and such other documents and records
of the Company, as we have deemed relevant and necessary for the purposes of
this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
Shares that will be issued pursuant to the Plan, upon the due execution by the
Company and the registration by its registrar of the Shares and the issuance
thereof by the Company in accordance with the terms of the Plan, and the receipt
of consideration therefor in accordance with the terms of the Plans, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
GARVEY, SCHUBERT & BARER
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Nutraceutix, Inc.
8340 - 154th Avenue N.E.
Redmond, Washington 98052
RE: NUTRACEUTIX, INC. FORM S-8
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Nutraceutix, Inc. of our report dated February 12,
1999, appearing on page F-2 of Nutraceutix, Inc.'s Annual Report on Form 10-KSB
for the year ended December 31, 1998.
GRANT THORNTON LLP
Seattle, Washington
May 25, 1999
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Exhibit 24.1
POWER OF ATTORNEY OF HERBERT L. LUCAS
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Herbert L. Lucas,
hereby constitutes and appoints William D. St. John or Steven H. Moger his true
and lawful attorney-in-fact and agent, for him and his name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-8,
registering 2,982,000 shares of common stock of Nutraceutix, Inc., a Delaware
corporation, issuable upon exercise of options granted pursuant to the
Nutraceutix, Inc. 1995 Amended Stock Option Plan, and any amendments (including
post-effective amendments) or supplements thereto, and to file this Power of
Attorney and the Form S-8, with all exhibits thereto, and other documents in
connection therewith with the Securities and Exchange Commission and any stock
exchange or similar authority, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent may do or cause to be done
by virtue hereof.
This Power of Attorney shall remain in full force and effect until revoked
by the undersigned in a signed writing delivered to the foregoing
attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be
executed this 24th day of May, 1999.
/s/ Herbert L. Lucas
---------------------------------------------
HERBERT L. LUCAS
<PAGE> 1
Exhibit 24.2
POWER OF ATTORNEY OF ARTHUR S. PEARSON
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Arthur S. Pearson, hereby
constitutes and appoints William D. St. John or Steven H. Moger his true and
lawful attorney-in-fact and agent, for him and his name, place and stead, in any
and all capacities, to sign the Registration Statement on Form S-8, registering
2,982,000 shares of common stock of Nutraceutix, Inc., a Delaware corporation,
issuable upon exercise of options granted pursuant to the Nutraceutix, Inc. 1995
Amended Stock Option Plan, and any amendments (including post-effective
amendments) or supplements thereto, and to file this Power of Attorney and the
Form S-8, with all exhibits thereto, and other documents in connection therewith
with the Securities and Exchange Commission and any stock exchange or similar
authority, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent may do or cause to be done by virtue hereof.
This Power of Attorney shall remain in full force and effect until revoked
by the undersigned in a signed writing delivered to the foregoing
attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be
executed this 25th day of May, 1999.
/s/ Arthur S. Pearson
---------------------------------------------
ARTHUR S. PEARSON
<PAGE> 1
Exhibit 24.3
POWER OF ATTORNEY OF CARL W. SCHAFER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Carl W. Schafer
constitutes and appoints William D. St. John or Steven H. Moger his true and
lawful attorney-in-fact and agent, for him and his name, place and stead, in any
and all capacities, to sign the Registration Statement on Form S-8, registering
2,982,000 shares of common stock of Nutraceutix, Inc., a Delaware corporation,
issuable upon exercise of options granted pursuant to the Nutraceutix, Inc. 1995
Amended Stock Option Plan, and any amendments (including post-effective
amendments) or supplements thereto, and to file this Power of Attorney and the
Form S-8, with all exhibits thereto, and other documents in connection therewith
with the Securities and Exchange Commission and any stock exchange or similar
authority, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent may do or cause to be done by virtue hereof.
This Power of Attorney shall remain in full force and effect until revoked
by the undersigned in a signed writing delivered to the foregoing
attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be
executed this 25th day of May, 1999.
/s/ Carl W. Schafer
---------------------------------------------
CARL W. SCHAFER
<PAGE> 1
Exhibit 24.4
POWER OF ATTORNEY OF DANIEL B. WARD
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Daniel B. Ward,
hereby constitutes and appoints William D. St. John or Steven H. Moger his true
and lawful attorney-in-fact and agent, for him and his name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-8,
registering 2,982,000 shares of common stock of Nutraceutix, Inc., a Delaware
corporation, issuable upon exercise of options granted pursuant to the
Nutraceutix, Inc. 1995 Amended Stock Option Plan, and any amendments (including
post-effective amendments) or supplements thereto, and to file this Power of
Attorney and the Form S-8, with all exhibits thereto, and other documents in
connection therewith with the Securities and Exchange Commission and any stock
exchange or similar authority, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent may do or cause to be done
by virtue hereof.
This Power of Attorney shall remain in full force and effect until revoked
by the undersigned in a signed writing delivered to the foregoing
attorney-in-fact.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be
executed this 25th day of May, 1999.
/s/ Daniel B. Ward
---------------------------------------------
DANIEL B. WARD
