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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE ___, 2000
REGISTRATION NO. 33- _______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NUTRACEUTIX, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 91-1689591
(State of Incorporation) (I.R.S. Employer Identification No.)
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NUTRACEUTIX, INC.
1995 AMENDED STOCK OPTION PLAN
(Full Title of the Plan)
David T. Howard, President
Nutraceutix, Inc.
8340 - 154th Avenue N.E.
Redmond, Washington 98052
(425) 883-9518
(Name, Address and Telephone Number of Agent for Service)
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COPY TO:
Bruce A. Robertson
GARVEY, SCHUBERT & BARER
1191 Second Avenue, 18th Floor
Seattle, Washington 98101-2939
(206) 464-3939
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be Proposed maximum Proposed maximum
to be registered registered (1) offering price per aggregate offering Amount of
share (2) price (2) registration fee
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<S> <C> <C> <C> <C>
Common Stock, $.001 1,000,000 $0.4375 $437,500.00 $115.50
par value per share
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(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 amended,
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 June 26, 2000.
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The Nutraceutix, Inc. 1995 Amended Stock Option Plan, as amended (the
"Plan"), authorizes the issuance of a maximum of 4,000,000 shares of the Common
Stock of Nutraceutix, Inc. (the "Company"), of which 1,000,000 shares are being
registered hereunder. A registration statement on Form S-8 registering 2,982,000
shares issuable under the Plan was filed by registrant on May 26, 1999 (File No.
333-79343). As of June 19, 2000, options to purchase 3,134,488 shares of the
Company's Common Stock were outstanding, 48,000 shares of the Company's Common
Stock had been issued upon exercise of options granted under the Plan, and
options to purchase 817,512 shares of the Company's Common Stock were available
for future grants under the Plan.
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, 1999 (filed on March 30, 2000).
(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 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
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found liable to the corporation, but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses, as such court shall deem proper.
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
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<CAPTION>
Exhibit
Number Description
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<S> <C>
4.1 Amendment No. 1 to Nutraceutix, Inc. 1995 Stock Option
Plan and Nutraceutix, Inc. 1995 Amended Stock Option
Plan*
4.2 Amendment No. 2 to Nutraceutix, Inc. 1995 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 William D. St. John
24.5 Power of Attorney of Daniel B. Ward
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*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
(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;
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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 with or furnished to the
Commission 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 26th day of
June, 2000.
NUTRACEUTIX, INC.
By: /s/ David T. Howard
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David T. Howard
Its: President and Chief Executive Officer
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 26th day of June, 2000.
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<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/ David T. Howard President, Chief Executive Officer and Director
-------------------------- (Principal Executive Officer)
David T. Howard
/s/ Steven H. Moger Vice President of Operations
-------------------------- (Principal Financial and Accounting Officer)
Steven H. Moger
*/s/ William D. St. John Chairman of the Board and
-------------------------- Chief Scientific Officer
William D. St. John
*/s/ Herbert L. Lucas Director
--------------------------
Herbert L. Lucas
*/s/ Arthur S. Pearson Director
--------------------------
Arthur S. Pearson
*/s/ Carl W. Schafer Director
--------------------------
Carl W. Schafer
*/s/ Daniel B. Ward Director
--------------------------
Daniel B. Ward
*/s/ David T. Howard Attorney-in-Fact
--------------------------
David T. Howard
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INDEX TO EXHIBITS
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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)
4.2 Amendment No. 2 to Nutraceutix, Inc. 1995 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 William D. St. John
24.5 Power of Attorney of Daniel B. Ward
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