As filed
with the Securities and Exchange Commission on
July 6, 2009
Registration No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NBTY,
INC.
(Exact name of registrant as specified in its
charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
|
|
11-2228617
(IRS Employer
Identification No.)
|
2100
Smithtown Avenue
Ronkonkoma,
NY 11779
(Address of principal executive offices) (Zip Code)
NBTY, Inc.
2009 Equity Awards Plan
NBTY, Inc. Year 2008 Stock Option Plan
(Full title of
the plans)
Irene
B. Fisher, Esq.
General Counsel
NBTY, Inc.
2100 Smithtown Avenue
Ronkonkoma, NY 11779
(631) 567-9500
(Name, address and telephone number, including area code, of agent for
service)
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2
of the Exchange Act (Check one):
|
Large
accelerated filer
|
x
|
|
Accelerated
filer
|
o
|
|
Non-accelerated
filer
|
o
|
|
Smaller
reporting company
|
o
|
(Do not check if a smaller reporting company)
|
|
|
|
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
Title of securities
to be registered
|
|
Amount to be registered (1)
|
|
Proposed maximum
offering price per
share
|
|
Proposed
maximum
aggregate offering
price
|
|
Amount of registration
fee
|
|
Common
Stock, par value $0.008 per share, to be issued under the NBTY, Inc.
2009 Equity Awards Plan
|
|
2,500,000 shares
|
|
$
|
26.74
|
(2)
|
$
|
66,850,000
|
|
$
|
3,730.23
|
|
Common
Stock, par value $0.008 per share, to be issued under the NBTY, Inc.
Year 2008 Stock Option Plan
|
|
1,372,393 shares
|
|
$
|
26.74
|
(2)
|
$
|
36,697,788.82
|
|
$
|
2,047.74
|
|
(1)
Pursuant to Rule 416(a) under
the Securities Act of 1933, this registration statement also covers an
additional indeterminate number of shares, options and rights that may be
offered or issued pursuant to the NBTY, Inc. 2009 Equity Awards Plan and
the NBTY, Inc. Year 2008 Stock Option Plan pursuant to stock splits, stock
dividends or similar transactions.
(2)
Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) promulgated
under the Securities Act of 1933, based upon the average of the high and low
sales prices of the Common Stock as reported on the New York Stock Exchange on June 26,
2009.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Certain Documents by Reference.
NBTY, Inc. (the Company)
hereby incorporates by reference into this registration statement the following
documents previously filed with the Securities and Exchange Commission (the Commission):
(a) The Companys Annual
Report on Form 10-K for the fiscal year ended September 30, 2008.
(b) All other reports
filed by the Company pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the Exchange Act) since September 30,
2008.
In addition, all documents subsequently filed pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered have been
sold or which deregisters all 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 of such documents.
Item 4.
Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and
Counsel.
Irene
B. Fisher, Esq., General Counsel of the Registrant, is rendering an
opinion upon the validity of the securities being registered hereby. Ms. Fisher holds options to purchase
Common Stock and is eligible to participate in one or more of the Companys
employee plans, including the NBTY, Inc. 2009 Equity Awards Plan and the
NBTY, Inc. Year 2008 Stock Option Plan.
Item 6.
Indemnification of
Directors and Officers.
Under the Delaware General Corporation Law, (the DGCL), a corporation may indemnify any person made, or threatened to be made, a party to any action or proceeding, except for stockholder derivative suits, by reason of the fact that he or she was a director or officer of the corporation, provided such director or officer acted in good faith and in a manner which he or she reasonably believed to be in the best interests of the corporation and, in criminal proceedings, had no reasonable cause to believe his or her conduct was unlawful. Indemnification may be provided against expenses, judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys fees actually and necessarily incurred as a result of such action, proceeding or appeal therefrom. Delaware law also provides that expenses (including attorneys fees) incurred in defending a civil or criminal action or proceeding may be paid by the corporation in advance of the final disposition of such proceedings upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it is ultimately determined that such person was not entitled to such indemnification.
In the case of stockholder derivative suits, the corporation may indemnify any person by reason of the fact that he or she was a director or officer of the corporation if he or she acted in good faith and in a manner which he or she reasonably believed to be in the best interest of the corporation, except that no indemnification may be made in respect of (i) a threatened action, or a pending action which is settled or otherwise disposed of, or (ii) any claim, issue or matter as to which such person has been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper.
2
The indemnification and advancement of the expenses described above under the DGCL is not exclusive of other indemnification rights to which a director or officer may be entitled, whether contained in the certificate of incorporation or by-laws or when authorized by (i) such certificate of incorporation or by-laws, (ii) a resolution of stockholders, (iii) a resolution of directors, or (iv) an agreement providing for such indemnification.
Any person who has been successful on the merits or otherwise in the defense of a civil or criminal action or proceeding will be entitled to indemnification. Except as provided in the preceding sentence, unless ordered by a court pursuant to the DGCL, any indemnification under the DGCL pursuant to the above paragraphs may be made only if authorized in the specific case and after a finding that the director or officer met the requisite standard of conduct (i) by the disinterested directors if a quorum is available or (ii) in the event a quorum of disinterested directors is not available, if so directed by either (A) the board upon the written opinion of independent legal counsel or (B) by the stockholders.
The Companys Restated Certificate of Incorporation and Bylaws provide that the Company shall indemnify directors and officers and their heirs, executors and administrators to the full extent permitted by the DGCL. The Company, by appropriate action of its Board of Directors, may indemnify directors and officers and their heirs, executors and administrators to the full extent permitted by the DGCL.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The Exhibits accompanying
this registration statement are listed below and also on the accompanying Exhibit Index.
EXHIBIT
NUMBER
|
|
DESCRIPTION
|
|
|
|
4.1
|
|
Restated Certificate of
Incorporation of the Company (incorporated by reference to Exhibit 3.1
to the Companys Annual Report on Form 10-K for the fiscal year ended
September 30, 2005 filed December 22, 2005)
|
|
|
|
4.2
|
|
Amended and Restated
By-Laws of the Company (incorporated by reference to Exhibit 3.2 to the
Companys Annual Report on Form 10-K for the fiscal year ended
September 30, 2006 filed December 11, 2006)
|
|
|
|
4.3
|
|
NBTY, Inc. 2009
Equity Awards Plan (incorporated by reference to Appendix 1 of the Companys
Proxy Statement pursuant to Schedule 14A of the Securities Exchange Act of
1934 dated January 14, 2009 relating to the Companys 2009 Annual
Meeting of Stockholders)
|
|
|
|
4.4
|
|
NBTY, Inc. Year
2008 Stock Option Plan (incorporated by reference to Annex A of the Companys
Proxy Supplement pursuant to Schedule 14A of the Securities Exchange Act of
1934 dated February 6, 2008 relating to the Companys 2008 Annual
Meeting of Stockholders)
|
|
|
|
*5.1
|
|
Opinion of Irene B.
Fisher, Esq.
|
|
|
|
*23.1
|
|
Consent of Irene B.
Fisher, Esq. (included in her opinion filed as Exhibit 5.1)
|
|
|
|
*23.2
|
|
Consent of
PricewaterhouseCoopers LLP
|
|
|
|
24.1
|
|
Powers of Attorney
(contained in the signature page to this registration statement)
|
* Filed herewith.
3
Item 9. Undertakings.
(a) The undersigned registrant 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 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar volume of the
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the Calculation
of Registration Fee table in the effective registration statement;
(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 such information in the
registration statement.
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section 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 the registration statement.
(2) That, for the purpose of
determining any liability under the Securities Act, each 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 this offering.
(b) The undersigned registrant hereby
undertakes that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrants annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) 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.
(c)
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 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 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 such 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 Act and will be governed by the final
adjudication of such issue.
4
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 Ronkonkoma, State of New
York, on this July 6, 2009.
|
NBTY, INC.
|
|
|
|
|
|
By:
|
/s/ Harvey Kamil
|
|
|
Name: Harvey Kamil
|
|
|
Title: President
|
POWER OF ATTORNEY
Each person whose signature
appears below hereby constitutes and appoints Irene B. Fisher as his or her
true and lawful attorney-in-fact and agent with full powers of substitution and
resubstitution, for the undersigned and in the name of the undersigned, in any
and all capacities, to sign any or all amendments (including post-effective
amendments) to this registration statement on Form S-8, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and 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 attorneys-in-fact and
agents or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed by the following persons in
the capacities indicated on this July 6, 2009.
Signatures
|
|
Capacity
|
|
|
|
/s/ Scott
Rudolph
|
|
|
Scott Rudolph
|
|
Chairman and Chief
Executive Officer
|
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
/s/ Harvey Kamil
|
|
President and Chief
Financial Officer (Principal
|
Harvey Kamil
|
|
Financial and
Accounting Officer)
|
|
|
|
|
|
|
/s/ Arthur Rudolph
|
|
Director
|
Arthur Rudolph
|
|
|
|
|
|
|
|
|
/s/ Aram G.
Garabedian
|
|
Director
|
Aram G. Garabedian
|
|
|
|
|
|
|
|
|
/s/ Glenn Cohen
|
|
Director
|
Glenn Cohen
|
|
|
|
|
|
|
|
|
/s/ Michael
Ashner
|
|
Director
|
Michael L.
Ashner
|
|
|
5
/s/ Peter White
|
|
Director
|
Peter White
|
|
|
|
|
|
|
|
|
/s/ Neil Koenig
|
|
Director
|
Neil Koenig
|
|
|
6
INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
EXHIBIT
NUMBER
|
|
DESCRIPTION
|
|
|
|
4.1
|
|
Restated Certificate of
Incorporation of the Company (incorporated by reference to Exhibit 3.1
to the Companys Annual Report on Form 10-K for the fiscal year ended
September 30, 2005 filed December 22, 2005)
|
|
|
|
4.2
|
|
Amended and Restated
By-Laws of the Company (incorporated by reference to Exhibit 3.2 to the
Companys Annual Report on Form 10-K for the fiscal year ended
September 30, 2006 filed December 11, 2006)
|
|
|
|
4.3
|
|
NBTY, Inc. 2009
Equity Awards Plan (incorporated by reference to Appendix 1 of the Companys
Proxy Statement pursuant to Schedule 14A of the Securities Exchange Act of
1934 dated January 14, 2009 relating to the Companys 2009 Annual
Meeting of Stockholders)
|
|
|
|
4.4
|
|
NBTY, Inc. Year
2008 Stock Option Plan (incorporated by reference to Annex A of the Companys
Proxy Supplement pursuant to Schedule 14A of the Securities Exchange Act of
1934 dated February 6, 2008 relating to the Companys 2008 Annual
Meeting of Stockholders)
|
|
|
|
*5.1
|
|
Opinion of Irene B.
Fisher, Esq.
|
|
|
|
*23.1
|
|
Consent of Irene B. Fisher, Esq.
(included in the opinion filed as Exhibit 5.1)
|
|
|
|
*23.2
|
|
Consent of
PricewaterhouseCoopers LLP
|
|
|
|
24.1
|
|
Powers of Attorney
(contained in the signature page to this registration statement)
|
* Filed herewith.
N B T Y (NYSE:NTY)
과거 데이터 주식 차트
부터 8월(8) 2024 으로 9월(9) 2024
N B T Y (NYSE:NTY)
과거 데이터 주식 차트
부터 9월(9) 2023 으로 9월(9) 2024