UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
NBTY, INC.
(Exact Name of Registrant as Specified in Its Charter)
0-10666
(Commission file number)
DELAWARE 11-2228617
(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
90 Orville Drive 11716
Bohemia, New York (Zip Code)
(Address of Principal Executive Offices)
(631) 567-9500
(Registrant's telephone number, including area code)
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates: None
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
Common Stock, par value $.008 per share New York Stock Exchange, Inc.
Securities to be registered pursuant to Section 12(g) of the Act:
None
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
Furnish the information required by Item 202 of Regulation S-K or
Item 202 of Regulation S-B, as applicable.
The Company's authorized capital stock consists of 175,000,000 shares
of Common Stock, $.008 par value per share. As of September 5, 2003, there
were approximately 66,592,570 shares of Common Stock issued and
outstanding, held of record by approximately 660 stockholders.
Common Stock
Holders of Common Stock are entitled to one vote per share on all
matters submitted to a vote of stockholders, including the election of
directors. The Common Stock does not permit cumulative voting in the
election of directors, which means that the holders of a majority of the
shares voting for election of directors can elect all members of the Board
of Directors. A plurality voice is sufficient for the election of
directors, and a majority vote is required for other actions that require
the vote or concurrence of stockholders. Dividends may be paid to holders
of Common Stock when and if declared by the Board of Directors out of funds
legally available therefor. In the event of dissolution or liquidation of
the Company, holders of Common Stock would be entitled to share ratably in
the assets of the Company remaining after payment to all creditors.
Holders of Common Stock have no preemptive or conversion rights, and
there are no redemption or sinking fund provisions applicable to the Common
Stock. All of the outstanding shares of Common Stock are fully paid and
non-assessable.
Certain Provisions of the Delaware General Corporation Law ("DGCL")
Section 228 of the DGCL allows any action which is required to be or
may be taken at a special or annual meeting of the stockholders of a
corporation to be taken without a meeting with the written consent of
holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted,
provided that the certificate of incorporation of such corporation does not
contain a provision to the contrary. The Certificate of Incorporation of
the Company contains no such provision, and therefore, pursuant to Section
228 and the By-laws, stockholders holding a majority of the voting power of
the Common Stock will be able to effect most corporate matters requiring
stockholder approval by written consent, without the need for a duly-
noticed and duly-held meeting of stockholders.
Anti-Takeover Considerations
The Company's Certificate of Incorporation and By-Laws include
certain provisions which could be described as anti-takeover provisions.
The Certificate of Incorporation and By-Laws provide that the
Company's Board of Directors, currently compromised of eleven members, be
divided into three classes, with staggered terms. Each director serves a
three-year term and holds office until his successor is elected and
qualified. Classification of the Board of Directors may have the effect of
making the removal of incumbent directors more time-consuming and
difficult, and, therefore, may have the effect of discouraging an
unsolicited takeover attempt to gain control of the Board through a proxy
solicitation.
The Certificate of Incorporation provides that, unless certain
conditions are satisfied, the affirmative vote of not less than 75% of the
outstanding shares of Common Stock of the Company entitled to vote, as a
class, in elections of directors is required for the adoption or
authorization of certain extraordinary corporation actions with Related
Persons (as defined in the Certificate of Incorporation). Such
extraordinary corporate actions include, but are not limited to, any merger
or consolidation of the
company with or into any Related Person or the adoption of any proposal or
plan for the liquidation or dissolution of the Company proposed by or on
behalf of any Related Person.
The Certificate of Incorporation provides that no amendment may be
made which amends, alters, changes or repeals the provisions mentioned in
the above paragraph without the affirmative vote of not less than 75% of
the shares of Common Stock of the Company entitled to vote, considered as a
class, in elections of directors; provided, however, that such 75% vote is
not required for any amendment, alteration, change or repeal recommended to
the stockholders by a majority of the Continuing Directors (as defined in
the Certificate of Incorporation).
The above provisions, among others, may have the effect of delaying,
deferring or preventing a change in control of the Company, may discourage
bids for the Common Stock at a premium over the market price of the Common
Stock and may adversely affect the market price of the Common Stock and the
voting and other rights of the holders of the Common Stock.
The Company expects that the Board of Directors may in the future
review the advisability of adopting other measures which may affect
takeovers in the context of applicable law and judicial decisions.
Item 2. Exhibits. List below all exhibits filed as a part of the
registration statement:
None.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: September 8, 2003 NBTY, INC.
By: /s/ Harvey Kamil
__________________________
Harvey Kamil, President