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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
GENERAL NUTRITION COMPANIES, INC.
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(Exact name of issuer as specified in its charter)
Delaware 04-3056351
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State of Incorporation (IRS Employer Identification Number)
921 Penn Avenue, Pittsburgh, Pennsylvania 15222 (412) 288-4600
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(Address and telephone number of principal executive offices)
GENERAL NUTRITION COMPANIES, INC.
1996 Management and Director Stock Option Plan
1996 Management and Director Stock Purchase Plan
Stock Option Agreement
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(Full Titles of the Plans)
James M. Sander, Esquire
Vice President - Law, Chief Legal Officer & Secretary
921 Penn Avenue
Pittsburgh, PA 15222
(412) 288-4619
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(Name, Address and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) Per Share Price Fee (2)
- ---------- -------------- ---------- ------------- -------
Common Stock, 2,225,000 15.50 $ 34,487,500 $10,451
par value $.01 625,000 18.60 11,625,000 3,523
per share 50,000 16.875 843,750 256
2,100,000 17.75 37,275,000 11,295
535,028 12.48 6,677,450 2,024
464,972 17.75 8,253,253 2,501
125,000 16.875 2,109,375 639
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6,125,000 $101,271,328 $30,689
(1) Also registered hereunder are such additional number of shares of
common stock, presently indeterminable, as may be necessary to satisfy
the antidilution provisions of the Plans and option agreements to
which this Registration Statement relates.
(2) The registration fee has been calculated with respect to 2,564,972 of
the shares registered on the basis of the average of the high and low
sale price ($17.75) on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ"), on February 3, 1997; and with
respect to the remaining 3,560,028 shares on the basis of the offering
price thereof under the foregoing employee benefit plans and stock
option.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference the documents listed in
(a) through (c) below. In addition, all documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (prior to the filing of a Post-Effective Amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold) shall be deemed to be incorporated by
reference in this Registration Statement and to be a part thereof from the date
of filing of such documents.
(a) The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 or the latest Prospectus
contained in the Company's Registration Statement on Form S-3 or filed pursuant
to the Rule 424(b) under the Securities Act of 1933, which contains audited
financial statements for the Company's latest fiscal year for which such
statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
annual report, the Prospectus, or the effective Registration Statement referred
to in (a) above.
(c) The description of the Company's Common Stock which is contained
in the Registration Statement filed by the Company under the Securities
Exchange Act of 1934, including any amendment or report filed for the purpose
of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The consolidated financial statements incorporated in this
registration statement by reference from the Company's Annual Report on Form
10-K for the year ended February 3, 1996 have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference and has been so incorporated in reliance upon the report of
such firm given upon their authority as experts in accounting and auditing.
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With respect to the unaudited interim financial information for the
Twelve Weeks Ended April 27, 1996 and April 29, 1995, Twelve Weeks Ended July
20, 1996 and July 22, 1995, and the Twelve Weeks Ended October 12, 1996 and
October 14, 1995, which are incorporated herein by reference, Deloitte & Touche
LLP have applied limited procedures in accordance with professional standards
for a review of such information. However, as stated in their reports included
in the Company's Quarterly Reports on Form 10-Q for the quarters ended April
27, 1996, July 20, 1996 and October 12, 1996 and incorporated by reference
herein, they did not audit and they do not express an opinion on that interim
financial information. Accordingly, the degree of reliance on their reports on
such information should be restricted in light of the limited nature of the
review procedure applied. Deloitte & Touche LLP are not subject to the
liability provisions of Section 11 of the Securities Act of 1933 for their
reports on the unaudited interim financial information because those reports
are not "reports" or a "part" of the registration statement prepared or
certified by an accountant within the meaning of sections 7 and 11 of the Act.
The validity of the authorization issuance of the Common Stock offered
hereby will be passed upon for the Company by James M. Sander, its Vice
President-Law, Chief Legal Officer and Secretary.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article TENTH of the Certificate of Incorporation of the Company
provides as follows:
No director shall be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
notwithstanding any provisions of law imposing such liability; provided
however, that, to the extent provided by applicable law, this provision shall
not eliminate the liability of a director (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation
Law of Delaware, or (iv) of any transaction from which the director derived an
improper personal benefit.
Section 145 of the General Corporation Law of the State of Delaware
permits the indemnification and insurance of the corporation's directors and
officers under certain circumstances.
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Article 10 of the By-laws of the Company provides as follows:
ARTICLE 10
INDEMNIFICATION
SECTION 10.1 THIRD PARTY ACTIONS. The Corporation shall 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 he is or was a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he 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. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which 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 reasonable cause to believe that his conduct was unlawful.
SECTION 10.2 DERIVATIVE ACTIONS. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he 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 or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he 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 except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
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SECTION 10.3 EXPENSES. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Sections
10.1 and 10.2, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
SECTION 10.4 AUTHORIZATION. Any indemnification under Sections 10.1
and 10.2 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in Sections 10.1 and
10.2. Such determination shall be made (a) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even
if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (c) by the stockholders.
SECTION 10.5 ADVANCE PAYMENT OF EXPENSES. Expenses incurred by an
officer or director in defending a civil or criminal action, suit or proceeding
may be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf of such officer or
director to repay such amount unless it shall ultimately be determined that he
is entitled to be indemnified by the Corporation as authorized in this Article
10. Such expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the Board of Directors deems appropriate.
SECTION 10.6 NON-EXCLUSIVENESS. The indemnification provided by this
Article 10 shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 10.7 INSURANCE. The Corporation shall have power to purchase
and maintain insurance on behalf of any person who 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 or other enterprise against any
liability asserted
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against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article 10.
SECTION 10.8 CONSTITUENT CORPORATIONS. The Corporation shall have
power to indemnify any person who is or was a director, officer, employee or
agent of a constituent corporation absorbed in a consolidation or merger with
this Corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, in the same manner as
hereinabove provided for any person who is or was a director, officer, employee
or agent of the Corporation, or is or was servicing at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
SECTION 10.9 ADDITIONAL INDEMNIFICATION. In addition to the foregoing
provisions of this Article 10, the Corporation shall have the power, to the
full extent provided by law, to indemnify any person for any act or omission of
such person against all loss, cost, damage and expense (including attorneys'
fees) if such person is determined (in he manner prescribed in Section 10.4
hereof) to have acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interest of the Corporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
ITEM 8. EXHIBITS
Number Description
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4A General Nutrition Companies, Inc. 1996 Management
and Director Stock Purchase Plan
4B General Nutrition Companies, Inc. 1996 Management
and Director Stock Option Plan
4C Stock Option Agreement
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5 Opinion of James M. Sander, Esquire, Vice
President-Law, Chief Legal Officer and Secretary, as
to legality of shares being registered and consent
15 Letter from Deloitte & Touche LLP regarding
unaudited interim financial information
23 Consent of Deloitte & Touche LLP
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes the following:
(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 of 1933;
(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; and
(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) 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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
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(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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 of 1933, each filing of the
registrant's 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 plan's 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) The undersigned registrant hereby undertakes, that, 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 Securities and Exchange 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 labilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person for 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 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 Pittsburgh, State of Pennsylvania, on
February 7, 1997.
GENERAL NUTRITION COMPANIES, INC.
By: /s/ WILLIAM E. WATTS
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William E. Watts
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 and on the dates indicated.
Signature Title Date
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/s/ JERRY D. HORN Chairman of the Board and Director February 7, 1997
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Jerry D. Horn
/s/ WILLIAM E. WATTS President, Chief Executive Officer and Director February 7, 1997
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William E. Watts
/s/ EDWIN J. KOZLOWSKI Executive Vice President, Chief Financial February 7, 1997
- -------------------------- Officer, and Treasurer (Principal Financial and
Edwin J. Kozlowski Accounting Officer)
/s/ THOMAS R. SHEPHERD Director February 7, 1997
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Thomas R. Shepherd
/s/ W. HARRISON WELLFORD Director February 7, 1997
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W. Harrison Wellford
/s/ RONALD L. ROSSETTI Director February 7, 1997
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Ronald L. Rossetti
/s/ DAVID LUCAS Director February 7, 1997
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David Lucas
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EXHIBIT INDEX
Sequential
Page
Number Description Number
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4A General Nutrition Companies, Inc. 1996 Management
and Director Stock Purchase Plan.
4B General Nutrition Companies, Inc. 1996 Management
and Director Stock Option Plan.
4C Stock Option Agreement
5 Opinion of James M. Sander, Esquire, Vice President-Law,
Chief Legal Officer and Secretary, as to legality of shares
being registered and consent.
15 Letter from Deloitte & Touche LLP Regarding Unaudited
Interim Financial Information
23 Consents of Experts - included in Registration Statement
under heading "Independent Auditors' Consent."