As filed with the Securities and Exchange Commission on July 7, 2004,
Registration No. 333-
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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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Advanced Nutraceuticals, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Texas 76-0642336
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(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
106 South University Blvd., Unit 14
Denver, Colorado 80209
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(Address of Principal Executive Offices) (Zip Code)
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Advanced Nutraceuticals, Inc. 1995 Stock Option Plan, as Amended
(Full Title of Plan)
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Greg Pusey
President
Advanced Nutraceuticals, Inc.
106 South University Blvd., Unit 14
Denver, CO 80209
(303) 722-4008
(Name, Address and Telephone Number of Agent for Service)
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Copy to:
Robert M. Bearman, Esq.
Patton Boggs, LLP
1660 Lincoln Street, Suite 1900
Denver, CO 80264
(303) 894-6169
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Offering Maximum
Title Of Security Amount Being Price Per Aggregate Offering Amount Of
Being Registered Registered* Share** Price** Registration Fee
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Common Stock,
Par Value $.01 1,250,000 shares $1.31 $1,637,500 $207.47
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(*) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Securities Act"), this registration statement also
covers an indeterminate number of additional shares which may be
offered and issued in accordance with the Plan terms to prevent
dilution from stock splits, stock dividends or similar transactions.
(**) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(i) under the Securities Act. The price per
share and aggregate offering price are based upon the weighted average
exercise price of options outstanding.
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This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission in accordance with Rule 462 under the
Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with the Note to Part I of Form S-8, the information
specified by Part I has been omitted from this Registration Statement.
The documents containing information specified in the instructions to Part
I of Form S-8 will be sent or given to employees participating in the Plan as
specified by Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Advanced Nutraceuticals, Inc. hereby incorporates, or will be deemed to
have incorporated, herein by reference the following documents:
o Advanced Nutraceuticals, Inc. Report on Form 10-K for the fiscal year
ended September 30, 2003;
o Advanced Nutraceuticals, Inc, Report on Form 10-K/A for the fiscal
year ended September 30, 2003;
o Advanced Nutraceuticals, Inc, Report on Form 10-QSB for the quarter
ended December 31, 2003;
o Advanced Nutraceuticals, Inc, Report on Form 10-QSB for the six months
ended March 31, 2004;
o Advanced Nutraceuticals, Inc.'s Current Report on Form 8-K, dated
March 23, 2004 and filed March 24, 2004;
o Advanced Nutraceuticals, Inc.'s Current Report on Form 8-K, dated
March 26, 2004 and filed March 29, 2004;
o Advanced Nutraceuticals, Inc.'s Current Report on Form 8-K, dated
March 23, 2004 and filed April 2, 2004;
o Advanced Nutraceuticals, Inc.'s Current Report on Form 8-K, dated
April 16, 2004 and filed April 16, 2004;
All documents and reports filed by the registrant pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
hereto which indicates that all of the securities offered hereby have been sold
of which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents or reports, other than information in such documents that the
Commission allows registrant to furnish rather than file and any other
information that the Commission allows the Registrant not to incorporate by
reference. Any statement contained in a document incorporated or deemed
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified shall not be deemed to constitute a
part of the registration Statement except as so modified and any statement so
superseded shall not be deemed to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
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Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation of the Registrant include the following
provisions:
FIFTEENTH: The Corporation shall indemnify any and all of its directors or
officers or former directors or officers or any person who may have served at
its request as a director or officer of any other corporation in which it owns
shares of capital stock or of which it is a creditor, against expenses actually
and necessarily incurred by them, in connection with the defense of any action,
suit or proceeding in which they, or any of them, are made parties, or a party,
by reason of being or having been directors or officers of the Corporation, or
for such other corporation, except in relation to matters to which any such
director or officer or former director or person shall be adjudged in such
action, suit or proceeding to be liable for gross negligence or willful
misconduct in the performance of duty. Such indemnification shall not be deemed
exclusive of any other rights to which those indemnified may be entitled, under
any bylaw, agreement, vote of shareholders, or otherwise.
SIXTEENTH: No director of the Corporation shall be liable to the
Corporation or its shareholders for monetary damages for an act or omission in
the director's capacity as a director, to the fullest extent that such liability
may be limited by Article 1302-7.06 of the Texas Miscellaneous Corporation Act,
as it may be amended from time to time (or any provision of succeeding law that
corresponds to Article 1302-7.06).
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description of Exhibit
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4. Specimen Stock Certificate
5.1 Opinion of Patton Boggs, LLP
23.1 Consent of Gelfond Hochstadt Pangburn, P.C.
23.2 Consent of Grant Thornton LLP
23.3 Consent of Patton Boggs, LLP
(included in Exhibit 5.1)
24. Power of Attorney is located in the signature page to this
Registration Statement.
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Item 9. Undertakings.
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;
(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 (l)(i) and (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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
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.
4. 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 15(d) of the Securities Exchange Act of 1934
and each filing of the 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.
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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 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 Act and will be governed by the final adjudication of
such issue.
SIGNATURES AND POWER OF ATTORNEY
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 Denver, State of Colorado on this 7th day of July,
2004.
ADVANCED NUTRACEUTICALS, INC.
By:
/s/ Gregory Pusey
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Gregory Pusey
President and
Chief Executive Officer
(Principal Executive Officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gregory Pusey and Jeffrey G. McGonegal, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same 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.
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
Date Title Signature
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July 7, 2004 President, Chief Executive Officer and
Director (Principal Executive Officer) /s/ Gregory Pusey
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Gregory Pusey
July 7, 2004 Senior Vice President of Finance, Chief
Financial Officer and Secretary (Principal
Financial Officer) /s/ Jeffrey G. McGonegal
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Jeffrey G. McGonegal
July 7, 2004 Chairman and Director /s/ Pailla Reddy
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Pailla Reddy
July 7, 2004 Director /s/ F. Wayne Ballenger
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F. Wayne Ballenger
July 7, 2004 Director /s/ Randall D. Humphreys
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Randall D. Humphreys
July 7, 2004 Director /s/ David E. Welch
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David E. Welch
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Index of Exhibits
Exhibit No. Description of Exhibit
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4. Specimen Stock Certificate
5.1 Opinion of Patton Boggs, LLP
23.1 Consent of Gelfond Hochstadt Pangburn, P.C.
23.2 Consent of Grant Thornton LLP
23.3 Consent of Patton Boggs, LLP (included in Exhibit 5.1)
24. Power of Attorney (included in the Registration Statement under
"Signatures and Power of Attorney").