As filed with the Securities and Exchange Commission on December 5, 2003
Registration No: 333-__________
UNITES STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Health & Nutrition Systems International, Inc.
(Exact name of registrant as specified in its charter)
Florida 65-0452156
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3750 Investment Lane, Suite 5
West Palm Beach, Florida 33404
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(Address of Principal Executive Offices)
1998 Stock Option Plan
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(Full Title of the Plan)
Morris C. Brown, Esq.
777 South Flagler Drive, Suite 300-E
West Palm Beach, Florida 33401
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(Name and address of agent for service)
(561) 650-7900
(Telephone number, including area code, for agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED AMOUNT TO BE OFFERING PRICE OFFERING PRICE(1) REGISTRATION
REGISTERED PER SHARE(1) FEE
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Common Shares, $.001 par value 2,500,000(2) $0.14 $350,000 $28.32
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) and (c) under the Securities Act of 1933, as
amended, based upon the average of the high and low sales prices of the
Common Shares as reported on the Over-the-Counter Bulletin Board on
December 3, 2003.
(2) The 2,500,000 common shares registered hereby are to be issued pursuant to
the terms of the 1998 Stock Option Plan. This Registration Statement also
relates to such indeterminate number of additional Common Shares of the
Registrant as may be issuable as a result of stock splits, stock dividends,
recapitalizations, mergers, reorganizations, combinations or exchange of
shares or other similar events.
This Registration Statement shall become effective upon filing with the
Securities and Exchange Commission (the "Commission") in accordance with Section
8(a) of the Securities Act, and Rules 456 and 462 promulgated thereunder.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (d) below, which have been filed
by Health & Nutrition Systems International, Inc., a Florida corporation (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in this registration statement:
(a) The Registrant's latest annual report on Form 10-KSB for the
fiscal year ended December 31, 2002, filed with the Commission
on April 1, 2003 pursuant to Section 13 of the Securities and
Exchange Act of 1934, as amended (the "1934 Act") and the
Registrant's annual report on Form 10-KSB/A-1, filed with the
Commission on April 30, 2003.
(b) The Registrant's Quarterly Report on Form 10-QSB for the
period ended March 31, 2003 filed with the Commission on May
15, 2003, the Registrant's Quarterly Report on Form 10-QSB for
the period ended June 30, 2003, filed with the Commission on
August 14, 2003, the Registrant's Quarterly Report on Form
10-QSB for the period ended September 30, 2003, filed with the
Commission on November 14, 2003, and the Registrant's Current
Report on Form 8-K dated December 4, 2003.
(c) The description of the Registrant's Common Shares, par value
$.001, contained in the Registrant's Form 10-SB, dated January
31, 2000 filed with the Commission on January 31, 2000,
including any amendments or reports filed for the purpose of
updating that description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the 1934 Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
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 part hereof from the respective dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the provisions of Section 607.0850(1) of the Florida
Business Corporation Act and the Registrant's Articles of Incorporation, the
Registrant has the power to indemnify any person who is or was a party to any
proceeding (other than an action by, or in the right of, the Registrant),
because such person is or was a director, officer, employee, or agent of the
Registrant (or is or was serving at the request of the Registrant under
specified capacities) against liability incurred in connection with such
proceeding provided such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to the best interest of the
Registrant (and with respect to any criminal action or proceedings, such person
had no reasonable cause to believe such person's conduct was unlawful).
With respect to a proceeding by or in the right of the Registrant to
procure a judgment in its favor, Section 607.0850(2) of the Florida Business
Corporation Act provides that the Registrant shall have the power to indemnify
any person who is or was a director, officer, employee, or agent of the
Registrant (or is or was serving at the request of the Registrant under
specified capacities) against expenses and amounts paid in settlement not
exceeding, in the judgment of the Board of Directors, the estimated expense of
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litigating the proceeding to conclusion, actually and reasonably incurred in
connection with the defense or settlement of such proceeding provided such
person acted in good faith and in a manner such person reasonably believed to be
in, or not opposed to, the best interest of the Registrant, except that no
indemnification shall be made in case in which such person shall have been
adjudged to be liable to the Registrant unless and only to the extent that the
court in which the proceeding was brought, shall determine upon application
that, despite the adjudication of liability but in view of all circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses.
Indemnification as described above shall only be granted in a specific
case upon a determination that indemnification is proper under the circumstances
using the applicable standard of conduct which is made by (a) a majority of a
quorum of directors who were not parties to such proceeding, (b) if such a
quorum is not attainable, by majority vote of a committee designated by the
Board of Directors consisting of two or more directors not parties to the
proceeding, (c) by independent legal counsel selected by the Board of Directors
described in the foregoing pars (a) and (b), or if a quorum cannot be obtained,
then selected by a majority vote of a quorum consisting of stockholders who are
not parties to such proceeding.
Pursuant to Section 607.0850(7) of the Florida Business Corporation Act,
expenses are not exclusive, and the Registrant may make any other or further
indemnification or advancement of expenses of any of its directors, officers,
employees, or agents, both as to action in his or her official capacity and as
to action in another capacity while holding such office. Indemnification or
advancement of expenses shall not be made if a judgment or other final
adjudication establishes that the action of the director, officer, employee, or
agent , or omissions to act, were material to the cause of action so adjudicated
and constitute (a) a violation of the criminal law, (b) a transaction from which
the director, officer, employee, or agent derived an improper personal benefit,
(c) constitutes a violation of s. 607.0834 by a director in that he voted or
assented to an unlawful distribution, (d) willful misconduct or a conscious
disregard for the best interests of the Registrant in a proceeding by or in the
right of the Registrant to procure a judgment in its favor or in a proceeding by
or in the right of a shareholder.
Section 607.0850(12) of the Florida Business Corporation Act permits
the Registrant to purchase and maintain insurance on behalf of any director,
officer, employee or agent of the Registrant (or is or was serving at the
request of the Registrant in specified capacities) against any liability
asserted against such person or incurred by such person in any such capacity
whether or not the Registrant has the power to indemnify such person against
such liability.
The registrant has entered into indemnification agreements with its
directors, providing for indemnification by the registrant against any and all
claims or other liabilities actually and reasonably incurred or paid by them in
connection with any threatened, pending or completed action or proceeding (other
than an action by or in the right of the Company) to which the director is a
party or is threatened to be made a party by reason of the fact that he is or
was an officer, director, shareholder, employee or agent of the registrant,
provided that he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the registrant, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The indemnification excludes claims:
(a) that are a violation of criminal law, unless the indemnity had
reasonable cause to believe his conduct was lawful or had no reasonable cause to
believe his conduct was unlawful;
(b) that provide an improper personal benefit to the indemnity within
the meaning of Section 607.0850(7) of the Florida Business Corporation Act;
(c) for which the liability provision of Section 607.0834 of the
Florida Business Corporation Act are applicable; and
(d) relating to willful misconduct or conscious disregard for the best
interests of the company in a proceeding by or in the right of the registrant to
procure a judgment in its favor or in a proceeding by or in the right of a
shareholder of the company.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors and officers of the Company pursuant to the
foregoing provisions or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities act and is, therefore,
unenforceable.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
3.1 Articles of Incorporation of the registrant are incorporated
by reference to Exhibit 3.1(a) to the registrant's FORM 10-SB,
filed with the Commission on January 31, 2000
3.2 Articles of Incorporation of the registrant are incorporated
by reference to Exhibit 3.1(b) to the registrant's FORM 10-SB,
filed with the Commission on January 31, 2000
3.3 Articles of Incorporation of the registrant are incorporated
by reference to Exhibit 3.1(c) to the registrant's FORM 10-SB,
filed with the Commission on January 31, 2000
3.4 Articles of Incorporation of the registrant are incorporated
by reference to Exhibit 3.1(d) to the registrant's FORM
10-KSB, filed with the Commission on April 16, 2001
5.1* Opinion of Greenberg Traurig, P.A.
10.1* 1998 Stock Option Plan
23.1* Consent of Daszkal Bolton LLP
23.2* Consent of Greenberg Traurig, P.A.(included in opinion filed
as Exhibit 5.1)
24.1* Power of Attorney (included as part of the signature
page to this registration statement)
*Filed with this Registration Statement.
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:
(iii) To include any additional or changed
material information on the plan of
distribution.
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 end of the
offering.
b. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE.
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 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.
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c. THE BENEFITS OF SUCH INDEMNIFICATION ARE NOT WAIVED BY SUCH
PERSONS:
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.
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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 West Palm Beach, State of Florida, on this 5th day of
December, 2003.
Health & Nutrition Systems International, Inc. (Registrant)
By: /s/Chris Tisi
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Chris Tisi
Chief Executive Officer and President
POWER OF ATTORNEY
The officers and directors of Health & Nutrition Systems
International, Inc. whose signatures appear below, hereby constitute and appoint
James A. Brown their true and lawful attorney-in-fact and agent, with full power
of substitution, with power to sign and execute on behalf of the undersigned any
amendment or amendments to this registration statement on Form S-8, and each of
the undersigned does hereby ratify and confirm all that said attorney-in-fact
and agent, or his substitutes, shall 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 on behalf of the
registrant and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/Chris Tisi Chief Executive Officer, President, Secretary and December 5, 2003
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Chris Tisi Director (principal executive officer)
/s/James A. Brown Chairman of the Board December 5, 2003
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James A. Brown
/s/Theodore Alflen Director December 5, 2003
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Theodore Alflen
/s/Steven Pomerantz Director December 5, 2003
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Steven Pomerantz
EXHIBIT INDEX
Exhibit No. Description of Exhibit
3.1 Articles of Incorporation of the registrant are incorporated by reference to Exhibit 3.1(a) to the
registrant's FORM 10-SB, filed with the Commission on January 31, 2000
3.2 Articles of Incorporation of the registrant are incorporated by reference to Exhibit 3.1(b) to the
registrant's FORM 10-SB, filed with the Commission on January 31, 2000
3.3 Articles of Incorporation of the registrant are incorporated by reference to Exhibit 3.1(c) to the
registrant's FORM 10-SB, filed with the Commission on January 31, 2000
3.4 Articles of Incorporation of the registrant are incorporated by reference to Exhibit 3.1(d) to the
registrant's FORM 10-KSB, filed with the Commission on April 16, 2001
5.1 Opinion of Greenberg Traurig, P.A.
10.1 1998 Stock Option Plan
23.1 Consent of Daszkal Bolton LLP
23.2 Consent of Greenberg Traurig, P.A.
24.1 Power of Attorney (included in the signature page to this registration statement)