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
--------------------------- -----------------------------------
(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
----------------------
(Full Title of the Plan)
Morris C. Brown, Esq.
777 South Flagler Drive, Suite 300-E
West Palm Beach, Florida 33401
------------------------------
(Name and address of agent for service)
(561) 650-7900
(Telephone number, including area code, for agent for service)
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------- ---------------- ---------------- ------------------- ----------------
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
- ---------------------------------------------- ---------------- ---------------- ------------------- ----------------
Common Shares, $.001 par value 2,500,000(2) $0.14 $350,000 $28.32
- ---------------------------------------------- ---------------- ---------------- ------------------- ----------------
(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
2
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.
3
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.
5
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
-------------------------------------------------
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
- --------- ----- ----
/s/Chris Tisi Chief Executive Officer, President, Secretary and December 5, 2003
- ------------------------------------------
Chris Tisi Director (principal executive officer)
/s/James A. Brown Chairman of the Board December 5, 2003
- ------------------------------------------
James A. Brown
/s/Theodore Alflen Director December 5, 2003
- ------------------------------------------
Theodore Alflen
/s/Steven Pomerantz Director December 5, 2003
- ------------------------------------------
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)
EXHIBIT 5.1
December 5, 2003
Health & Nutrition Systems International, Inc.
3750 Investment Lane, Suite 5
West Palm Beach, Florida 33407
Re: Registration Statement on Form S-8
Gentlemen:
You have requested our opinion with respect to the offering by you, Health
& Nutrition Systems International, Inc., a Florida corporation (the "Company"),
of up to 2,500,000 common shares, $.001 par value, ("Common Shares"), of the
Company's Common Stock under the 1998 Stock Option Plan (the "Plan"), which
issuance is being registered with the Securities and Exchange Commission
pursuant to a registration statement on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended (the "Act").
We have examined and relied on originals or copies, certified or otherwise
identified as being true copies, of all such records of the Company, all such
agreements, certificates of public officials, certificates of officers and
representatives of the Company and others, opinions of counsel, documents,
papers, statutes, and authorities as we deemed necessary, and such other
documents, certificates and corporate or other records as we have deemed
necessary as a basis for the opinions hereinafter set forth, without limitation,
including the following:
o A copy of the Company's Articles of Incorporation, as amended o A copy of the
Company's By-Laws o The 1998 Stock Option Plan o The Registration Statement and
related documents o The corporate minute book of the Company
We have assumed the genuineness of all signatures and the conformity to
original documents of all copies. As to various questions of fact material to
our giving this opinion, we have relied upon statements and certificates of
officers and representative of the Company and others.
Based upon the foregoing, we are of the opinion that the Common Shares have
been duly and validly authorized and, when sold, paid for and issued as
contemplated by the Plan or the Option Agreement, as the case may be, and the
Registration Statement, the Common Shares will be legally issued, fully paid and
non-assessable.
The foregoing opinion is rendered subject to the qualifications that we are
members of the Florida bar. The foregoing opinion is limited to the laws of the
State of Florida and the federal laws of the United States insofar as they bear
on the matters covered hereby.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and to the use of our name as your counsel in connection with the
Registration Statement and in the Prospectus forming a part thereof. In giving
this consent, we do not thereby concede that we come within the categories of
persons whose consent is required by the Act or the General Rules and
Regulations promulgated under the Act.
Very truly yours,
/s/Greenberg Traurig, P.A.
--------------------------
Greenberg Traurig, P.A.
EXHIBIT 10.1
HEALTH & NUTRITION SYSTEMS INTERNATIONAL, INC.
1998 Stock Option Plan
1. Purposes of Plan. This 1998 Stock Option Plan (the "Plan") is
intended to encourage and enable selected employees, officers, directors and
independent contractors of Health & Nutrition Systems International, Inc. (the
"Company") to acquire or to increase their holdings of shares of the common
stock of the Company, $.001 par value per share (the "Common Stock") in order to
promote a closer identification of their interests with those of the Company and
its stockholders, thereby further stimulating their efforts to enhance the
efficiency, soundness, profitability, growth and stockholder value of the
Company. This purpose will be carried out through the granting of incentive
stock options ("Incentive Stock Options") and nonqualified stock options
("Nonqualified Stock Options"). Incentive Stock Options and Nonqualified Stock
Options shall be collectively referred to herein as "Options."
2. Administration. The Plan shall be administered by the Board of
Directors, or if appointed by the Board of Directors, by a committee, of not
less than two (2) Directors (the Board sitting as such Committee or such
Committee if appointed, is herein referred to as the "Committee"). The Committee
will administer the Plan and execute award agreements or other documents subject
to the express provisions of the Plan. In addition, the Committee shall have
plenary authority, in its discretion, to determine the individuals to whom, and
the time or times at which, awards of Options under the Plan shall be made,
whether the awards are to be Incentive Stock Options, or otherwise, and the
number of shares of Common Stock of the Company to be contained in each grant of
option, and to establish the terms and conditions of each award (which need not
be identical). Subject to the express provisions of the Plan, the Committee
shall have plenary authority in its discretion to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to the Plan,
prescribe and amend the terms and provisions of the stock option agreements
(which need not be identical) and to make all other determinations deemed
necessary or advisable for the administration of the Plan. The determinations of
the Committee on all matters with respect to the Plan shall be conclusive. All
expenses and liabilities incurred by the Committee in the administration of the
Plan shall be borne by the Company. The Committee may, with the approval of the
Board (if applicable) employ attorneys, consultants, accountants or other
persons to assist with the administration of the Plan.
3. Stock Reserved for the Plan. For purposes of the Plan, 2,500,000
shares of Common Stock may be issued pursuant to the exercise of options granted
hereunder (subject to adjustment as provided in Section 11 below), and the
Company has reserved sufficient authorized shares to provide for the exercise of
such options. Such shares may consist, in whole or in part, of unissued or
treasury shares. If any shares that have been optioned or granted under the Plan
cease to be subject to option or grant or are later forfeited or reacquired by
the Company, as the case may be, such shares may again be made subject to awards
under the Plan.
4. Participation. Officers, directors and other employees of the
Company, as well as independent contractors of and consultants to the Company,
are eligible to participate in the Plan.
5. Eligibility for Incentive Stock Options. An Incentive Stock Option
may be granted only to an individual who satisfies all of the following
eligibility requirements on the Granting Date (as defined in Section 7(b)
below):
(a) The individual is an employee of the Company. For this
purpose, an individual is considered to be an "employee" only if there exists
between the individual and the Company the legal and bona fide relationship of
employer and employee. In determining whether such a relationship exists, the
regulations of the United States Treasury Department relating to the
determination of the employment relationship for the purpose of collection of
income tax on wages at the source shall be applied.
1
(b) The individual is an employee of the Company who the
Committee determines is in a position to affect the profits of the Company by
reason of the nature and extent of such employee's duties, responsibilities,
personal capabilities, performance and potential.
(c) With respect to the grant of an Incentive Stock Option,
the individual does not own, immediately before the time that the Incentive
Stock Option is granted, stock possessing more than ten percent of the total
combined voting power of all classes of stock of the Company; provided, that a
10% Holder (as defined in Section 7 below) may be granted an incentive option if
the price at which such option may be exercised is greater than or equal to one
hundred ten percent (110%) of the fair market value of the shares of Common
Stock of the fair market value of the Common Stock at the time of the grant of
the option and the period of the option does not exceed five (5) years. For this
purpose, an individual will be deemed to own stock which is attributed to him
under Section 424(d) of the Internal Revenue Code of 1986, as amended (the
"Code").
(d) The individual, being otherwise eligible under this
Section 5, is selected by the Committee as an individual to whom an option shall
be granted (a "Grantee").
6. Eligibility for Nonqualified Stock Options. A Nonqualified Stock
Option may be granted only to an individual who satisfies the following
eligibility requirements on the Granting Date:
(a) The individual is an employee, officer or independent
contractor or consultant of the Company. For this purpose, an individual is an
considered to be an "employee" only if there exists between the individual and
the Company or a related corporation the legal and bona fide relationship of
employer and employee. In determining whether such a relationship exists, the
regulations of the United States Treasury Department relating to the
determination of the employment relationship for the purpose of collection of
income tax on wages at the source shall be applied. For this purpose, an
individual is considered an "independent contractor" if that individual performs
services for the Company in a capacity other than as an employee.
(b) The individual, being otherwise eligible under this
Section 6, is selected by the Committee as an Grantee.
7. Terms and Conditions of Options. All Options granted under this plan
shall be subject to the following terms and conditions and any others as the
Committee shall deem desirable:
(a) Option Price. The purchase price per share of Common Stock
will be determined by the Committee but the purchase price for Incentive Stock
Options will not be less than one hundred percent (100%) of the fair market
value of the stock on the Granting Date. Such fair market value shall be
determined by the Committee in such manner as it shall deem reasonable and in
compliance with all applicable laws and regulations. The purchase price of the
stock subject to an Incentive Stock Option granted to the holder of ten percent
(10%) or more of the total combined voting power of all classes of stock of the
Company (a "10% Holder") shall be equal to at least one hundred ten percent
(110%) of the fair market value of the Common Stock at the time of the grant of
the option. In no event shall the purchase price per share under any Option be
less than the par value of such stock subject to the Option.
(b) Effective Date of Grant. The effective date of the grant
of an Option (the "Granting Date") shall be the date specified by the Committee
in its determination relating to the award of such Option, provided that such
date shall not be prior to the date of such action by the Committee. The
Committee shall promptly notify the Grantee of the grant of an Option, and a
written Stock Option Agreement shall promptly be executed and delivered by and
on behalf of the Company and the Grantee, provided that such grant of an Option
shall expire if a written Stock Option Agreement is not signed by said Grantee
(or his or her agent or attorney) and returned to the Company within sixty (60)
days from the Granting Date.
(c) Option Period. The term of each Option, including the
earliest date of exercise and the "vesting" periods for the exercise of the
Options over time shall be fixed by the Committee; provided, however that no
Option shall be exercisable after the expiration of ten (10) years from the
Granting Date (but no more than five (5) years from the Granting Date in the
case of a 10% Holder). The aggregate fair market value (determined as of the
time the Granting Date) of the Stock with respect to which Incentive Stock
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Options are exercisable for the first time by a grantee during any calendar year
(under all plans of the Company and its subsidiaries) shall not exceed One
Hundred Thousand Dollars ($100,000). To the extent Options which first become
exercisable during a calendar year exceed One Hundred Thousand Dollars
($100,000) to one employee, such Options shall be deemed non-qualified stock
Options.
(d) Exercise. An Option may be exercised by giving written
notice of exercise to the Company specifying the number of shares to be
purchased and by paying in full the purchase price in cash or certified check,
except to the extent the participant is permitted to defer such payment pursuant
to the Option Agreement with such participant or a separate agreement. The
Committee may make provision for so-called "cashless exercise" pursuant to the
Option Agreement or a separate agreement with the Grantee. The holder of an
Option shall have none of the rights of a stockholder with respect to the shares
subject thereto until such shares shall have been issued and registered on the
Company's transfer books upon such exercise.
(e) Non-transferability of Options. No Option or other right
granted under the Plan shall be transferable other than by will and laws of
descent and distribution. An Option or other right shall be exercisable during a
Grantee's lifetime only by the Grantee.
(f) Termination by Retirement. Except as may otherwise be
determined by the Committee, if a Grantee who is an employee retires pursuant to
any retirement plan of the Company, his or her outstanding Options may be
exercised (to the extent of the number of shares purchasable by such grantee at
the time of his or her retirement) for up to three months after his or her
retirement date or the stated period of the Option, whichever period is shorter.
(g) Termination by Disability. Except as may otherwise be
determined by the Committee, if a Grantee's employment is terminated due to a
disability qualifying such Grantee for payments under any disability plan of the
Company or a subsidiary, his or her outstanding Options may be exercised to the
extent of the remaining shares covered by the Option for up to twelve months
from the date of termination or the stated period of the Option, whichever
period is shorter.
(h) Other Termination. Except as may otherwise be determined
by the Committee from time to time, if a Grantee ceases to be an officer,
employee or director of the Company for any reason other than death, disability
or retirement, or in the case of contractors and consultants, ceases to be a
contractor or consultant to the Company, his or her outstanding Options shall
terminate and expire upon the termination of such relationship with the Company.
(i) Death of Grantee. In the event of the death of a Grantee
while he or she is employed by the Company, or within the three month period or
the twelve month period provided in Section 7(f) and 7(g) hereof, respectively,
the Options granted to him may be exercised by a legatee or legatees of the
Grantee under his or her last will, or by his or her personal representatives or
distributees, at any time within a period of one year after his or her death
(unless otherwise provided in his or her Stock Option Agreement), but not after
the date on which the Options otherwise expires within such period.
(j) Stock Option Agreements. The grant of any Option under the
Plan shall be evidenced by the execution of an agreement between the Company and
the Grantee in such form as may be adopted by the Committee from time to time in
its sole discretion (each a "Stock Option Agreement"). Stock Option Agreements
between the Company and Grantees of options need not be identical, but each such
agreement shall set forth the date of grant of the option, the Option Price, the
Option period, the designation of the Option as an Incentive Stock Option or a
Nonqualified Stock Option, and the time or times when and the conditions upon
the happening of which the Option shall become exercisable. Such agreement shall
also set forth the restrictions, if any, with respect to which the shares to be
purchased thereunder shall be subject, and such other terms and conditions as
the Committee shall determine, which are consistent with the provisions of the
Plan and applicable law and regulations.
(k) Incentive Stock Options. It is the intent of the Company
that certain Options granted under the Plan qualify as "incentive stock options"
under Section 422 of the Internal Revenue Code. Accordingly, the Plan is also
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deemed to contain such other terms and conditions necessary (and not contain any
terms and conditions inconsistent with said Section 422) so that certain Options
granted under the Plan shall qualify as Incentive Stock Options under said
Section 422.
(l) Discretion of the Committee. The Committee may at any
time, in its sole discretion, accelerate the time at which any or all
restrictions will lapse or remove any or all of such restrictions.
8. Terms and Conditions. Any Option awarded to the participant under
the Plan shall be subject to the following terms and conditions and any others
as the Committee shall deem desirable:
(a) Vesting Acceleration. Except as may otherwise be
determined by the Committee in its sole discretion at any time, upon an
acquisition of the Company, as evidenced by the purchase (other than through the
issuance of stock by the Company) by an independent party of more than fifty
percent (50%) of the outstanding shares, a merger as a result of which more than
fifty percent (50%) of the outstanding capital stock of the Company is held by
persons who were not previously stockholders of the Company, or a sale of all or
substantially all of the Company's assets, all outstanding Options may
immediately be exercised by the grantee thereof. Except as may otherwise be
determined by the Committee in its sole discretion at any time, upon the closing
of the sale of shares of Common Stock in a fully underwritten public offering
(with underwriters approved by the Board of Directors of the Company) pursuant
to an effective registration statement under the Securities Act of 1933, as
amended, where the aggregate sales price of such shares of Common Stock is not
less than $10,000,000, all outstanding Options may immediately be exercised by
the grantee thereof.
(b) Delivery of Stock. The Company shall deliver stock
certificates representing the number of shares of Common Stock that have been
fully paid as soon as practicable after receipt of payment from a Grantee. If a
Grantee is allowed under the terms of the Option to make payment of any part of
the purchase price of the Common Stock on a deferred basis, then stock
certificates representing shares of Common Stock shall be delivered to the
Grantee only to the extent that such shares are fully paid.
(c) Right as a Shareholder. Upon the exercise of an Option,
the payment in full of the Option price and the issuance of shares, the Grantee
shall have all of the rights of a shareholder with respect to such Common Stock
and the right to receive all dividends paid thereon.
9. No Right to Company Employment. Nothing in this Plan or as a result
of any award pursuant to this Plan shall confer on any participant any right to
continue in the employ of the Company or of a subsidiary or interfere in any way
with the right of the Company or of a subsidiary to terminate a participant's
employment at any time. Awards granted under the Plan shall not be affected by
any change of employment so long as the participant continues to be an officer,
director, or employee of the Company.
10. Right of First Refusal. Except as may otherwise be determined by
the Committee in its sole discretion at any time, upon or at any time after
termination of employment or association with the Company by death, disability,
retirement or any other reason, or in the event a Grantee desires to sell or
transfer his or her shares of Common Stock, the Company shall have the right to
purchase any shares owned by the participant at their then current fair market
value. The calculation of fair market value will be determined by the Committee,
in good faith, based upon relevant conditions and circumstances. If the Company
declines to purchase the shares within 30 days after the date the Committee
calculates and determines the fair market value, then the participant shall have
the right to offer the shares for sale to a third party for a period of thirty
days following the lapse of the right of first refusal to the Company;
thereafter such shares shall once again be subject to the right of first refusal
herein provided. The right of first refusal shall terminate at any time a
registration statement is filed by the Company under the Securities Act of 1933,
as amended (the "1933 Act") and is declared effective by the Securities and
Exchange Commission for the public issue of the Company's Common Stock;
provided, however, that the Company has no obligation to the Grantee to register
the Grantee's shares of Common Stock under the 1933 Act.
11. Adjustments Upon Changes in Capitalization. If there is any change
in the outstanding shares of common stock of the Company as a result of a
merger, consolidation, reorganization, stock dividend, stock split to holders of
shares that is distributable in shares, or other change in the capital stock
4
structure of the Company or a related corporation, the Committee shall make such
adjustments to options, to the number of shares reserved for issuance under the
Plan, and to any provisions of this Plan as the Committee deems equitable to
prevent dilution or enlargement of options or otherwise advisable to reflect
such change.
12. Amendments and Termination. The Committee may amend, alter or
discontinue the Plan in such respects as it shall deem advisable; provided,
however, that the Committee may not, without approval by the holders of the
majority of the outstanding shares of Common Stock of the Company; (i) increase
the aggregate maximum number of shares as to which Options may be granted under
the Plan; or (ii) change the class of participants eligible to receive awards
under the Plan.
13. Effective Date of the Plan. The Plan shall become effective as of
the date of adoption by the Board of Directors (the "Effective Date"), subject
to approval by the shareholders within one (1) year thereafter.
14. Term of the Plan. No Options shall be granted pursuant to the Plan
after the date that is ten (10) years after the Effective Date. However,
unexpired options granted prior to such date will remain in effect.
15. Government and Other Regulations. The obligations of the Company to
issue shares under the Plan, and the transferability of shares shall be subject
to all applicable laws, rules and regulations, and such approvals by any
governmental agencies as may be required, including, without limitation, if
necessary or appropriate, the effectiveness of a registration statement under
the Securities Act of 1933, as amended. All shares issued upon exercise of
options will contain restrictive legends as deemed appropriate by counsel to the
Company.
16. Tax Withholding. When any Option is exercised, the grantee shall
pay the Company in cash any amount of withholding taxes which the Company may be
required by law to withhold.
17. Limited Liability. Neither the Company nor any of its officers, or
employees, or any member of the Board of Directors or the Committee, or any
other person participating in any determination of any question under the Plan,
or in the interpretation, administration or applicable of the Plan, shall have
any liability for any action taken, or not taken, in good faith under the Plan,
or based on or arising out of the determination of any question under the Plan,
made in good faith.
18. Non-Exclusivity of the Plan. Neither the adoption by the Board of
Directors nor the submission of the Plan to the stockholders of the Company for
approval shall be construed as creating any limitations on the power of the
Board of Directors to adopt such other incentive arrangements as it may deem
desirable, including without limitation, the granting of stock options otherwise
than under the Plan, and such arrangements may be either generally applicable or
applicable only in specific cases.
19. Applicable Law. The Plan shall be construed and enforced according
to the laws of the State of Florida.
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Health & Nutrition Systems International, Inc.:
We consent to incorporation by reference in the registration statements on Form
S-8 of Health & Nutrition Systems International, Inc. of our report dated
February 17, 2003, relating to the balance sheet of Health & Nutrition Systems
International, Inc., and the related statements of operations, changes in
shareholders' deficit and cash flows for the years then ended, which report
appears in the April 1, 2003 annual report on Form 10-KSB of Health & Nutrition
Systems International, Inc. and in the prospectus under the heading "Experts,"
which is part of this registration statement.
/s/Daszkal Bolton LLP
Daszkal Bolton LLP
Boca Raton, Florida
December 05, 2003