Jason
Ash
President
and Chief Executive Officer
PacificHealth
Laboratories, Inc.
100
Matawan Road, Suite 420
Matawan,
NJ 07747
(732)
739-2900
(Name,
Address and Telephone Number, Including Area Code, of Agent for
Service)
Copies
of all communications, including all communications sent to agent for service,
should be sent to:
Gary
A. Miller
Eckert
Seamans Cherin & Mellott, LLC
Two
Liberty Place
50
South 16th Street,
22nd
Floor
Philadelphia,
PA 19102
(215)
851-8400
CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities
To
Be Registered (1)
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Amount
To Be
Registered
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Proposed Maximum
Offering
Price
Per Share
(2)
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Proposed Maximum
Aggregate Offering
Price
(3)
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Amount Of
Registration
Fee
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Common Stock, $0.0025 par value
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450,000
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$0.15
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$67,500
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$3.76
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(1) This
registration statement covers shares of common stock of PacificHealth
Laboratories, Inc. that may be offered or sold pursuant to the 2009 Athlete
Stock Plan. In addition, pursuant to Rule 416(a) and (b) under the Securities
Act of 1933, this registration statement also covers an indeterminate number of
additional shares that may become issuable under the registrant's 2009 Athlete
Stock Plan pursuant to anti-dilution and adjustment provisions thereof as a
result of stock splits, stock dividends or similar transactions.
(2)
Offering prices per share of the 450,000 shares authorized and available for
issuance under the 2009 Athlete Stock Plan are calculated pursuant to Rule
457(h) and (c) under the Securities Act of 1933 solely for the purpose of
calculating the registration fee, based upon the average of the high and low
prices of our common stock as reported on the Over-the-Counter Bulletin Board on
March 11, 2009 ($0.15).
(3) The
proposed maximum offering price is the sum of all the shares and prices set
forth in note (2).
This
Registration Statement on Form S-8 is filed to register 450,000 shares of Common
Stock, par value $0.0025 per share (the "Common Stock"), of PacificHealth
Laboratories, Inc. for issuance upon the exercise of warrants granted under the
Company's 2009 Athlete Stock Plan (the "Plan").
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in this Part I of Form S-8 (plan
information and registrant information and employee plan annual information)
will be sent or given to participants as specified by Securities and Exchange
Commission Rule 428(b)(1). Such documents need not be filed with the Securities
and Exchange Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents,
which include a statement of availability required by Item 2 of Form S-8, and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act of
1933.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents heretofore filed with the Securities and Exchange Commission
by PacificHealth Laboratories, Inc. (the "Company") under the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein
by reference:
(1) The
Company's Annual Report on Form 10-K/A for the year ended December 31, 2008,
filed with the Commission on March 17, 2009.
(2) The
Company's Quarterly Report on Form 10-QSB for the period ended March 31, 2008,
filed with the Commission on May 2, 2008.
(3) The
Company's Quarterly Report on Form 10-Q for the period ended June 30, 2008,
filed with the Commission on August 1, 2008.
(4) The
Company's Quarterly Report on 10-Q for the period ended September 30, 2008,
filed with the Commission on October 31, 2008.
(5) The
Company's Current Reports on Form 8-K filed on May 2, 2008, May 9, 2008, August
4, 2008, August 11, 2008, October 27, 2008, and March 3,
2009.
(6) The
description of the Company's Common Stock contained in or set forth in the
Company's
Registration
Statement on Form 8-A filed under Section 12 of the Exchange Act on December 12,
1997, and any amendment or report hereafter filed for the purpose of updating
such description.
All
documents filed by the Company pursuant to Sections 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 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 hereof from the date of filing of such documents.
Any
statement contained in a document all or a portion of which is incorporated or
deemed to be 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 or superseded shall
not be deemed, except as so modified or superseded, 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
Item
6. Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law (the "DGCL") empowers a corporation
to indemnify any person who was or is 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
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses (including attorneys' 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 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 a plea of nolo
contendere or its equivalent, does 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 interest of the corporation, and with respect
to any criminal proceeding, he had reasonable cause to believe that his conduct
was unlawful. Section 145 of the DGCL also empowers a corporation to 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 such
person acted in any of the capacities set forth above, against expenses
(including amounts paid in settlement and attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation or for
amounts paid in settlement to the corporation unless, and only to the extent
that, the Delaware Court of Chancery or other court in which such action or suit
was brought shall determine upon application that in view of all the
circumstances of the case, that despite the adjudication of liability such
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
Section
145 of the DGCL further provides that, to the extent that a director or officer
of a corporation has been successful on the merits or otherwise, in the defense
of any action, suit or proceeding referred to above or in the defense of any
claim, issue or matter therein, he must be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith. The right to indemnification under Section 145 is in
addition to any other rights to which the indemnified party may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise.
Article
NINTH of the Company's Certificate of Incorporation, as amended, provides that:
The Corporation shall, to the fullest extent permitted by the provisions of
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, 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.
Article V
of the Company's Amended and Restated Bylaws further implements the provisions
of Section 145 of the DGCL in substantially the same terms as Article Ninth of
the Certificate of Incorporation and, in addition, requires the Company to
advance expenses reasonably incurred by persons entitled to indemnification
under Article Ninth and Article V in advance of the final disposition of the
matter giving rise to the right to indemnification. As permitted by Section
102(7) of the DGCL, the Company's Certificate of Incorporation also provides
that: The personal liability of the directors of the corporation is hereby
eliminated to the fullest extent permitted by the provisions of paragraph (7) of
subsection (b) of Section 102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented. Section 102(7) currently
provides that any such provision of a corporation's certificate of incorporation
may not eliminate or limit the liability of a director or officer for (i) 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 DGCL
relating to unlawful dividends, or (iv) for any transaction from which the
director derived an improper personal benefit.
Item
7. Exemption From Registration Claimed.
Not
applicable.
Item
8. Exhibits.
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Exhibit
No.
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Description
of Exhibits(1)
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3(i)(a)
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Certificate
of Incorporation of PacificHealth Laboratories, Inc. and all amendments
thereto (incorporated by reference to Exhibit 3.1 to PacificHealth
Laboratories, Inc.’s Registration Statement on Form SB-2 (Registration No.
333-36379) filed on September 25, 1997)
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3(i)(b)
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Certificate
of Amendment of Certificate of Incorporation of PacificHealth
Laboratories, Inc. (incorporated by reference to Exhibit 3.3 to
PacificHealth Laboratories, Inc.’s Annual Report on Form 10-KSB filed on
March 31, 2003)
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3(i)(c)
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Certificate
of Designations for Series A Preferred Stock (incorporated by reference to
Exhibit 3.1 to PacificHealth Laboratories, Inc.’s Current Report on Form
8-K filed on January 28, 2005)
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3(i)(d)
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Certificate
of Designations for Series B Preferred Stock, filed with the Secretary of
State of the State of Delaware on April 28, 2005 (incorporated by
reference to Exhibit 3(i) to PacificHealth Laboratories, Inc.’s Current
Report on Form 8-K filed May 4, 2005)
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5.1
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Opinion
of Eckert Seamans Cherin & Mellott, LLC (including
consent)
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23.1
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Consent
of Eckert Seamans Cherin & Mellott, LLC (included in Exhibit
5.1)
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23.2
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Consent
of Weiser LLC
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24.1
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Power
of Attorney (included on signature page of this Registration
Statement)
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99.1
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PacificHealth
Laboratories, Inc. 2009 Athlete Stock Plan
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(1)
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In
the case of incorporation by reference to documents filed by the
Registrant under the Exchange Act, the Registrant’s file number under the
Exchange Act is 333-36379
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Pursuant
to Form S-8, Part II, Item 8(b), the PacificHealth Laboratories, Inc. 2009
Athlete Stock Plan is not subject to the requirements of ERISA, and
no action will be taken to qualify said plan under Section 401 of the Internal
Revenue Code of 1986, as amended.
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:
(a) To include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities
Act");
(b) To reflect in the prospectus any
facts or events arising after the effective date of this 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
this Registration Statement; and
(c) To include any material information
with respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement;
Provided, however, that paragraphs
(1)(a) and (1)(b) above 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
Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining
liability under the Securities Act, each such post effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of the 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, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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)
Insofar as indemnification for liabilities arising under the Securities Act 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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The
Registrant. 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 State of New
Jersey, on this 16th day of March, 2009.
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PACIFICHEALTH
LABORATORIES, INC.
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By:
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/s/ /s/Stephen
P. Kuchen
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Stephen
P. Kuchen, Chief Financial Officer (Principal Financial Officer and
Principal Accounting Officer)
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POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Stephen P. Kuchen,
as his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for such person and in his or her name, place
and stead, in any and all capacities, to sign any or all further amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, 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 or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully 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 in the capacities and on the date
indicated.
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Signature
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Title
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Date
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| /s/
Jason Ash |
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Chief
Executive Officer and President
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March
16, 2009
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| Jason
Ash |
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(Principal
Executive Officer)
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| /s/
Robert Portman |
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Chairman
of the Board
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March
16, 2009
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| Robert
Portman |
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| /s/
Stephen P. Kuchen |
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Principal
Financial and Accounting Officer,
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March
16, 2009
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| Stephen
P. Kuchen |
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Secretary
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| /s/
David I. Portman |
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Director
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March
16, 2009
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| David
I. Portman |
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| /s/
Michael Cahr |
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Director
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March
16, 2009
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| Michael
Cahr |
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| /s/
Adam Mizel |
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Director
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March
16, 2009
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| Adam
Mizel |
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| /s/
Marc Particelli |
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Director
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March
16, 2009
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| Marc
Particelli |
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PacificHealth
Laboratories, Inc.
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Exhibit
No.
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Description
of Exhibits(1)
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3(i)(a)
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Certificate
of Incorporation of PacificHealth Laboratories, Inc. and all amendments
thereto (incorporated by reference to Exhibit 3.1 to PacificHealth
Laboratories, Inc.’s Registration Statement on Form SB-2 (Registration No.
333-36379) filed on September 25, 1997)
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3(i)(b)
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Certificate
of Amendment of Certificate of Incorporation of PacificHealth
Laboratories, Inc. (incorporated by reference to Exhibit 3.3 to
PacificHealth Laboratories, Inc.’s Annual Report on Form 10-KSB filed on
March 31, 2003)
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3(i)(c)
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Certificate
of Designations for Series A Preferred Stock (incorporated by reference to
Exhibit 3.1 to PacificHealth Laboratories, Inc.’s Current Report on Form
8-K filed on January 28, 2005)
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3(i)(d)
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Certificate
of Designations for Series B Preferred Stock, filed with the Secretary of
State of the State of Delaware on April 28, 2005 (incorporated by
reference to Exhibit 3(i) to PacificHealth Laboratories, Inc.’s Current
Report on Form 8-K filed May 4, 2005)
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5.1
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Opinion
of Eckert Seamans Cherin & Mellott, LLC (including
consent)
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23.1
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Consent
of Eckert Seamans Cherin & Mellott, LLC (included in Exhibit
5.1)
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23.2
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Consent
of Weiser LLC
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24.1
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Power
of Attorney (included on signature page of this Registration
Statement)
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99.1
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PacificHealth
Laboratories, Inc. 2009 Athlete Stock Plan
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(1)
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In
the case of incorporation by reference to documents filed by the
Registrant under the Exchange Act, the Registrant’s file number under the
Exchange Act is 333-36379
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Pursuant
to Form S-8, Part II, Item 8(b), the PacificHealth Laboratories, Inc. 2009
Athlete Stock Plan is not subject to the requirements of ERISA, and no action
will be taken to qualify said plan under Section 401 of the Internal Revenue
Code of 1986, as amended.