fs80410_nxt.htm
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________________

FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
___________________________________

NXT Nutritionals Holdings, Inc.
(Exact name of registrant as specified in its charter)

Delaware
    
(State or other jurisdiction of incorporation or organization)
  
(I.R.S. Employer Identification No.)

56 Jackson Street
Holyoke, MA 01040
 (Address of principal executive offices) (Zip Code)
________________________________________________

NXT Nutritionals Holdings, Inc.
Endorsement Agreement
________________________________________________

Corporation Service Company
2711 Centerville Road, Suite 400
Wilmington, DE 19808
 (Name and address of agent for service)

(302)636-5401
(Telephone number, including area code, of agent for service)
 
Copy to:
 
Gregg E. Jaclin, Esq.
Kristina L. Trauger, Esq.
Anslow & Jaclin, LLP
195 Route 9 South, Suite 204
Manalapan, New Jersey 07726

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule12b-2 of the Exchange Act.
 
Large accelerated filer
¨
Accelerated filer
¨
Non-accelerated filer
¨
Smaller reporting company
x
(Do not check if a smaller reporting company)
      
 
 
 
 
 

CALCULATION OF REGISTRATION FEE

Title of securities
To be registered (1)
  
Amount to be
Registered (1)
    
Proposed
Maximum
Offering
Price
per share (2)
    
Proposed
Maximum
Aggregate
Offering
Price (2)
    
Amount of
Registration
Fee
  
                         
Common Stock, par value $0.001 per share
    
120,000
    
$
0.40
    
$
48,000
    
$
3.09
  

(1)  
Covers an aggregate of 120,000 shares of Common Stock issuable pursuant to the Endorsement Agreement, between the Registrant and Eddie George, and pursuant to Rule 416(a) under the Securities Act of 1933, as amended, an indeterminate number of additional shares which may be offered and issued to prevent dilution resulting from stock dividends, stock splits, recapitalization or any other similar transactions, which results in an increase in the number of the Registrant’s outstanding shares of common stock.

(2)  
The proposed maximum offering price per share and the proposed maximum aggregate offering price have been estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rules 457(c) and 457(h) under the Securities Act of 1933, as amended, on the basis of the average of the high and low sales  prices of the common stock on the OTC Bulletin Board on May 17 2010, a date within five (5) trading days prior to the date of the filing of this Registration Statement.
 
EXPLANATORY NOTE
 
This Registration Statement on Form S-8 is filed by NXT Nutritionals Holdings, Inc. (the “Registrant”) relating to 120,000 shares of its common stock, par value $0.001 per share, issuable pursuant to the Endorsement Agreement between the Registrant and Eddie George dated March 1, 2010 (the “Endorsement Agreement”).  A copy of the Endorsement Agreement is attached hereto as Exhibit 10.1.
 
PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
 
As permitted by the rules of the Securities and Exchange Commission (the "Commission"), this Registration Statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the plan as required by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Commission as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
 
PART II
 
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
Item 3.  Incorporation of Certain Documents by Reference.

We incorporate by reference in this Registration Statement the following documents and information filed by the Registrant with the Commission.
 
(a)  
The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2009, as filed with the Commission on March 31, 2010.
 
 
 
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(b)  
The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, as filed with the Commission on May 17, 2010.
   
(c)  
The Registrant’s Current Reports on Form 8-K filed with the Commission on January 27, 2010, February 18, 2010 and March 1, 2010.
   
(d)  
In addition, the Registrant hereby incorporates by reference in this Registration Statement the description of the Registrant’s common stock, par value $0.001 per share, contained in the Registrant’s Registration Statement on Form SB-2 as filed with the Commission on November 27, 2007 pursuant to the Securities Act and the Registrant’s Registration Statement on Form S-1 as filed with the Commission on April 21, 2010, and all amendments and reports filed with the Commission for the purpose of updating such description.
 
All other reports subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities offered pursuant to this Registration Statement have been sold or that deregisters all securities then remaining unsold, shall also be deemed to be incorporated by reference herein and to be a part hereof from the dates of filing of such documents.

Item 4. Description of Securities.
 
Not Applicable.
 
Item 5. Interest of Named Experts and Counsel.
 
None.
 
Item 6. Indemnification of Directors and Officers.
 
Section 102(b)(7) of the DGCL enables a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director to a corporation or its stockholders for violations of the director’s fiduciary duty, except:
 
●
for any breach of a director’s duty of loyalty to the corporation of its stockholders,
●
for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
●
pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions), or
●
for any transaction from which a director derived an improper personal benefit.
 
Our certificate of incorporation provides in effect for the elimination of the liability of directors to the extent permitted by the DGCL.
 
Section 145 of the DGCL provides, in summary, that directors and officers of Delaware corporations are entitled, under certain circumstances, to be indemnified against all expenses and liabilities (including attorney’s fees) incurred by them as a result of suits brought against them in their capacity as a director or officer, if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if they had no reasonable cause to believe their conduct was unlawful; provided, that no indemnification may be made against expenses in respect of any claim, issue or matter as to which they shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, they are fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Any such indemnification may be made by the corporation only as authorized in each specific case upon a determination by the stockholders or disinterested directors that indemnification is proper because the indemnitee has met the applicable standard of conduct. Our bylaws entitle our officers and directors to indemnification to the fullest extent permitted by the DGCL.
 
 
 
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We have agreed to indemnify each of our directors and certain officers against certain liabilities, including liabilities under the Securities Act of 1933.
 
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to our directors, officers and controlling persons pursuant to the provisions described above, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than our payment of expenses incurred or paid by our director, officer or controlling person 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, we will, unless in the opinion of our 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.
 
Item 7.  Exemption from Registration Claimed.
 
Not Applicable.
 
Item 8. Exhibits.
 
Exhibit Number 
Description
5.1 
Consent and Opinion of Anslow & Jaclin, LLP
10.1
Endorsement Agreement between the Registrant and Eddie George, dated March 1, 2010
23.1
Consent of Berman & Company, P.A.
23.2
Consent of Anslow & Jaclin, LLP (included in opinion filed as Exhibit 5.1).
24.1
Power of Attorney (see signature page)
                                                               
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:

 
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act;
 
 
(ii)
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 the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this 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 (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
 
 
 
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(2)
That, for the purpose of determining any 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 such securities at that time shall be deemed to be the initial bona fide offering thereof.

 
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
(b)
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the 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.
 
 
 
 
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SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, NXT Nutritionals Holdings, Inc. 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 on this 19th day of May, 2010.
 
 
NXT NUTRITIONALS HOLDINGS, INC.
 
 
By:
/s/  Francis McCarthy                        
   
Francis McCarthy
President and Chief Executive Officer
     
  By: /s/  David Briones
    David Briones
Chief Financial Officer
 
 
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED:
  
Signature
  
Title
  
Date
 
/s/ Francis McCarthy
    
President, Chief Executive Officer, Secretary and Director
    
Francis McCarthy
  
 
  
May 19, 2010
 
/s/ David Briones
    
Chief Financial Officer
    
David Briones
  
 
  
May 19, 2010
 
/s/ Mark A. Giresi
    
Chief Operating Officer and Director
    
Mark A. Giresi
  
 
  
May 19, 2010
 
/s/ Richard M. Jordan
  
Executive Vice President, General Manager, and Director
    
Richard  M. Jordan
  
 
  
May 19, 2010
 
/s/ David Deno
    
Director
    
David Deno
  
 
  
May 19, 2010
 
/s/ Theodore Mandes, II
  
Director
    
Theodore Mandes, II
  
 
  
May 19, 2010
 
/s/ Paul S. Auerbach
    
Director
    
Paul S. Auerbach
  
 
  
May 19, 2010
 
/s/ Ann McBrien
  
Director
    
Ann McBrien
  
 
  
May 19, 2010
 

 
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