As filed with the Securities and Exchange Commission on December 23, 2004
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTEGRATED BIOPHARMA, INC.
(Exact name of Registrant as specified in its charter)
Delaware 2834 22-2407475
(State or other jurisdiction of (Primary standard industrial (I.R.S. employer
incorporation or organization) Classification code number Identification no.)
225 Long Avenue
Hillside, New Jersey 07205
(973) 926-0816
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
E. Gerald Kay
Chief Executive Officer
Integrated BioPharma, Inc.
225 Long Avenue
Hillside, New Jersey 07205
(973) 926-0816
(Address, including zip code, and telephone
number including area code, of agent for service)
Copies to:
Michael L. Pflaum, Esq.
Andrew H. Abramowitz, Esq.
Greenberg Traurig, LLP
200 Park Avenue
New York, New York 10166
Telephone: (212) 801-9200
Telecopier: (212) 801-6400
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended, other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| _______
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_| ______
If delivery of this prospectus is expected to be made pursuant to Rule
434, please check the following box. |_| ______
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed Maximum Proposed Maximum Amount
Each Class Amount to be Offering Aggregate of
of Securities Registered Price Per Offering Registration
to be Registered (1) Share Price (2) Fee
---------------- ------------ ---------------- ---------------- ------------
Common Stock, 366,085 $6.93 $2,536,969 $298.60
$0.002 par value
per share
(1) The number of shares being registered represent the shares of the
Registrant's common stock previously issued to the selling stockholders, as
well as the maximum number of shares that may be issued to the selling
stockholders upon the exercise of warrants to purchase 136,000 shares of
the Registrant's common stock. Pursuant to Rule 416(a) under the Securities
Act of 1933, as amended, this registration statement also registers such
additional shares of the Registrant's common stock as may become issuable
as a result of stock splits, stock dividends or similar events.
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) of the Securities Act. The price
per share and aggregate offering price are based upon $6.93, the average of
the high and low sales price of the Registrant's common stock on December
21, 2004, as reported on The American Stock Exchange.
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act, or until this registration statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
================================================================================
The information contained in this prospectus is not complete and may be changed.
These securities may not be sold until the related registration statement filed
with the Securities and Exchange Commission becomes effective. This prospectus
is not an offer to sell nor is it seeking an offer to buy these securities in
any state where the offer or sale is not permitted.
================================================================================
PROSPECTUS
SUBJECT TO COMPLETION, DATED DECEMBER 23, 2004
INTEGRATED BIOPHARMA, INC.
366,085 Shares of Common Stock
All of the common stock offered hereby may be sold from time to time by
and for the account of the selling stockholders named in this prospectus and the
person(s) to whom such stockholders may transfer their shares. The selling
stockholders acquired the shares, or will acquire the shares upon the exercise
of warrants, all of which were issued or are issuable to the selling
stockholders in private placements with us.
The methods of sale of the common stock offered by this prospectus are
described under the heading "Plan of Distribution" on page 5. Except with
respect to the exercise of the outstanding warrants during the exercise period,
we will receive none of the proceeds from the sale of any of the common stock to
which this prospectus relates. See "Use of Proceeds and Expenses of the
Offering" on page 3. Except for brokerage expenses, fees, discounts and
commissions, which will all be paid by the selling stockholders, we will pay all
expenses incurred in connection with the offering described in this prospectus.
The prices at which the selling stockholders may sell the shares of
common stock that are part of this offering will be determined by the prevailing
market price for the shares at the time the shares are sold, a price related to
the prevailing market price, at negotiated prices or prices determined, from
time to time by the selling stockholders. See "Plan of Distribution" on page 5.
Our common stock is listed on the American Stock Exchange (Symbol:
INB). On December 21, 2004, the closing price of the shares was $6.97 per share.
Investing in the common stock involves certain risks.
See "Risk Factors" on page 1.
Neither the SEC nor any state securities commission has approved or
disapproved these securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this Prospectus is __________, 2005.
TABLE OF CONTENTS
The Company....................................................................1
Forward-Looking Information....................................................1
Risk Factors...................................................................1
Use Of Proceeds And Expenses Of The Offering...................................3
Selling Stockholders...........................................................4
Plan Of Distribution...........................................................5
Where You Can Find More Information............................................6
Legal Matters..................................................................8
Experts........................................................................8
THE COMPANY
Integrated BioPharma, Inc., a Delaware corporation is engaged
primarily in manufacturing, marketing and sales of vitamins, nutritional
supplements and herbal products, including vitamins sold as single entity
supplements, in multi-vitamin combinations and in varying potency levels and
in different packaging sizes. We were previously known as Integrated Health
Technologies, Inc. and, prior to that, as Chem International, Inc. We are also
engaged in other lines of business, including the development and sale of
nutritional formulations based on plant-derived minerals through patented
hyperaccumulation technology, and the manufacture and distribution of
Paclitaxel, which is the primary chemotherapeutic agent in the treatment of
breast cancer.
We maintain our executive offices at 225 Long Avenue, Hillside,
New Jersey 07205. Our telephone number is (973) 926-0816.
FORWARD-LOOKING INFORMATION
Some of the statements contained in or incorporated by reference in
this prospectus discuss our plans and strategies for our respective businesses
or state other forward-looking statements, as this term is defined in the
Private Securities Litigation Reform Act of 1995. The words "anticipate,"
"believe," "estimate," "expect," "plan," "intend," "should," "seek,"
"will," and similar expressions are intended to identify these
forward-looking statements, but are not the exclusive means of
identifying them. These forward-looking statements reflect the current views
of our management. However, various risks, uncertainties and contingencies
could cause our actual results, performance or achievements to differ
materially from those expressed in, or implied by, these statements, including
the following:
* our success or failure to implement our business strategies;
* our potential inability to raise additional capital;
* the approval of our pending atent applications;
* our ability to produce Paclitaxel on a commercial scale; and
* other factors discussed under the heading "Risk Factors" and
elsewhere in this prospectus.
We assume no obligation to update any forward-looking statements
contained in this prospectus, whether as a result of new information, future
events or otherwise. For a discussion of important risks of an investment in our
securities, including factors that could cause actual results to differ
materially from results referred to in the forward-looking statements, see "Risk
Factors" below. You should carefully consider the information set forth under
the caption "Risk Factors." In light of these risks, uncertainties and
assumptions, the forward-looking events discussed in or incorporated by
reference in this prospectus might not occur.
RISK FACTORS
You should carefully consider the risks described below before deciding
whether to invest in shares of our common stock. Any investment in our common
stock involves a high degree of risk. The risks and uncertainties described
below are not the only ones we face. Additional risks and uncertainties not
presently known to us may also impair our operations and business.
If we do not successfully address any of the risks described below,
there could be a material adverse effect on our financial condition, operating
results and business, and the trading price of our common stock may decline and
you may lose all or part of your investment. We cannot assure you that we will
successfully address these risks.
Over 366,000 of our shares are eligible for sale and their sale or potential to
sell may depress the market price of our common stock.
Sales of a significant number of shares of our common stock in the
public market could harm the market price of our common stock. This prospectus
covers 366,085 shares of our common stock, which represents 3.0% of the total of
12,565,790 shares issued and outstanding as of December 17, 2004. As additional
shares of our common stock become available for resale in the public market
pursuant to this registration of shares and future registrations of shares and
thereby increase the supply of our common stock, the price of the common stock
could decrease as a result. Some or all of the shares of our common stock also
may be offered from time to time in the open market pursuant to Rule 144, and
these sales may have a depressive effect on the market for our common stock.
103,085 of the 203,085 shares of common stock held by Aloe Commodities
1
International, Inc. included in this prospectus are currently being held in
escrow pending the resolution of a trademark infringement action against us for
which we will be indemnified by Aloe Commodities. The 100,000 shares of common
stock issuable upon exercise of a warrant by Wolfe Axelrod Weinberger Associates
LLC are subject to a so-called "lock-up" agreement, which limits open market
sales by that warrant holder in any calendar week to the greater of 5,000 shares
of our common stock or 12% of the average daily volume of the common stock
during the preceding calendar week. In general, a person who has held restricted
shares for a period of one year may, upon the filing with the SEC of a
notification on Form 144, sell into the market common stock in an amount equal
to the greater of 1% of the outstanding shares or the average weekly number of
shares sold in the last four weeks prior to such sale. These sales may be
repeated once each three months, and any of the restricted shares may be sold by
a non-affiliate after they have been held two years.
The inability to obtain necessary additional capital in the future on acceptable
terms could delay us from executing our business plan or prevent us from doing
so entirely.
We expect to need additional capital in the future to fund our
operations, finance investments in equipment and corporate infrastructure,
increase the range of products we offer and respond to competitive pressures and
perceived opportunities. Cash flow from operations, and cash on hand may not be
sufficient to cover our operating expenses and capital investment needs. We
cannot assure you that additional financing will be available on terms
acceptable to us, if at all. A failure to obtain additional funding could
prevent us from making expenditures that are needed to allow us to grow or
maintain our operations. Increases in business can temporarily reduce our
working capital due to cash flow lags.
If we raise additional funds by selling equity securities, the relative
equity ownership of our existing investors could be diluted or the new investors
could obtain terms more favorable than previous investors. If we raise
additional funds through debt financing, we could incur significant borrowing
costs. The failure to obtain additional financing when required could result in
us being unable to grow as required to maintain profitable operations.
Our revenue would decline significantly if we lose one or more of our most
significant customers, which could have a significant adverse impact on us.
A significant portion of our revenues are concentrated among one
customer, Herbalife International of America, Inc. For the year ended June 30,
2004, Herbalife represented approximately 58% of total revenue. The loss of
Herbalife as a customer could have a significant adverse impact on us.
We depend on our senior management, the loss of whom would have an adverse
effect on us.
We presently are dependent upon the executive abilities of our Chairman
of the Board, President and Chief Executive Officer, E. Gerald Kay, and our
other executive officers. Our business and operations to date chiefly have been
implemented under the direction of these individuals, who presently are, and in
the future will be, responsible for the implementation of our anticipated plans
and programs. While we have obtained key-man life insurance in the amount of
$1,000,000 on the life of Mr. Kay, with our company as the named beneficiary,
the loss or unavailability of the services of one or more of our principal
executives would have an adverse effect on us. Given our present financial
condition, we may encounter difficulty in our ability to recruit and ultimately
hire any replacement or additional executive officers having similar background,
experience and qualifications as those of our current executive officers.
There is no assurance that we will remain listed on an active trading market.
Although our common stock is quoted on the American Stock Exchange,
there can be no assurance that we will, in the future, be able to meet all the
requirements for continued quotation on that exchange. In the absence of an
active trading market or if our common stock cannot be traded on the American
Stock Exchange, our common stock could instead be traded on the OTC Bulletin
Board or in the Pink Sheets. In such event, the liquidity and stock price in the
secondary market may be adversely affected. In addition, in the event our common
stock was delisted, broker-dealers have certain regulatory burdens imposed upon
them which may discourage broker-dealers from effecting transactions in our
common stock, further limiting the liquidity of our common stock.
We may not receive approval for our pending patent applications for nutritional
supplements, which could enable our competitors to use similar methods and
processes.
We are the registered owner of a patent granted for a method of
producing nutritional formulations based on plant-derived minerals. We also have
five patent applications pending before the U.S. Patent and Trademark Office for
methods and processes relating to nutritional supplements containing
methylselenocysteine, production of pharmaceutically active proteins in sprouted
seedlings, a system for transient express of genes in plants, improved plant
transformation and floral transformation. We can give no assurance that we will
be granted such patents. To the extent we are not granted such patents, our
competitors could more easily produce nutritional supplements similar to ours.
2
We have entered into several transactions with entities controlled by some of
our officers and directors, which could pose a conflict of interest.
We have entered into several agreements and arrangements described in
our SEC public filings incorporated by reference in this prospectus, including
the lease of real property from Vitamin Realty Associates, L.L.C., the merger
with NuCycle Acquisition Corp., and the acquisition of the Paxis business from
Trade Investment Services, LLC, that all involved transactions with entities
significantly owned by members of the Kay family, who collectively own a
majority of our shares of common stock. Although we believe that these
transactions were advantageous to us and were on terms no less favorable to us
than could have been obtained from unaffiliated third parties, transactions with
related parties can potentially pose a conflict of interest.
Our executive officers and directors have majority voting power and may take
actions that may not be in the best interest of other stockholders, but in their
own interest.
Our executive officers and directors beneficially own approximately 71%
of our outstanding shares. If these stockholders act together, they may be able
to exert significant control over our management and affairs requiring
stockholder approval, including approval of significant corporate transactions.
This concentration of ownership may have the effect of delaying or preventing a
change in control and might adversely affect the market price of our common
stock. This concentration of ownership may not be in the best interests of all
our stockholders.
We have a staggered board of directors, which could impede an attempt to acquire
us or remove our management.
Our board of directors is divided into three classes, each of which
serves for a staggered term of three years. This division of our board of
directors could have the effect of impeding an attempt to take over our company
or change or remove management, since only one class will be elected annually.
Thus, only approximately one-third of the existing board of directors could be
replaced at any election of directors.
Our product liability insurance may be insufficient to cover possible claims
against us.
In view of the nature of our nutritional supplements business, we are
subject to the inherent risk of product liability claims in the event that among
other things, the use or ingestion of any of our products results in sickness or
injury. We currently maintain product liability insurance under an umbrella
policy in the amount of $5 million per occurrence and $5 million in the
aggregate, which we deem adequate to cover risks associated with such use.
However, there can be no assurance that existing or future insurance coverage
will be sufficient to cover any possible product liability risks or that such
insurance will continue to be available to us on economically feasible terms.
There is no assurance that we will be able to produce Paclitaxel on a commercial
scale.
Our Paxis Pharmaceuticals, Inc. subsidiary uses botanical materials
derived from the yew tree, or taxus baccata, to produce Paclitaxel, a cancer
therapy drug. Yew trees are in limited supply. Paxis has formed a joint venture
with Chatham Biotec, Ltd. to produce extract and intermediate precursor
Paclitaxel from Canadian Taxus trees. We can give no assurance that the joint
venture will be successful in producing such Paclitaxel or that we can locate
alternate sources of yew trees.
USE OF PROCEEDS AND EXPENSES OF THE OFFERING
We will not receive any of the proceeds from the sale of the shares
offered by the selling stockholders. We will receive a maximum of approximately
$650,500 from the exercise of all of the warrants, assuming all of the warrants
are exercised for cash and in full, of which there can be no assurance. Any
proceeds received by us in connection with the exercise of the warrants will be
used for working capital and general corporate purposes. With the exception of
any brokerage fees and commission which are the obligation of the selling
stockholders, we are responsible for the fees, costs and expenses of this
offering which are estimated to be $9,000, inclusive of our legal and accounting
fees, printing costs, "blue sky" filing and other miscellaneous fees and
expenses.
3
SELLING STOCKHOLDERS
The following table sets forth, in the first column, the names of the
selling stockholders and the number of shares being registered for sale as of
the date of the prospectus and sets forth, in the second column, the number of
shares of common stock known by us to be beneficially owned by each of the
selling stockholders as of December 17, 2004. None of the selling stockholders
has had a material relationship with us within the past three years other than
as a result of the ownership of our shares or other securities, except as set
forth below. The shares offered by this prospectus may be offered from time to
time by the selling stockholders.
The third column lists the shares of common stock being offered by this
prospectus by the selling stockholders. Because the exercise price of the
warrants may be adjusted, the number of shares that will actually be issued may
be more or less than the number of shares being offered by this prospectus. The
fourth column assumes the sale of all of the shares offered by the selling
stockholders pursuant to this prospectus. The selling stockholders may sell all,
some or none of their shares in this offering. See "Plan of Distribution."
Number of Shares of Number of Shares Beneficial Ownership
Common Stock of Common Stock After Offering
Selling Stockholder Beneficially Owned to be Sold (Number of Shares)
------------------- ------------------ ---------------- --------------------
Aloe Commodities International, Inc. (1) 203,085 (2) 203,085 (2) 0
Anisfield Investments Ltd. (3) 27,000 27,000 0
Beaufort International Associates Limited (4) 12,000 (5) 12,000 (5) 0
Friendly Capital, LLC (6) 18,000 (5) 18,000 (5) 0
Griffin Securities, Inc. (7) 6,000 (5) 6,000 (5) 0
Wolfe Axelrod Weinberger Associates LLC (8) 100,000 (5) 100,000 (5) 0
--------------------
(1) L. Scott McKnight serves as Chief Executive Officer of Aloe Commodities
International, Inc.. By reason of such relationship, Mr. McKnight may be deemed
to share voting and dispositive power over securities held by Aloe.
(2) 103,085 of the listed shares of common stock held by Aloe are currently
being held in escrow pending the resolution of a trademark infringement action
against us for which we will be indemnified by Aloe.
(3) Jamie E. Levey serves as President of Anisfield Investments Ltd. By reason
of such relationship, Ms. Levey may be deemed to share voting and dispositive
power over securities held by Anisfield.
(4) Taniver Malik serves as Managing Director of Beaufort International
Associates Limited. By reason of such relationship, Mr. Malik may be deemed to
share voting and dispositive power over securities held by Beaufort.
(5) The listed shares are issuable pursuant to currently exercisable warrants.
Because the exercise price of the warrants may be adjusted, the actual number of
shares of common stock that may be issued may be more or less than the number of
shares being offered by this prospectus. The warrants issued to Beaufort,
Friendly Capital, LLC and Griffin Securities, Inc. are exercisable into an
aggregate of 36,000 shares of common stock at a current exercise price of
$14.00. The warrant issued to Wolfe Axelrod Weinberger Associates LLC are
exercisable into an aggregate of 100,000 shares of common stock at a current
exercise price of (i) $1.37 for the first 75,000 shares of common stock, and
(ii) $1.75 for the remaining 25,000 shares of common stock.
(6) Adrian Stecyk serves as Managing Member of Friendly Capital, LLC. By reason
of such relationship, Mr. Stecyk may be deemed to have voting and dispositive
power over securities held by Friendly Capital.
(7) Adrian Stecyk serves as President and Chief Executive Officer of Griffin
Securities, Inc. By reason of such relationship, Mr. Stecyk may be deemed to
have voting and dispositive power over securities held by Griffin Securities.
4
(8) Stephen D. Axelrod and Donald Weinberger serve as Managing Directors of
Wolfe Axelrod Weinberger Associates LLC. By reason of such relationship, Messrs.
Axelrod and Weinberger may be deemed to share voting and dispositive power over
securities held by Wolfe.
PLAN OF DISTRIBUTION
We are registering the shares of common stock issued and issuable upon
exercise of the warrants to permit the resale of these shares of common stock by
the holders of the shares of common stock and the warrants from time to time
after the date of this prospectus. We will not receive any of the proceeds from
the sale by the selling stockholders of the shares of common stock. We will bear
all fees and expenses incident to our obligation to register the shares of
common stock.
The selling stockholders may sell all or a portion of the shares of
common stock beneficially owned by them and offered hereby from time to time
directly or through one or more underwriters, broker-dealers or agents. If the
shares of common stock are sold through underwriters or broker-dealers, the
selling stockholders will be responsible for underwriting discounts or
commissions or agent's commissions. The shares of common stock may be sold in
one or more transactions at fixed prices, at prevailing market prices at the
time of the sale, at varying prices determined at the time of sale, or at
negotiated prices. These sales may be effected in transactions, which may
involve crosses or block transactions,
* on any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of sale;
* in the over-the-counter market;
* in transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
* through the writing of options, whether such options are listed on an
options exchange or otherwise;
* ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
* block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
* purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
* an exchange distribution in accordance with the rules of the
applicable exchange;
* privately negotiated transactions;
* short sales;
* pursuant to Rule 144 under the Securities Act;
* broker-dealers may agree with the selling securityholders to sell a
specified number of such shares at a stipulated price per share;
* a combination of any such methods of sale; and
* any other method permitted pursuant to applicable law.
If the selling stockholders effect such transactions by selling shares
of common stock to or through underwriters, broker-dealers or agents, such
underwriters, broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling stockholders or
commissions from purchasers of the shares of common stock for whom they may act
as agent or to whom they may sell as principal (which discounts, concessions or
commissions as to particular underwriters, broker-dealers or agents may be in
5
excess of those customary in the types of transactions involved). In connection
with sales of the shares of common stock or otherwise, the selling stockholders
may enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the shares of common stock in the course of hedging in
positions they assume. The selling stockholders may also sell shares of common
stock short and deliver shares of common stock covered by this prospectus to
close out short positions. The selling stockholders may also loan or pledge
shares of common stock to broker-dealers that in turn may sell such shares.
The selling stockholders may pledge or grant a security interest in
some or all of the preferred shares, warrants or shares of common stock owned by
them and, if they default in the performance of their secured obligations, the
pledgees or secured parties may offer and sell the shares of common stock from
time to time pursuant to this prospectus or any amendment to this prospectus
under Rule 424(b)(3) or other applicable provision of the Securities Act of
1933, as amended, amending, if necessary, the list of selling stockholders to
include the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus. The selling stockholders also may transfer
and donate the shares of common stock in other circumstances in which case the
transferees, donees, pledgees or other successors in interest will be the
selling beneficial owners for purposes of this prospectus.
The selling stockholders and any broker-dealer participating in the
distribution of the shares of common stock may be deemed to be "underwriters"
within the meaning of the Securities Act, and any commission paid, or any
discounts or concessions allowed to, any such broker-dealer may be deemed to be
underwriting commissions or discounts under the Securities Act. At the time a
particular offering of the shares of common stock is made, a prospectus
supplement, if required, will be distributed which will set forth the aggregate
amount of shares of common stock being offered and the terms of the offering,
including the name or names of any broker-dealers or agents, any discounts,
commissions and other terms constituting compensation from the selling
stockholders and any discounts, commissions or concessions allowed or reallowed
or paid to broker-dealers.
Under the securities laws of some states, the shares of common stock
may be sold in such states only through registered or licensed brokers or
dealers. In addition, in some states the shares of common stock may not be sold
unless such shares have been registered or qualified for sale in such state or
an exemption from registration or qualification is available and is complied
with.
There can be no assurance that any selling stockholder will sell any or
all of the shares of common stock registered pursuant to the shelf registration
statement, of which this prospectus forms a part.
The selling stockholders and any other person participating in such
distribution will be subject to applicable provisions of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder, including,
without limitation, Regulation M of the Exchange Act, which may limit the timing
of purchases and sales of any of the shares of common stock by the selling
stockholders and any other participating person. Regulation M may also restrict
the ability of any person engaged in the distribution of the shares of common
stock to engage in market-making activities with respect to the shares of common
stock. All of the foregoing may affect the marketability of the shares of common
stock and the ability of any person or entity to engage in market-making
activities with respect to the shares of common stock.
We will pay all expenses of the registration of the shares of common
stock pursuant to the registration rights agreement, estimated to be $9,000 in
total, including, without limitation, Securities and Exchange Commission filing
fees and expenses of compliance with state securities or "blue sky" laws;
provided, however, that a selling stockholder will pay all underwriting
discounts and selling commissions, if any. We will indemnify the selling
stockholders against liabilities, including some liabilities under the
Securities Act, in accordance with the registration rights agreements, or the
selling stockholders will be entitled to contribution. We may be indemnified by
the selling stockholders against civil liabilities, including liabilities under
the Securities Act, that may arise from any written information furnished to us
by the selling stockholder specifically for use in this prospectus, in
accordance with the related registration rights agreements, or we may be
entitled to contribution.
Once sold under the shelf registration statement, of which this
prospectus forms a part, the shares of common stock will be freely tradable in
the hands of persons other than our affiliates.
6
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the
Securities Act of 1933 with respect to the shares of common stock offered by
this prospectus on Form S-3. This prospectus is a part of that registration
statement. The rules and regulations of the SEC allow us to omit some
information included in the registration statement from this document.
In addition, we file reports, proxy statements and other information
with the SEC under the Securities Exchange Act of 1934, as amended. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference rooms.
You may read and copy this information at the following location of the SEC:
Public Reference Section
Room 1024
450 Fifth Street, N.W.
Judiciary Plaza
Washington D.C. 20549
The SEC maintains an Internet site (http://www.sec.gov) that contains
our reports, proxy statements and other information about us and other companies
who file electronically with the SEC.
Our common stock is traded on the American Stock Exchange.
The SEC allows us to "incorporate by reference" information into this
document. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The
information incorporated by reference is considered to be a part of this
document, except for any information that is superseded by information that is
included directly in this document.
This document incorporates by reference the documents listed below
that we have previously filed with the SEC since the end of our last fiscal
year. They contain important information about us and our financial
condition. Some of these filings have been amended by later filings, which are
also listed.
SEC FILINGS DESCRIPTION OR PERIOD/AS OF
Annual Report on Form 10-KSB Fiscal Year ended June 30, 2004 (filed
with the SEC on September 28, 2004 and
amended on November 10, 2004)
Quarterly Report on Form 10-QSB Period ended September 30, 2004 (filed
with the SEC on November 12, 2004)
Current Report on Form 8-K Dated October 12, 2004 relating to the
appointment of a new member of the
Science Advisory Board of one of our
subsidiaries (filed with the SEC on
October 12, 2004)
Current Report on Form 8-K Dated October 21, 2004 relating to an
agreement by one of our subsidiaries to
develop a flu vaccine (filed with the
SEC on October 22, 2004)
Current Report on Form 8-K Dated November 8, 2004 relating to the
adoption of a new charter of the Audit
Committee (filed with the SEC on
November 10, 2004)
Current Report on Form 8-K Dated November 12, 2004 relating to the
release of financial results (filed
with the SEC on November 15, 2004)
We incorporate by reference additional documents that we may file
with the SEC after the date of this document. These documents include periodic
reports, including Annual Reports on Form 10-KSB, Quarterly Reports on
Form 10-QSB and Current Reports on Form 8-K, as well as proxy statements.
We also incorporate by reference our Registration Statement on Form
8-A, filed with the SEC on April 15, 2003, pursuant to which our common stock
was registered under Section 12(b) of the Securities Exchange Act of 1934.
You can obtain any of the documents incorporated by reference into this
document from us, or from the SEC through the SEC's web site at the address
provided above. You can also obtain documents incorporated by reference in this
document by requesting them in writing or by telephone from us at the following
addresses:
Integrated BioPharma, Inc.
225 Long Avenue
Hillside, New Jersey 07205
Attention: Eric Friedman
(973) 926-0816
7
If you request any incorporated documents from us, we will mail them to
you by first class mail, or another equally prompt means, within one business
day after we receive your request.
We have not authorized anyone to give any information or make any
representation about us that differs from, or adds to, the information in this
document or in our documents that are publicly filed with the SEC. Therefore, if
anyone does give you different or additional information, you should not rely on
it.
If you are in a jurisdiction where it is unlawful to offer to exchange
or sell, or to ask for offers to exchange or buy, the securities offered by this
document or to ask for proxies, or if you are a person to whom it is unlawful to
direct these activities, then the offer presented by this document does not
extend to you.
The information contained in this document speaks only as of its date
unless the information specifically indicates that another date applies.
LEGAL MATTERS
Certain legal matters with respect to the validity of our common stock
will be passed upon for us by Greenberg Traurig, LLP, 200 Park Avenue, New York,
NY 10166.
EXPERTS
Our consolidated financial statements included in our June 30, 2004
Annual Report on Form 10-KSB as of June 30, 2004 and 2003, have been
incorporated by reference in this prospectus and in the registration statement
of which this prospectus is a part in reliance upon the report of Amper,
Politziner & Mattia, P.C., independent auditors, and upon the authority of
this firm as experts in accounting and auditing.
================================================================================
366,085 SHARES
INTEGRATED BIOPHARMA, INC.
COMMON STOCK
---------------
PROSPECTUS
---------------
___________, 2005
================================================================================
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by us in connection with the offering
described in this Registration Statement are as follows:
Registration fee.......................... $ 300
Legal fees and expenses................... 5,000
Accounting fees and expenses.............. 5,000
Printing and duplicating expenses......... 500
Miscellaneous expenses.................... 200
--------
Total..................................... $ 9,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, or the DGCL,
generally provides that all directors and officers (as well as other employees
and individuals) may be indemnified against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with certain specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation -- a "derivative action"), 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, had no reasonable cause to believe their conduct was
unlawful. A similar standard of care is applicable in the case of derivative
actions, except that indemnification extends only to expenses (including
attorneys' fees) actually and reasonably incurred in connection with defense or
settlement of an action and the DGCL requires court approval before there can be
any indemnification where the person seeking indemnification has been found
liable to the corporation. Section 145 of the DGCL also provides that the rights
conferred thereby are not exclusive of any other right that any person may be
entitled to under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, and permits a corporation to advance expenses to or on
behalf of a person to be indemnified upon receipt of an undertaking to repay the
amounts advanced if it is determined that the person is not entitled to be
indemnified.
The registrant's certificate of incorporation and bylaws provide that
each person who was or is made a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a director or officer of the registrant (or is or was serving at the
request of the registrant as a director or officer of another entity), shall be
indemnified and held harmless by the registrant against all expenses (including
attorneys' fees), judgments, fines and amounts paid or to be paid in settlement
actually and reasonably incurred or suffered by such person in connection
therewith, if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
registrant.
The certificate of incorporation and bylaws also provide that the
rights conferred thereby are contract rights, that they are not exclusive of any
other rights that an officer or director may have or hereafter acquire under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
and that they include the right to be paid by the registrant the expenses
incurred in defending any specified action, suit or proceeding in advance of its
final disposition provided that, if the DGCL so requires, such payment shall
only be made upon delivery to the registrant by the officer or director of an
undertaking to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
the bylaws or otherwise.
ITEM 16. EXHIBITS.
5.1 Opinion of Greenberg Traurig, LLP as to legality of securities being
offered. (1)
10.1 Asset Purchase Agreement, dated as of October 22, 2003, among
Integrated BioPharma, Inc., Aloe Commodities International, Inc.,
and other parties listed therein. (2)
10.2 Registration Rights Agreement, dated as of October 22, 2003, between
Integrated BioPharma, Inc. and Aloe Commodities International, Inc. (2)
10.3 Settlement Agreement, dated as of December 20, 2004, between
Integrated BioPharma, Inc. and Wolfe Axelrod Weinberger Associates
LLC. (1)
10.4 Form of Warrant, issued on December 20, 2004 by Integrated
BioPharma, Inc. to Wolfe Axelrod Weinberger Associates LLC. (1)
10.5 Form of Warrant, issued on December 22, 2004 by Integrated BioPharma, Inc.
to Beaufort International Associates Limited, Friendly Capital, LLC and
Griffin Securities, Inc. (1)
23.1 Consent of Amper, Politziner & Mattia, P.C. (1)
23.2 Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1)
(1) Filed herewith.
(2) Incorporated by reference to the exhibits to Registrant's Current
Report on Form 8-K dated October 22, 2003 and filed with the SEC on
November 6, 2003.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the 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 and of the estimated
maximum offering range may be reflected on 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 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 paragraph (1)(i) and
(1)(ii) above do not apply if 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 Securities Exchange Act of 1934, as amended, that are
incorporated by reference in the registration statement.
(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.
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
Securities Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Securities
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.
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 provisions set forth in response to Item 15, 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.
I-2
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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Hillside, State of New Jersey on December 23, 2004.
INTEGRATED BIOPHARMA, INC.
By: /s/ E. Gerald Kay
----------------------
Title: Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Integrated BioPharma,
Inc., hereby severally constitute and appoint E. Gerald Kay and Eric Friedman
and each of them (with full power to each of them to act alone), our true and
lawful attorneys-in-fact and agents, with full power of substitution, for us and
in our stead, in any and all capacities, to sign any and all amendments
(including pre-effective and post-effective amendments) to this Registration
Statement and all documents relating thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the U.S.
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing necessary or advisable to be done in and about the premises,
as full to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all the said attorneys-in-fact and agents, or any of
them, or their 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 dates indicated.
SIGNATURE TITLE DATE
/s/ E. Gerald Kay Chairman, President and Chief Executive Officer December 23, 2004
-----------------------------------------------
E. Gerald Kay (Principal Executive Officer)
/s/ Eric Friedman Vice President and Chief Financial Officer (Principal December 23, 2004
-----------------------------------------------
Eric Friedman Accounting and Financial Officer)
/s/ Riva Kay Sheppard Director December 23, 2004
-----------------------------------------------
Riva Kay Sheppard
/s/ Christina Kay Director December 23, 2004
-----------------------------------------------
Christina Kay
/s/ Seymour Flug Director December 23, 2004
-----------------------------------------------
Seymour Flug
/s/ Robert B. Kay Director December 23, 2004
-----------------------------------------------
Robert B. Kay
/s/ Glenn Chang Director December 23, 2004
-----------------------------------------------
Glenn Chang
/s/ Zarko Kraljevic Director December 23, 2004
-----------------------------------------------
Zarko Kraljevic
/s/ Robert Canarick Director December 23, 2004
-----------------------------------------------
Robert Canarick
/s/ Carl DeSantis Director December 23, 2004
-----------------------------------------------
Carl DeSantis
I-3