SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
PRE-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
IGI, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
01-0355758
(IRS Employer Identification No.)
Wheat Road and Lincoln Avenue, Buena, New Jersey 08310
(856) 697-1441
(Address, Including Zip Code and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Copies to:
Robert E. McDaniel Paul C. Remus, Esquire
IGI, Inc. Devine, Millimet & Branch, P.A.
Wheat Road and Lincoln Avenue, 111 Amherst Street
Buena, New Jersey 08310 P.O. Box 719
(856) 697-1441 Manchester, New Hampshire 03105
(603) 669-1000
(Name, Address, Including Zip Code,
and Telephone Number, Including
Area Code, of Agent for Service of Process)
Approximate date of commencement of proposed sale to public: From time
to time after the effective date of this registration statement.
If the only securities being registered on this from 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, 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, 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 the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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 of 1933 or until the registration
statement shall thereafter become effective on such date as the Commission,
acting pursuant to said Section 8(a) may determine.
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PROSPECTUS
IGI, INC.
1,907,543 SHARES COMMON STOCK
The selling stockholder identified on page 8 is offering for resale
1,907,543 shares of our common stock under this prospectus.
Our common stock is traded on the American Stock Exchange under the
symbol "IG". On November 15, 2000, the last reported sale price of the
Common Stock was $0.625 per share.
Investing in our common stock involves a high degree of risk. You
should consider carefully the risk factors beginning on page 2 in this
prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this Prospectus. Any representation
to the contrary is a criminal offense.
The date of this Prospectus is November __, 2000.
THE COMPANY 3
RISK FACTORS 3
We Need to Renegotiate our Loans 3
We Have Losses from Operations and Need to Continue to Borrow 4
Due to FDA Concerns, We May Need to Stop the Sale of Some Products
or Pay Fines 5
We Face Investigations Relating to Hazardous Wastes 6
We Are Being Investigated by the SEC 6
Warrants and Options That We Have Issued May Cause Dilution of
Shareholder Equity 6
WHERE YOU CAN FIND MORE INFORMATION 7
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE 8
CAUTIONARY STATEMENT 9
THE OFFERING AND THE SELLING SHAREHOLDER 9
The Shares 9
The Selling Shareholder 9
Use of Proceeds 10
Plan of Distribution 10
EXPERTS 12
LEGAL MATTERS 13
THE COMPANY
IGI, Inc. was incorporated in Delaware in 1977. Our executive offices
are at Wheat Road and Lincoln Avenue, Buena, New Jersey. We have two
distinct business lines:
Consumer Products Production and marketing of
cosmetics and skin care products;
and
Companion Pet Products Production and marketing of
companion pet products such as
pharmaceuticals, nutritional
supplements and grooming aids.
Until recently, we had a third line of business, our poultry vaccine
products business operated under the name "Vineland Laboratories." We sold
that business line on September 15, 2000. That sale is described in more
detail in our Current Report on Form 8-K dated September 28, 2000, which is
incorporated by reference into this prospectus.
Our mailing address is: IGI, Inc., Wheat Road and Lincoln Avenue,
Buena, New Jersey 03810, and our telephone number is (856) 697-1441.
RISK FACTORS
The shares offered by this prospectus involve a high degree of risk.
You should not purchase any of these shares unless you can afford to lose
your entire investment. Before purchasing any of these shares, you should
consider carefully the following factors, in addition to the other
information concerning IGI, Inc. and its business included or incorporated
by reference in this prospectus.
We Need to Renegotiate our Loans
Our independent public accountants have issued an opinion on our
financial statements containing an explanatory paragraph regarding our
ability to continue in business as a going concern. If we fail to meet
requirements in our loan documents and do not receive waivers from the
lenders, our lenders could demand repayment of our loans. Demands for
repayment could lead to curtailments of business operations, sales of
assets or possibly the commencement of bankruptcy proceedings.
Our problems were particularly acute prior to the completion of the
sale of our Vineland Laboratories poultry vaccine products division on
September 15, 2000. During the second and third quarters of 2000, our
financial results deteriorated significantly. This deterioration resulted
largely from poor operating results in our Vineland Laboratories division
and our decision to stop the production of two pet care products as a result
of a review of our pet products division by the Food and Drug
Administration. Because of these developments, we were unable to meet the
financial covenants in our debt agreements, and we sought and obtained
agreements from our lenders not to exercise their rights to declare our
loans immediately due and payable. The lenders agreed to these waivers and
loaned additional funds to us so that we could complete the sale of our
Vineland Laboratories division. Under these agreements with our lenders,
the waivers would have expired and our loans would have been immediately due
and payable if we had not completed the Vineland Laboratories sale as
scheduled. We would not have had the funds to repay the loans at that time.
As a result of these new developments, which increased the uncertainty
regarding our ability to repay our debt, in August, 2000 we reclassified the
long-term debt on our financial statements as of December 31, 1999 as short
term debt. The proceeds from the Vineland Laboratories sale were used to
repay a significant portion of our debt. However, we remain a highly
leveraged company. Our loan agreements contain restrictive covenants and
requirements, including requirements to achieve minimum tangible net worth
and minimum fixed charge coverage ratios. Furthermore, we are restricted in
our ability to borrow under our revolving line of credit based on qualifying
accounts receivable and inventory. Because of the Vineland Laboratories
sale, we no longer have the same amount of inventory and accounts receivable
nor do we have the same volume of operations to support our overhead and
administrative structure. As a result, we believe that we will need to
renegotiate the terms of our loan agreements in order to assure that we can
comply with the covenants and restrictions of these agreements after giving
effect to the Vineland Laboratories sale.
We Have Losses from Operations and Need to Continue to Borrow
The completion of the Vineland Laboratories sale enabled us to repay
$11,693,000 out of our total borrowings from our lenders of $21,560,000. We
also disposed of a division that was generating operating losses. However,
after the sale, we still have an administrative infrastructure that had been
sustained, in part, by the operating revenues from the poultry vaccines
business. We are taking steps to reduce expenses in response to the
Vineland Laboratories sale, but we cannot predict whether we will be able to
cut costs sufficiently to become profitable in the near term.
For the three months ended September 30, 2000, we had a net loss of
$10,772,000, which resulted in our shareholder equity becoming a deficit.
Part of this net loss was comprised of the following:
* An additional valuation allowance of $6,448,000. This allowance
is an offsetting item to deferred taxes. We established this
allowance by accruing additional income tax expense. It
reflects our analysis of the uncertainty that we will be able to
utilize the net operating loss carryforwards and other tax
benefits that we have been carrying as assets on our balance
sheet.
* A loss from discontinued operations of $1,499,000. This amount
reflects the operating loss we incurred during the third quarter
in our Vineland Laboratories division before we sold it.
* $984,000 extraordinary loss from extinguishment of debt. We had
incurred expenses in connection with our loans that were being
amortized over the life of the loans. When we prepaid some of
those loans with the proceeds from the Vineland sale, we
expensed $984,000 of debt expense associated with the portion of
debt permanently repaid.
We are currently generating losses that may extend through at least
the end of the year 2000. We may also continue to be unable to comply with
financial covenants in our debt agreements or to generate levels of
qualifying inventory and receivables to enable us to borrow under our
revolving credit line.
Resolution of the issues raised by the FDA relating to our pet
products division may include the need to upgrade equipment and
manufacturing processes associated with the pet products business. We
cannot predict how much those upgrades will cost or how we will finance
them.
Due to FDA Concerns, We May Need to Stop the Sale of Some
Products or Pay Fines
Our operations and products are subject to regulation by various state
and federal agencies, including the federal Food and Drug Administration.
As a result of inspections on April 17, 2000, on July 5, 2000, the FDA
issued an inspection report containing a number of unfavorable observations
regarding our pet products business. In an effort to address many of the
FDA's concerns, in June, 2000 we permanently discontinued production and
shipment of Liquichlor and temporarily stopped production of Cerumite, both
products of our pet products division. The aggregate annual sales volume
for these products for the fiscal year ended December 31, 1999 was
$1,059,000.
When the FDA receives our formal response to the July 5, 2000
observations, the FDA will evaluate our response and determine the ultimate
outcome of the FDA inspection. An unfavorable outcome could result in
fines, penalties and the potential halt of the sale of some of the regulated
products of our pet care business, any or all of which could have important
negative effects on our company. Thus far this year, we have incurred
expenses of $884,000 in connection with this inspection.
We Face Investigations Relating to Hazardous Wastes
Our research and development processes involve the controlled use of
hazardous materials, chemicals, viruses and bacteria. We are subject to
federal, state and local laws, regulations and standards governing the use,
manufacture, storage, handling and disposal of such materials and some of
the waste products we generate.
On April 6, 2000, officials of the New Jersey Department of
Environmental Protection inspected a storage site owned by us in Buena, New
Jersey and issued a Notice of Violation relating to the storage of waste
materials in a number of trailers at the site. We have established a
disposal and cleanup schedule and are in the process of removing materials
from the site. Small amounts of hazardous wastes were discovered during
this process, and we received a notice of violation relating to the storage
of these materials. We are cooperating with authorities and expect the
assessment of fines and penalties. We have expensed the full estimated cost
($160,000) of the disposal and cleanup.
In addition, to test for possible groundwater contamination from a
May, 2000 fuel oil spill at our former Vineland Laboratories facility, we
installed a test well. We have now received the results from that test
well, and they show no contamination. We have expensed the costs of the
initial remediation and the costs of drilling the test well. Under the
terms of the Vineland Laboratories sale, we have retained any liability for
this spill.
We Are Being Investigated by the SEC
We are the subject of an investigation by the Securities and Exchange
Commission, which was commenced in April, 1998. The investigation relates
to fraudulent actions taken by former members of our management. Upon
becoming aware of the fraudulent activity, our Board of Directors commenced
an internal investigation which led to the termination of employment of
those responsible. We then cooperated fully with the staff of the
Commission and disclosed to the Commission the results of our internal
investigation. On July 26, 2000, we reached an agreement in principle with
the staff of the Commission to resolve this matter. That agreement is
subject to approval by the Commission. If the agreement is approved, we
will neither admit nor deny that the we violated the financial reporting and
record-keeping requirements of Section 13 of the Securities Exchange Act of
1934 for the fiscal years 1995, 1996 and 1997 and will agree to the entry of
an order requiring us to cease and desist from any such violation in the
future. The agreement does not provide for any monetary penalty. If the
Commission does not approve the agreement, then the investigation will
likely continue, and we cannot predict the results.
Warrants and Options That We Have Issued May Cause
Dilution of Shareholder Equity
We have issued warrants to American Capital Strategies, Ltd. which
entitle American to purchase up to 1,907,543 shares of our common stock at a
price of $.01 per share. If American exercises these warrants, the maximum
payment that we will receive is $19,075. The shares issuable upon exercise
of these warrants constitute approximately 15.7% of the current number of
shares outstanding. The issuance of shares upon the exercise of these
warrants will likely have a significant dilutive effect on the tangible net
book value per share of our common stock.
We have also issued common stock and granted stock options pursuant to
employee benefit plans we have adopted. As of October 17, 2000, we had
360,000 shares of our common stock reserved for issuance under these plans
to consultants, scientific advisors, employees and directors, and options to
purchase 2,186,218 shares of our common stock were outstanding and are
exercisable at prices of between $1.56 per share and $9.88 per share. If we
issue any shares upon the exercise of these options at prices below the then
current tangible net book value per share, the issuance will also be
dilutive.
Our future financing efforts may be adversely affected by the
existence of these options and warrants. Holders may exercise them at times
when we would otherwise be able to obtain equity capital on terms more
favorable to us. Furthermore, the market price of our stock could be
adversely affected if holders exercise the options and warrants and sell a
substantial number of shares in the market.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You may read
and copy any reports, statements or other information that we file at the
Securities and Exchange Commission's public reference room at Judiciary
Plaza, 450 Fifth Street, NW, Washington, D.C. 20549 and at the regional
offices of the Commission located at Seven World Trade Center, 13th Floor,
New York, New York 10048 and at Northwest Atrium Center, 500 W. Madison
Street, Suite 1400, Chicago, Illinois 60661-2511. In addition, electronic
versions of these documents are available at the Commission's web site at
http://www.sec.gov. Since our common stock is listed on the American Stock
Exchange, this information is also available at its offices at 86 Trinity
Place, New York, New York 10006.
We have filed with the Securities and Exchange Commission a
registration statement on Form S-3 under the Securities Act of 1933. This
prospectus constitutes a part of the registration statement. Some of the
information in the registration statement has been omitted from this
prospectus in accordance with the rules and regulations of the Commission.
The registration statement is available for you to review at the locations
specified above. Our description in this prospectus of any document filed
as part of the registration statement is qualified by reference to that
document; you should refer to the document itself for a complete statement
of its provisions.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can
disclose important information to you by referring you to those documents.
The information incorporated by reference is considered to be part of this
prospectus except to the extent it is superseded by information contained
directly in this prospectus or in later filed documents incorporated by
reference in this prospectus.
We incorporate by reference the documents listed below and any future
filings made with the Securities and Exchange Commission under Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the
date of this prospectus and prior to the time all of the securities offered
by this prospectus have been sold:
(a) Our Annual Report on Form 10-K for the year ended December 31,
1999, as amended by Form 10-K/A filed September 1, 2000;
(b) Our Quarterly Report on Form 10-Q for the quarter ended March
31, 2000;
(c) Our Quarterly Report on Form 10-Q for the quarter ended June 30,
2000, as amended by Form 10-Q/A filed September 1, 2000;
(d) Our Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000, as filed on November 14, 2000;
(e) Our Current Reports on Form 8-K dated June 19, 2000, July 17,
2000, July 23, 2000 and September 28, 2000;
(f) The Definitive Proxy Statement issued on behalf of our Board of
Directors in connection with the special meeting of our
shareholders held on September 15, 2000; and
(g) The description of our common stock contained in our
Registration Statement on Form 8 A dated June 9,1988 registering
our common stock under Section 12(b) of the Exchange Act,
including any amendments or reports filed for the purpose of
updating such description.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
IGI, Inc.
Wheat Road and Lincoln Avenue
P.O. Box 687, Buena, New Jersey 08310
Attention: Robert E. McDaniel, Chief Executive Officer
(856) 697-1441
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone to provide you with additional or different information.
You should not assume that any information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
CAUTIONARY STATEMENT
This prospectus and the documents referred to above contain "forward
looking" statements, including, among others, the statements regarding the
amount and nature of claims or liabilities that may be asserted against us,
investigations regarding our company, arrangements with our lenders and our
prospects and future operating results. Words such as "anticipates,"
"believes," "expects," "intends," "plans," and similar expressions are
intended to identify "forward-looking" statements. All of these "forward-
looking" statements are inherently uncertain, and stockholders must
recognize that actual events could cause actual results to differ materially
from our expectations.
THE OFFERING AND THE SELLING SHAREHOLDER
The Shares
All of the shares of common stock offered by this prospectus will be
sold for the account of American Capital Strategies, Ltd. or its pledgees,
donees, transferees or other successors-in-interest.
The Selling Shareholder
We have two credit facilities: a $22 million senior bank credit
agreement with Fleet Capital Corporation and a $7 million subordinated debt
agreement with American. At the time we entered into the subordinated debt
agreement with American, we issued warrants to American entitling American
to purchase for $.01 per share up to 1,907,543 shares of our common stock.
This prospectus relates to the resale of those shares by American.
The number of shares for which American's warrants can be exercised is
subject to increase in event of stock dividends, stock splits and stock
reclassifications. The number of shares issuable to American is also
subject to increase if we sell any of our common stock below the current
market value at the time of sale (except shares issued under employee
benefits plans in effect on or before October 29, 1999).
In a filing with the Securities and Exchange Commission on February
11, 2000, American reported its beneficial ownership of the 1,907,543 shares
of our common stock issuable upon exercise of American's warrants. American
reported that it has sole voting and dispositive power over all 1,907,543
shares. With the exception of its role as lender under our Subordinated
Debt Agreement, American has no position, office or other material
relationship with IGI, Inc. or any of its affiliates and has not had any
such position, office or other material relationship within the last three
years. Under the subordinated debt agreement, American has a right to
designate at least one member of our Board of Directors, but, to date has
not exercised that right.
Use of Proceeds
We will receive $.01 per share upon American's exercise of its
warrants, or a maximum of $19,075. We will use this money for general
corporate purposes. We will not receive any of the proceeds from American's
resale of the shares offered by this prospectus. We have agreed to pay all
costs of the registration of these shares. We estimate that these costs,
fees and expenses will total approximately $24,629.
Plan of Distribution
American and its pledgees, donees, transferees or other successors in
interest selling shares received from the exercise of American's warrants
may sell the shares offered by this prospectus from time to time. The
selling shareholders will act independently of us in making decisions with
respect to the timing, manner and size of each sale. The sales may be made
on one or more exchanges or in the over the counter market or otherwise, at
prices and at terms then prevailing or at prices related to the then current
market price, or in negotiated transactions. The selling shareholders may
effect such transactions by selling the shares to or through broker dealers.
Our common stock may be sold by one or more of, or a combination of, the
following:
* a block trade in which the broker dealer so engaged will attempt
to sell our common stock 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 such
broker dealer for its account pursuant to this prospectus,
* an exchange distribution in accordance with the rules of such
exchange,
* ordinary brokerage transactions and transactions in which the
broker solicits purchasers, and
* in privately negotiated transactions.
To the extent required, this prospectus may be amended or supplemented
from time to time to describe a specific plan of distribution. In effecting
sales, broker dealers engaged by the selling shareholders may arrange for
other broker dealers to participate in the resales.
The selling shareholders may enter into hedging transactions with
broker dealers in connection with distributions of our common stock or
otherwise. In such transactions, broker dealers may engage in short sales
of the shares in the course of hedging the positions they assume with
selling shareholders. The selling shareholders also may sell shares short
and redeliver our common stock to close out such short positions. The
selling shareholders may enter into option or other transactions with broker
dealers which require the delivery to the broker dealer of our common stock.
The broker dealer may then resell or otherwise transfer such shares
pursuant to this prospectus. The selling shareholders also may loan or
pledge the shares to a broker dealer. The broker dealer may sell our common
stock so loaned, or upon a default the broker dealer may sell the pledged
shares pursuant to this prospectus.
Broker dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling shareholders. Broker
dealers or agents may also receive compensation from the purchasers of our
common stock for whom they act as agents or to whom they sell as principals,
or both. Compensation as to a particular broker dealer might be in excess
of customary commissions and will be in amounts to be negotiated in
connection with our common stock. Broker dealers or agents and any other
participating broker dealers or the selling shareholders may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act of
1933 in connection with sales of the shares. Accordingly, any such
commission, discount or concession received by them and any profit on the
resale of our common stock purchased by them may be deemed to be
underwriting discounts or commissions under the Securities Act of 1933.
Because selling shareholders may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933, the selling
shareholders will be subject to the prospectus delivery requirements of the
Securities Act of 1933. In addition, any securities covered by this
prospectus which qualify for sale pursuant to Rule 144 promulgated under the
Securities Act of 1933 may be sold under Rule 144 rather than pursuant to
this prospectus. The selling shareholders have advised us that they have not
entered into any agreements, understandings or arrangements with any
underwriters or broker dealers regarding the sale of their securities. To
our knowledge, there is no underwriter or coordinating broker acting in
connection with the proposed sale of shares by selling shareholders.
Our common stock will be sold only through registered or licensed
brokers or dealers if required under applicable state securities laws. In
addition, in certain states our common stock may not be sold unless it has
been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is available
and is complied with.
Under applicable rules and regulations under the Exchange Act of 1934,
any person engaged in the distribution of our common stock may not
simultaneously engage in market making activities with respect to our common
stock for a period of two business days prior to the commencement of such
distribution. In addition, each selling shareholder will be subject to
applicable provisions of the Exchange Act of 1934 and the associated rules
and regulations under the Exchange Act of 1934, including Regulation M,
which provisions may limit the timing of purchases and sales of shares of
our common stock by the selling shareholders. We will make copies of this
prospectus available to the selling shareholders and have informed them of
the need for delivery of copies of this prospectus to purchasers at or prior
to the time of any sale of our common stock.
We will file a supplement to this prospectus, if required, pursuant to
Rule 424(b) under the Securities Act of 1933 upon being notified by a
selling shareholder that any material arrangement has been entered into with
a broker dealer for the sale of shares through a block trade, special
offering, exchange distribution or secondary distribution or a purchase by a
broker or dealer. Such supplement will disclose:
* the name of each such selling shareholder and of the
participating broker dealer(s),
* the number of shares involved,
* the price at which such shares were sold,
* the commissions paid or discounts or concessions allowed to such
broker dealer(s), where applicable,
* that such broker dealer(s) did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus, and
* other facts material to the transaction.
We will bear all costs, expenses and fees in connection with the
registration of our common stock. The selling shareholders will bear all
commissions and discounts, if any, attributable to the sales of the shares.
The selling shareholders may agree to indemnify any broker dealer or agent
that participates in transactions involving sales of the shares against
certain liabilities, including liabilities arising under the Securities Act.
EXPERTS
The consolidated financial statements incorporated in this prospectus
by reference to our Annual Report on Form 10-K for the year ended December
31, 1999, as amended by Form 10-K/A filed September 1, 2000, have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given upon the authority of that firm as experts in
accounting and auditing. The report contains an explanatory paragraph
relating to our ability to continue as a going concern as described in Note
8 to the financial statements.
LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus
will be passed upon for us by Devine, Millimet & Branch, Professional
Association, Manchester, New Hampshire.
PART II
Item 14 Other Expenses of Issuance and Distribution
The following is an itemized statement of expenses to be incurred in
connection with this Registration Statement. All of the expenses will be
paid by IGI, Inc. (the "Company").
Securities and Exchange Commission registration fee $ 629.49
Blue Sky fees and expenses 0.00
Public accountants' fees 12,000.00
Company legal fees and expenses 12,000.00
Miscellaneous expenses 0.00
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TOTAL: $24,629.49
All of the above items, except the registration fee, are estimates.
Item 15 Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with
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 is applicable in the case of derivative actions, except
that indemnification only extends to expenses (including attorney's fees)
actually and reasonably incurred in connection with the defense or
settlement of such action, and the statute requires court approval before
there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is
not exclusive of other indemnification that may be granted by a
corporation's by-laws, disinterested director vote, stockholder vote,
agreement or otherwise.
Under the terms of the Company's Bylaws and subject to the applicable
provisions of Delaware law, the Company has indemnified each of its
directors and officers and, subject to the discretion of the Board of
Directors, any other person, against expenses incurred or paid in connection
with any claim made against such director or officer or any actual or
threatened action, suit or proceeding in which such director or officer may
be involved by reason of being or having been a director or officer of the
Company or of serving or having served at the Company's request as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any action taken
or not taken by such director or officer in such capacity, and against the
amount or amounts paid by such director or officer in settlement of any such
claim, action, suit or proceeding or any judgment or order entered therein.
Section 102(b)(7) if the DGCL permits a provision in the certificate
of incorporation of each corporation organized thereunder, such as the
Company, eliminating or limiting, with certain exceptions, the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director. The Company's
Certificate of Incorporation, as amended, eliminates the liability of
directors to the extent permitted by the DGCL.
The Company carries directors' and officers' liability insurance that
covers certain liabilities and expenses of Company directors and officers.
The Company has entered into employment agreements with certain officers and
directors to effectuate these indemnity provisions.
Item 16 Exhibits
5.1 Opinion and Consent of Devine, Millimet & Branch, P.A.
23.1 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney
Item 17 Undertakings
A. Undertaking Pursuant to Rule 415.
The Company 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 (the "Securities Act");
(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
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 for 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 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 paragraphs A(1)(i) and A(1)(ii) do not apply
if the Registration Statement is on Form S-3 and the information
required to be included in post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15 (d) of the Securities Exchange
Act of 1934 (the "Exchange Act") 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.
B. Undertaking Regarding Filings Incorporating Subsequent Exchange
Act Documents by Reference.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed the initial bona fide offering thereof.
C. Undertaking in Respect of Indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the 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
Company will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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
Amendment No. 2 to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Buena, State of
New Jersey, on November 16, 2000.
IGI, INC.
By: /s/ John Ambrose
-------------------------------
JOHN AMBROSE
President
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.
Signature Title Date
--------- ----- ----
/s/ Edward B. Hager Chairman of the Board November 16, 2000
--------------------------
EDWARD B. HAGER
/s/ Robert E. McDaniel Chief Executive Officer November 16, 2000
-------------------------- (Principal executive officer)
ROBERT E. MCDANIEL
/s/ John Ambrose President November 16, 2000
--------------------------
JOHN AMBROSE
/s/ Domenic N. Golato Senior Vice President and November 16, 2000
-------------------------- Chief Financial Officer
DOMENIC N. GOLATO (Principal financial officer
and principal accounting
officer)
/s/ Stephen J. Morris Director November 16, 2000
--------------------------
STEPHEN J. MORRIS
/s/ Terrence D. Daniels Director November 16, 2000
--------------------------
TERRENCE D. DANIELS
/s/ Jane E. Hager Director November 16, 2000
--------------------------
JANE E. HAGER
/s/ Constantine L. Hampers Director November 16, 2000
--------------------------
CONSTANTINE L. HAMPERS
/s/ Terrence O'Donnell Director November 16, 2000
--------------------------
TERRENCE O'DONNELL
/s/ Donald W. Joseph Director November 16, 2000
--------------------------
DONALD W. JOSEPH
The undersigned, by signing his name hereto, does hereby sign this
registration statement or amendment thereto on behalf of each of the above-
indicated directors or officers of IGI, Inc. pursuant to powers of attorney
executed by each such director or officer.
/s/ Robert E. McDaniel
------------------------------------
Robert E. McDaniel, Attorney-in-Fact
EXHIBIT INDEX
The following Exhibits are filed as part of this Registration
Statement on Form S-3 or are incorporated herein by reference.
Exhibit No. Description Page
----------- ----------- ----
5.1* Opinion and Consent of Devine, Millimet & Branch, P. A.
23.1 Consent of PricewaterhouseCoopers LLP
24.1* Power of Attorney
* Previously filed.
