As filed with the Securities and Exchange Commission on April 7, 2000
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RELIV' INTERNATIONAL, INC.
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(exact name of issuer as specified in its charter)
Illinois 37-1172197
- -------------------------------------------- -----------------------
(State of Incorporation) (IRS Employer I.D. No.)
136 Chesterfield Industrial Boulevard
Chesterfield, Missouri 63005
(636) 537-9715 63005
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(Address and telephone number of Principal (Zip Code)
Executive Offices)
RELIV INTERNATIONAL, INC.
1999 STOCK OPTION PLAN
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(Full title of the plan)
With copy to:
Robert L. Montgomery John M. Klimek
Chief Executive Officer Merrick & Klimek, P.C.
Reliv' International, Inc. 401 South LaSalle, Suite 1302
136 Chesterfield Industrial Boulevard Chicago, Illinois 60605
Chesterfield, Missouri 63005
(636) 537-9715
(name, address and telephone number of
agent for service of process)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================== ====================== ====================== ====================== ======================
Proposed Proposed
Maximum Maximum
Title of Securities Amount to be Offering Price Per Aggregate Amount of Registration
to be Registered Registered(1) Share(2) Offering Price (3) Fee
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Common Stock; Without
<S> <C> <C> <C> <C> <C>
Par Value 1,000,000 shares $1.125 - $1.5625 $1,181,625 $328.50
======================== ====================== ====================== ====================== ======================
<FN>
(1)Represents the maximum number of shares of Common Stock to be issued by the
Company upon the exercise of options granted under the Reliv' International,
Inc. 1999 Stock Option Plan. In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the Reliv' International,
Inc. 1999 Stock Option Plan described herein.
(2)Represents the range of prices at which options issued under the Reliv
International, Inc. 1999 Stock Option Plan may be exercised to acquire shares of
the Company's Common Stock, $1.125 being the minimum exercise price for options
currently issued under the 1999 Stock Option Plan and $1.2375 being the maximum
exercise price for options currently issued under the 1999 Stock Option Plan.
Additional shares to be issued upon exercise of options not yet granted under
the 1999 Stock Option Plan will be issued at prices currently undeterminable.
Solely for the purpose of determining the registration fee pursuant to Rule
457(h), the price of these shares is based on the closing price of the Common
Stock on the Nasdaq National Market on March 31, 2000 of $1.5625.
(3)Represents the maximum aggregate offering price for shares of Common Stock
subject to issuance under the 1999 Stock Option Plan, calculated as follows:
722,000 options to purchase 1 share of Common Stock at an exercise price of
$1.125 per share and 200,000 options to purchase 1 share of Common Stock at an
exercise price of $1.2375. An additional 78,000 options remain unissued under
the 1999 Stock Option Plan, and for purposes of determining a registration fee,
the closing price of $1.5625 on March 31, 2000 was assigned to these shares.
</FN>
</TABLE>
<PAGE>
PART I
Pursuant to Part I of Form S-8, information required under Items 1 and 2 of Form
S-8 is omitted as part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
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The following documents which have been filed with the Securities and
Exchange Commission are hereby incorporated by reference in this Registration
Statement:
1. The Annual Report on Form 10-K for the fiscal year ended December
31, 1999.
2. The Definitive Proxy Statement dated April 23, 1999, for the
Annual Meeting of Shareholders held on May 27, 1999.
3. The description of the Company's capital stock as set forth in
the Registration Statement on Form 8-A (File No. 1-11768) filed
by the registrant with the Securities and Exchange Commission on
February 25, 1993, including any amendment or report filed for
the purpose of updating such description.
In addition, all documents which are filed by the registrant pursuant
to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
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The validity of the shares of Common Stock offered hereby will be
passed upon for the registrant by Merrick & Klimek, P.C., 401 South LaSalle,
Suite 1302, Chicago, Illinois 60605. Stephen M. Merrick, one of the principals
in such firm, is the Secretary and a Director of the registrant, and owns
475,090 shares of the registrant's Common Stock as of the date of filing this
Registration Statement.
Item 6. Indemnification of Directors and Officers.
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3
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Section 8.75 of the Illinois Business Corporation Act confers broad
powers upon corporations incorporated in that State with respect to
indemnification of any person against liabilities incurred by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other business entity. The
provisions of Section 8.75 are not exclusive of any other rights to which those
seeking indemnification may be entitled under bylaw, agreement or otherwise.
Article XII of the registrant's By-Laws provides that the registrant
shall have the power to indemnify any person who was or is 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
(other than an action by or in the right of the registrant) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
registrant, or who is or was serving at the request of the registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if 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, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Article XII also provides that the registrant shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the registrant, or is
or was serving at the request of the registrant as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit 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, provided that no indemnification shall be made in respect of any
claim, issue or matter as to which such persons shall have been adjudged to be
liable for negligence or misconduct in the performance of his or her duty to the
registrant, unless, and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnify for such expenses as the
court shall deem proper.
To the extent that a director, officer, employee, or agent of the
registrant has been successful, on the merits or otherwise, in defense of any
action, suit or proceeding referred to above, or in defense of any claim, issue
or matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith.
Any indemnification under Article XII (unless ordered by court) shall
be made by the registrant only as authorized in the specific case, upon
determination that indemnification of a director, officer, employee or agent is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth above. Such determination shall be made:
(a) by the board of directors by a majority of a quorum consisting of
directors who were not parties to such action, suit or
proceeding, or
(b) if such a quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or
(c) by the shareholders.
4
<PAGE>
Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the registrant in advance of the final disposition of
such action, suit or proceeding, as authorized by the board of directors in the
specific case, upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount, unless it shall ultimately be
determined that he or she is entitled to be indemnified by the registrant as
authorized in Article XII.
The indemnification provided by Article XII is not exclusive of any
other rights to which those indemnified may be entitled under any contract,
agreement, vote of shareholders or disinterested directors, or otherwise, both
as to action in his or her official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Article XII provides that the registrant shall have power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the registrant, or is or was serving at the
request of the registrant, as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of his status as such, whether or not the registrant
would have the power to indemnify him or her against such liability under the
provisions of this Article. The registrant has not obtained such insurance to
date.
If a registrant has paid indemnity or has advanced expenses to a
director, officer, employee or agent, the registrant shall report the
indemnification or advance in writing to the shareholders with or before the
notice of the next shareholders meeting.
Section 2.10(b)(3) of the Illinois Business Corporation Act enables a
corporation to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision does not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 8.65 of the Illinois Business Act (regarding unlawful
dividends, stock purchases or stock redemptions) or (iv) for any other
transaction for which a director derived an improper personal benefit. The
Articles of Incorporation of the Company contain such a provision.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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Exhibit No. Exhibit
4 Reliv' International, Inc. 1999 Stock Option Plan (Incorporated
by reference to Appendix E of the Form 14A the Registrant filed
April 22, 1999).
5 Opinion of Merrick & Klimek, P.C.
23.1 Consent of Ernst & Young LLP, independent auditors of Reliv'
International, Inc.
5
<PAGE>
23.2 The consent of Merrick & Klimek, P.C. is contained in their
opinion filed as Exhibit 5 hereto.
24 Power of attorney (included on signature page).
Item 9. Undertakings.
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
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;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
6
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Chesterfield, State of Missouri, on April 7,
2000.
RELIV' INTERNATIONAL, INC.
By: /s/ Robert L. Montgomery
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Robert L. Montgomery, President, Chief
Executive Officer and Chairman
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the
Committee which administers the Reliv' International, Inc. 1999 Stock Option
Plan has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Chesterfielld, State
of Missouri on April 7, 2000.
PLAN:
RELIV' INTERNATIONAL, INC.
1999 STOCK OPTION PLAN
By: /s/ Stephen M. Merrick
------------------------------------
Stephen M. Merrick, Member of the
Compensation Committee
POWER OF ATTORNEY
The undersigned officers and directors of Reliv' International, Inc.
hereby constitute and appoint Robert L. Montgomery and Stephen M. Merrick, or
either of them, with power to act one without the other, our true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for us and in our stead, in any and all capacities to sign any and all
amendments (including 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 Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing necessary or
advisable to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his or her substitutes,
may lawfully do or cause to be done by virtue hereof.
7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- ------------------------- ----------------------------- -------------
/s/ Robert L. Montgomery President, Chief Executive April 7, 2000
- ------------------------- Officer and Chairman of the
Robert L. Montgomery Board of Directors
/s/ Carl W. Hastings Executive Vice President and April 7, 2000
- ------------------------- Director
Carl W. Hastings
/s/ David G. Kreher Senior Vice President, April 7, 2000
- ------------------------- Worldwide Sales and Marketing
David G. Kreher
/s/ Stephen M. Merrick Secretary and Director April 7, 2000
- -------------------------
/s/ Donald L. McCain Director April 7, 2000
- -------------------------
Donald L. McCain
/s/ Thomas W. Pinnock Director April 7, 2000
- -------------------------
Thomas W. Pinnock
/s/ John B. Akin Director April 7, 2000
- -------------------------
John B. Akin
/s/ Thomas T. Moody Director April 7, 2000
- -------------------------
Thomas T. Moody
/s/ Sandra S. Montgomery Director April 7, 2000
- -------------------------
Sandra S. Montgomery
/s/ Marvin W. Solomonson Director April 7, 2000
- -------------------------
Marvin W. Solomonson
8
EXHIBIT 5
April 6, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8 Relating to the
Reliv' International, Inc. 1999 Stock Option Plan (the "Plan")
Ladies and Gentlemen:
As legal counsel for Reliv' International, Inc., an Illinois
corporation (the "Company"), we are rendering this opinion in connection with
the preparation and filing of a registration statement on Form S-8 (the
"Registration Statement") relating to the registration under the Securities Act
of 1933, as amended, of 1,000,000 shares of Common Stock, no par value (the
"Common Stock") subject to issuance upon exercise of options granted under the
Reliv' International, Inc. 1999 Stock Option Plan.
We have examined such instruments, documents and records as we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies.
Based on such examination, we are of the opinion that the shares of
Common Stock of the Company being registered pursuant to the Registration
Statement are duly authorized shares of Common Stock which, when sold, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
This opinion is to be used only in connection with the Plan and the
issuance of the Common Stock while the Registration Statement is in effect.
Respectfully submitted,
/s/ Merrick & Klimek, P.C.
MERRICK & KLIMEK, P.C.
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference into the Registration Statement
(Form S-8, No. 333-XXXXX) pertaining to the Reliv' International, Inc. 1999
Stock Option Plan of our report dated March 7, 2000, except for Note 6, as to
which the date is March 20, 2000 with respect to the consolidated financial
statements and financial statement schedule of Reliv' International, Inc.
included in the Annual Report (Form 10-K) for the year ended December 31, 1999,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
St. Louis, Missouri
April 3, 2000
