As filed with the Securities and Exchange Commission on September 3, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
IVC INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
Delaware 22-1567481
(State of incorporation) (I.R.S. Employer Identification Number)
500 Halls Mill Road
Freehold, New Jersey 07728
(Address of principal executive
officer)
-------------------
IVC Industries, Inc.
1993 Stock Option Plan,
IVC Industries, Inc.
1995 Stock Option Plan, and
IVC Industries, Inc.
Non-Employee Directors' Stock
Option Plan
(Full title of the plans)
-------------------
I. Alan Hirschfeld Copy to:
Executive Vice President Edward H. Cohen, Esq.
IVC Industries, Inc. Rosenman & Colin LLP
500 Halls Mill Road 575 Madison Avenue
Freehold, New Jersey 07728 New York, New York 10022
(732) 308-3000 (212) 940-8580
(Name, address and telephone
number of agent for service)
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to be offering price aggregate offering registration
be registered registered per share* price* fee
=================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
par value $.01
per share...... 3,000,000** $1.4375 $4,312,500 $1,273
=================================================================================================
</TABLE>
* Estimated solely for the purpose of calculating the registration fee;
computed, pursuant to Rule 457(c), upon the basis of the average of the high and
low prices of the Common Stock as quoted on the Nasdaq SmallCap Market on
September 1, 1998.
** 500,000 shares under the IVC Industries, Inc. 1993 Stock Option Plan,
2,000,000 shares under the IVC Industries, Inc. 1995 Stock Option Plan and
500,000 shares under the IVC Industries, Inc. Non-Employee Directors Stock
Option Plan.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
IVC Industries, Inc. (the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). The following documents, or portions
thereof, filed by the Company with the Commission pursuant to the Exchange Act
are incorporated by reference in this Registration Statement:
a. The Company's Annual Report on Form 10-K for the fiscal year
ended July 31, 1997, filed with the Commission on October 30,
1997 and the amendments thereto filed with the Commission on
October 31, 1997 and November 10, 1998.
b. The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended October 31, 1997, filed with the Commission on
December 12, 1997, January 31, 1998, filed with the Commission
on March 17, 1998, and April 30, 1998, filed with the
Commission on June 15, 1998.
c. The information in respect of the Company's capital stock
under the caption "Description of Capital Stock" contained in
the Company's Registration Statement on Form SB-2
(Registration No. 33-73406) filed with the Commission on
December 23, 1993.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment hereto indicating that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
of this Registration Statement from the respective dates of filings of such
documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The By-Laws of the Company provide that the Company shall indemnify
its officers, directors, employees and agents to the full extent permitted by
the Delaware General Corporation Law (the "GCL"), the law of the State in which
the Company is incorporated. Section 145 of the GCL empowers a corporation,
within certain limitations, to indemnify any person against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any suit or proceeding to which he
is a party 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,
partnership, joint venture, trust or other enterprise, as long as he acted in
good faith and in a manner which he reasonably believed to be in, or not opposed
to, the best interests of the corporation. With respect to any criminal
proceeding, he must have had no reasonable cause to believe his conduct was
unlawful. In addition, the Certificate of Incorporation of the Company provides
that the Company shall indemnify any and all persons whom it shall have the
power to indemnify under Section 145 of the GCL. The Company also has in effect
directors' and officers' liability insurance.
<PAGE>
ITEM 8. EXHIBITS
Exhibit No. Description
4(a) IVC Industries, Inc. Non-Employee Directors' Stock Option Plan
(1)
4(b) IVC Industries, Inc. 1995 Stock Option Plan (2)
4(c) IVC Industries, Inc. 1993 Stock Option Plan (3)
4(d) Restated Certificate of Incorporation of the Company (4)
4(e) Amendment to Certificate of Incorporation filed March 19, 1996
(4)
4(f) Amendment to Certificate of Incorporation filed April 17, 1995
(4)
4(g) Amended and Restated By-Laws of the Company (4)
4(h) Specimen of common stock certificate of the Company (3)
4(i) Warrant Specimen (3)
4(j) Warrant Agreement (3)
4(k) Registration Rights Agreement (5)
4(l) Registration Rights Agreement, dated April 30, 1996, among IVC
Industries, Inc., Andrew M. Pinkowski, Rita Pinkowski, Vicki
Welsh Jones, The Amelia Welsh Jones Trust, under a Trust
Agreement dated June 4, 1993, Lawrence A. Newman,
Duane Baxter, Peter W. Schreiber, John H. Dettra, Jr. And
Larry Corbridge (4)
*5 Opinion of Rosenman & Colin LLP
*23(a) Consent of Amper Politziner & Mattia
*23(b) Consent of Rosenman & Colin LLP (included in Exhibit 5).
(1) Incorporated herein by reference from the Company's Proxy
Statement for Annual Meeting of Shareholders, dated March 24,
1998
(2) Incorporated herein by reference from the Company's Proxy
Statement for Annual Meeting of Shareholders, dated March 5,
1996.
(3) Incorporated herein by reference from the Registration
Statement on Form SB-2 (Registration No. 33-73406) filed by
the Company on December 23, 1993.
(4) Incorporated herein by reference from the Form 8-K filed by
the Company on May 14, 1996.
(5) Incorporated herein by reference from the Form 10-QSB filed by
the Company for the quarterly period ended April 30, 1995.
*filed herewith
II-2
<PAGE>
ITEM 9. UNDERTAKINGS
1. The undersigned Company hereby undertakes: (a) 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 of the securities being registered hereby not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; (b) 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; and
(c) 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.
2. The undersigned Company hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act 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 Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Freehold, State of New Jersey, on this 2nd day of
September, 1998.
IVC INDUSTRIES, INC.
By E. Joseph Edell
-------------------------
E. Joseph Edell
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
E. Joseph Edell Chairman of the Board of September 2, 1998
- ----------------------- Directors and Chief
E. Joseph Edell Executive Officer
Andrew M. Pinkowski Vice Chairman and Director August 3, 1998
- -----------------------
Andrew M. Pinkowski
I. Alan Hirschfeld Executive Vice President, September 2, 1998
- ----------------------- Chief Financial
I. Alan Hirschfeld Officer and Director
Director
- -----------------------
MacAllen Culver III
Director
- -----------------------
Arthur S. Edell
Dennis E. Groat Director July 31, 1998
- -----------------------
Dennis E. Groat
Director
- -----------------------
David Popofsky
<PAGE>
Director
- -----------------------
Dr. Mark S. Gold
Marc Z. Edell Director August 20, 1998
- -----------------------
Marc Z. Edell
<PAGE>
EXHIBIT INDEX
ITEM 8. EXHIBITS
Exhibit No. Description
4(a) IVC Industries, Inc. Non-Employee Directors' Stock Option Plan
(1)
4(b) IVC Industries, Inc. 1995 Stock Option Plan (2)
4(c) IVC Industries, Inc. 1993 Stock Option Plan (3)
4(d) Restated Certificate of Incorporation of the Company (4)
4(e) Amendment to Certificate of Incorporation filed March 19, 1996
(4)
4(f) Amendment to Certificate of Incorporation filed April 17, 1995
(4)
4(g) Amended and Restated By-Laws of the Company (4)
4(h) Specimen of common stock certificate of the Company (3)
4(i) Warrant Specimen (3)
4(j) Warrant Agreement (3)
4(k) Registration Rights Agreement (5)
4(l) Registration Rights Agreement, dated April 30, 1996, among IVC
Industries, Inc., Andrew M. Pinkowski, Rita Pinkowski, Vicki
Welsh Jones, The Amelia Welsh Jones Trust, under a Trust
Agreement dated June 4, 1993, Lawrence A. Newman,
Duane Baxter, Peter W. Schreiber, John H. Dettra, Jr. And
Larry Corbridge (4)
*5 Opinion of Rosenman & Colin LLP
*23(a) Consent of Amper Politziner & Mattia
*23(b) Consent of Rosenman & Colin LLP (included in Exhibit 5).
(1) Incorporated herein by reference from the Company's Proxy
Statement for Annual Meeting of Shareholders, dated March 24,
1998
(2) Incorporated herein by reference from the Company's Proxy
Statement for Annual Meeting of Shareholders, dated March 5,
1996.
(3) Incorporated herein by reference from the Registration
Statement on Form SB-2 (Registration No. 33-73406) filed by
the Company on December 23, 1993.
(4) Incorporated herein by reference from the Form 8-K filed by
the Company on May 14, 1996.
(5) Incorporated herein by reference from the Form 10-QSB filed by
the Company for the quarterly period ended April 30, 1995.
*filed herewith
Rosenman & Colin LLP
575 Madison Avenue
New York, New York 10022
September 2, 1998
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 to be filed by IVC
Industries, Inc., a Delaware corporation, with the Securities and Exchange
Commission with respect to the registration of 3,000,000 shares of the Company's
common stock, par value $0.01 per share, for issuance under the IVC Industries,
Inc. 1993 Stock Option Plan, IVC Industries, Inc. 1995 Stock Option Plan and IVC
Industries, Inc. Non-Employee Directors' Stock Option Plan (collectively, the
"Plans").
We have made such examination as we have deemed necessary for the purpose of
this opinion. Based upon such examination, it is our opinion that said 3,000,000
shares have been duly authorized and, upon issuance in accordance with the terms
of stock option agreements or certificates issued under the Plans, will be
validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as Exhibit 5 to the Registration
Statement. We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
ROSENMAN & COLIN LLP
By: Edward H. Cohen
-------------------
A Partner
EHC
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Form S-8 registration statement of our report dated October
29, 1997 included in the IVC Industries, Inc. Form 10-K for the year ended July
31, 1997 and to all references to our firm included in this Form S-8
registration statement.
AMPER, POLITZINER & MATTIA P.A.
Edison, New Jersey
September 2, 1998
