As filed with the Securities and Exchange Commission on January 11, 2000
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 registrant as specified in its charter)
22-1567481
Delaware (I.R.S. Employer
(State of incorporation) Identification Number)
500 Halls Mill Road
Freehold, New Jersey 07728
(Address of principal executive offices)
-------------------
IVC Industries, Inc.
1995 Stock Option Plan, and
IVC Industries, Inc.
Non-Employee Directors' Stock Option Plan
(Full title of the plans)
-------------------
Domenic Golato Copy to:
Vice President and Chief Edward H. Cohen, Esq.
Financial Officer Rosenman & Colin LLP
IVC Industries, Inc. 575 Madison Avenue
500 Halls Mill Road New York, New York 10022
Freehold, New Jersey 07728 (212) 940-8580
(732) 308-3000
(Name, address and telephone
number of agent for service)
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================
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 $.08
per share .... 312,500** $4.8125 $1,503,906 $400.00
====================================================================================
</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 January 4,
2000.
** 250,000 shares under the IVC Industries, Inc. 1995 Stock Option Plan and
62,500 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, 1999, filed with the Commission on October 29,
1999;
b. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended October 31, 1999, filed with the Commission on
December 15, 1999;
c. The Company's Current Reports on Form 8-K filed with the
Commission on September 24, 1999 and October 1, 1999; and
d. 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 and the information in respect of the split
of the Company's common stock contained in the Company's
Current Report on Form 8-K filed with the Commission on July
14, 1999.
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
*4(b) IVC Industries, Inc. 1995 Stock Option Plan
*4(c) Restated Certificate of Incorporation of the Company
4(d) Amended and Restated By-Laws of the Company (1)
4(e) Specimen of common stock certificate of the Company (2)
*5 Opinion of Rosenman & Colin LLP
*23(a) Consent of Amper Politziner & Mattia P.A.
*23(b) Consent of Rosenman & Colin LLP (included in Exhibit 5).
- ----------
(1) Incorporated herein by reference to the Current Report on Form
8-K filed with the Commission on May 14, 1996.
(2) Incorporated herein by reference to the Form 10-K filed with
the Commission on October 29, 1999.
*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 7th day of
January, 2000.
IVC INDUSTRIES, INC.
By /s/ E. Joseph Edell
------------------------------------
E. Joseph Edell
Chairman of the Board, President 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
--------- ----- ----
/s/ E. Joseph Edell Chairman of the Board, President, January 7, 2000
- ------------------------ and Chief Executive Officer
E. Joseph Edell
/s/ Domenic Golato Vice President and Chief January 7, 2000
- ------------------------ Financial Officer
Domenic Golato
Director
- ------------------------
Arthur S. Edell
/s/ Marc Z. Edell Director January 7, 2000
- ------------------------
Marc Z. Edell
/s/ Dr. Mark S. Gold Director January 7, 2000
- ------------------------
Dr. Mark S. Gold
/s/ Dennis E. Groat Director January 7, 2000
- ------------------------
Dennis E. Groat
/s/ Andrew M. Pinkowski Director January 7, 2000
- ------------------------
Andrew M. Pinkowski
Director
- ------------------------
David Popofsky
/s/ Erwin Lehr Director January 7, 2000
- ------------------------
Erwin Lehr
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
*4(a) IVC Industries, Inc. Non-Employee Directors' Stock Option Plan
*4(b) IVC Industries, Inc. 1995 Stock Option Plan
*4(c) Restated Certificate of Incorporation of the Company
4(d) Amended and Restated By-Laws of the Company (1)
4(e) Specimen of common stock certificate of the Company (2)
*5 Opinion of Rosenman & Colin LLP
*23(a) Consent of Amper Politziner & Mattia P.A.
*23(b) Consent of Rosenman & Colin LLP (included in Exhibit 5).
- ----------
(1) Incorporated herein by reference to the Current Report on Form
8-K filed with the Commission on May 14, 1996.
(2) Incorporated herein by reference to the Form 10-K filed with
the Commission on October 29, 1999.
*filed herewith
Exhibit 4(a)
IVC INDUSTRIES, INC.
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
1. Purpose. The purpose of the IVC Industries, Inc. Non-Employee
Directors' Stock Option Plan (the "Plan") is to provide an incentive to the
non-employee directors (the "Non-Employee Directors") of IVC Industries, Inc., a
Delaware corporation (the "Company"), in order to encourage them to remain in
the service of the company as directors and contribute to the Company's success,
by granting them nonqualified stock options ("Options").
2. Administration. (a) The Plan shall be administered by the Board of
Directors.
(b) It shall be the duty of the Board to administer the Plan in accordance
with its terms and provisions. Subject to the express provisions of the Plan,
the Board shall have the power and authority to interpret the Plan, the Options
and the Option Agreements (as defined herein), to adopt such rules and
regulations for the administration, interpretation and application of the Plan
as are consistent therewith, and to interpret, amend or revoke any such rules
and regulations.
(c) The Board shall act by a majority of its members in attendance at a
meeting at which a quorum is present or by a memorandum or other written
instrument signed by all members of the Board.
(d) All expenses and liabilities incurred by members of the Board in
connection with the administration of the Plan shall be borne by the Company.
The Board may employ attorneys, consultants, accountants, appraisers, brokers or
other persons. The Board shall be entitled to rely upon the advice, opinions or
valuations of any such persons. All actions taken and all interpretations and
determinations made by the Board in good faith shall be final and binding upon
all persons, including the Non-Employee Directors to whom Options have been
granted (the "Optionees"). No member of the Board shall be personally liable for
any action, determination or interpretation with respect to the Plan or the
Options, made in good faith, and all members of the Board shall be fully
protected by the Company in respect of any such action, determination or
interpretation.
3. Stock Subject to the Plan. The stock to be made the subject of any
Option granted hereunder shall be shares of the common stock of the Company, par
value $.08 per share (the "Stock"), whether authorized and unissued or treasury
stock, and the total number of shares of Stock for which Options may be granted
under the Plan shall not exceed, in the aggregate, 125,000 shares, subject to
adjustment in accordance with the provisions of Section 11 hereof.
4. Grant of Options. (a) As of September 1 of each year, each Non-Employee
Director shall be granted an Option to purchase 3,125 shares of Stock; provided,
however, that, if a Non-Employee Director shall become a Non-Employee Director
subsequent to September 1 of such fiscal year, on the first day on which he
shall become a Non-Employee Director, he shall be granted an Option to purchase
the number of shares of Stock equal to the product of 3,125 and the fraction the
numerator of which shall be the number of full months remaining in such fiscal
year and the denominator of which shall be 12.
(b) The Board may grant additional Options, in such amounts and at such
times as the Board may determine, to Non-Employee Directors who perform services
for the Company.
(c) Each Option granted to a Non-Employee Director shall be evidenced by a
written agreement in such form and containing such provisions not inconsistent
with the Plan as the Board shall from time to time approve (the "Option
Agreement") and which, in the case of Options granted pursuant to Section 4(b)
hereof, need not be identical in respect of each Optionee.
5. Exercise Price. The exercise price (the "Exercise Price") of an Option
shall be the fair market value per share of Stock covered by the Option at the
time that the Option is granted. For purposes of this Section 5, the fair market
value per share of Stock as of a particular date shall mean, unless otherwise
determined by the Board, the
<PAGE>
closing price per share of Stock as reported on the National Association of
Securities Dealers Automated Quotation Small-Cap System, for the last preceding
date on which a sale was reported.
6. Option Period. Each Option shall expire on such date as shall be
determined by the Board, but not later than ten years from the date such Option
was granted.
7. Exercise of Options. (a) Each Option will be exercisable in accordance
with the terms of the Optionee's Option Agreement, as determined in the sole
discretion of the Board.
(b) Each Option, to the extent vested, may be exercised in whole or in
part at any time prior to its expiration or termination, by written notice of
such exercise to the Secretary of the Company, which notice shall specify the
number of shares of Stock as to which such Option is being exercised.
Notwithstanding the foregoing, no Option may be exercised prior to the date the
Plan is approved by the shareholders of the Company.
8. Payment for Stock. (a) The aggregate purchase price of Stock issued
upon the exercise of any Option shall be paid in full on the date of exercise.
Payment shall be made either in cash or in such other consideration as the Board
deems appropriate, including, but not limited to, Stock already owned by the
Optionee or Stock to be acquired by the Optionee upon exercise of Options having
a total fair market value, as determined by the Board, equal to the aggregate
purchase price, or a combination of cash and Stock having a total fair market
value, as so determined, equal to the aggregate purchase price.
(b) Upon the exercise of an Option, the Company shall have the right to
require the Optionee to pay the amount of any taxes which the Company may be
required to withhold with respect to such transaction, provided that the Board
may permit an Optionee to elect, pursuant to such rules as the Board may
establish, to have the Company reduce the number of shares that otherwise would
be issued upon such exercise by the fair market value, as determined by the
Board, of the number of shares necessary to accomplish such withholding; and
provided further that the Board may impose such restrictions and conditions on
the payment of any withholding obligation as may be required to satisfy
applicable regulatory requirements.
9. Termination of Employment. (a) In the event the Board does not nominate
an Optionee for re-election as a director, such Optionee will be entitled to
exercise such Optionee's Options for a period of 90 days following the date the
Optionee shall cease to serve as a director.
10. In the event (i) an Optionee voluntarily terminates his service as a
director of the Company or (ii) an Optionee shall die or become disabled (within
the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986) while the
Optionee is serving as a director of the Company, such Optionee will be entitled
to exercise such Optionee's Options until such Options otherwise expire in
accordance with the terms of the Option Agreement.
(a) In the event that an Optionee's service as a director with the Company
is terminated by the Company for cause under Delaware law, such Optionee's right
to exercise his Options shall thereupon terminate and all of such Optionee's
Options, whether or not vested, shall be rendered null and void and shall become
unexercisable.
11. Nontransferability. No Option shall be transferable other than by will
or the laws of descent and distribution; provided, however, that the Board, in
its sole discretion, may provide in the Option Agreement that the Optionee may
transfer, without consideration, all or a portion of his Option to his children,
grandchildren or spouse, to trusts for his or their benefit and to partnerships
in which he or they are the only parties. No permitted transfer so effected
shall be effective to bind the Company unless the Company has been furnished
with written notice thereof and such evidence as the Board may deem reasonably
necessary to establish the validity of the transfer and the acceptance by the
transferee or transferees of the terms and conditions of the Plan.
12. Stock Adjustments. (a) If the outstanding shares of Stock are
increased, decreased or changed into, or exchanged for, a different number or
kind of shares or securities of the Company through a reorganization or merger
in which the Company is the surviving entity, or through a combination,
recapitalization, reclassification, stock split, stock dividend, stock
consolidation or otherwise, an appropriate adjustment shall be made in the
number and kind of shares that may be issued pursuant to Options. Any such
adjustment, however, shall be made without
2
<PAGE>
change in the total payment, if any, applicable to the portion of an Option not
exercised but with a corresponding adjustment in the price for each share.
(b) Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
the Plan shall terminate, and any outstanding Options shall terminate and be
forfeited. Notwithstanding the foregoing, the Board may provide in connection
with, or in contemplation of, any such transaction for any or all of the
following alternatives (separately or in combinations): (i) for the assumption
by the successor corporation of the Options theretofore granted or the
substitution by such corporation for such Options of awards covering the stock
of the successor corporation, or a parent or subsidiary thereof, with
appropriate adjustments as to the number and kind of shares and prices; (ii) for
the continuance of the Plan by the successor corporation in which event the Plan
and the Options theretofore granted shall continue in the manner and under the
terms so provided; or (iii) for the payment in cash or shares of Stock in lieu
of and in complete satisfaction of such Options.
(c) In adjusting Options to reflect the changes described in this Section
11, or in determining that no such adjustment is necessary, the Board may rely
upon the advice of independent counsel and accountants of the Company, and the
determination of the Board shall be conclusive. No fractional shares of Stock
shall be issued under the Plan on account of any such adjustment.
13. No Rights as a Shareholder. An Optionee or a permitted transferee of a
Option shall have no rights as a shareholder with respect to any Stock covered
by his or its Option until such Optionee or a permitted transferee shall have
become the holder of record of such Stock.
14. Amendment and Termination. (a) The Board may at any time terminate or
suspend the Plan (or any part hereof) and the Board may amend or modify the Plan
(or any part hereof); provided, however, if an amendment would (i) materially
increase the benefits accruing to Optionees, (ii) increase the aggregate number
of shares of Stock which may be issued under the Plan or to any individual or
(iii) modify the requirements of eligibility for participation in the Plan, the
amendment shall be approved by the Company's shareholders.
(b) Notwithstanding the foregoing, no amendment, suspension or termination
of the Plan shall, without the consent of the holder of the Option, alter or
impair any rights or obligations under any Option theretofore granted or
awarded.
15. Investment Purpose. At the time of exercise of any Option, the Company
may, if it shall deem it necessary or desirable for any reason, require the
Optionee to represent in writing to the Company that it is such Optionee's then
intention to acquire the Stock for investment and not with a view to the
distribution thereof.
16. Right to Terminate Service as a Director. Nothing contained herein or
in any Option Agreement shall restrict the right of the Company to terminate the
service as a director of any Optionee at any time.
17. Governing Law. The Plan shall be governed by the laws of the State of
Delaware without regard to the conflicts of law principles thereof.
18. Effective Date. The Plan shall be effective upon approval of the
shareholders of the Company. In the event that the Plan is not approved by the
shareholders of the Company prior to the first anniversary of the approval of
the Plan by the Board, the Plan and the Options granted hereunder shall be void
and of no force or effect.
19. Term of the Plan. Unless previously terminated by the Board, the Plan
shall terminate on March 16, 2008, and no Options shall be granted thereafter.
Such termination shall not affect any Option previously granted.
3
Exhibit 4(b)
IVC INDUSTRIES, INC.
1995 STOCK OPTION PLAN
1. Purpose. The purpose of the IVC Industries, Inc. 1995 Stock
Option Plan (the "Plan") is to provide an incentive to certain employees of IVC
Industries, Inc., a Delaware corporation (the "Company"), and its subsidiaries
in order to encourage them to remain in the employ of the Company and contribute
to the Company's success by granting them stock options ("Options").
2. Administration. (a) The Plan shall be administered by either the
Board of Directors or the Compensation and Benefits Committee of the Board of
Directors (the "Board") of the Company, or such other committee as may be
appointed by the Board (the "Committee"). The Committee shall consist of at
least three directors of the Company appointed by the Board, who shall hold
office at the pleasure of the Board. Each member of the Committee shall be (i) a
"disinterested person," as defined in Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and (ii) an
"outside director," as defined in Section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code"). The Board or the Committee are hereinafter
referred to as the "Committee."
(b) It shall be the duty of the Committee to conduct the general
administration of the Plan in accordance with its terms and provisions. Subject
to the express provisions of the Plan, the Committee shall have the power and
authority to interpret the Plan, the Options, and the Option Agreements (as
defined herein), to adopt such rules and regulations for the administration,
interpretation and application of the Plan as are consistent therewith, and to
interpret, amend or revoke any such rules.
(c) The Committee shall act by a majority of its members in
attendance at a meeting at which a quorum is present (in person or by telephone)
or by a memorandum or other written instrument signed by all members of the
Committee.
(d) Members of the Committee may receive such compensation for their
services as may be determined by the Board. All expenses and liabilities
incurred by members of the Committee in connection with the administration of
the Plan shall be borne by the Company. The Committee may, with the approval of
the Board, employ attorneys, consultants, accountants, appraisers, brokers or
other persons. The Committee, the Board, the Company and its officers and
directors shall be entitled to rely upon the advice, opinions or valuations of
any such persons. All actions taken and all interpretations and determinations
made by the Committee in good faith shall be final and binding upon all persons
including the Optionees. No member of the Board or Committee, or officer of the
Company or a subsidiary, shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or
the Options, and all members of the Committee shall be fully protected by the
Company in respect of any such action, determination or interpretation.
3. Stock Subject to the Plan. The stock to be made the subject of
any Option granted hereunder shall be shares of the common stock of the Company,
par value $.08 per share (the "Stock"), whether authorized and unissued or
treasury stock, and the total number of shares of Stock for which Options may be
granted under the Plan shall not exceed, in the aggregate, 500,000 shares,
subject to adjustment in accordance with the provisions of Section 12 hereof. To
the extent consistent with Section 162(m) of the Code, and the regulations
promulgated thereunder, any shares which were the subject of unexercised
portions of any terminated or expired Options may again be subject to Options
under the Plan.
4. Grant of Options. (a) The Committee, in its sole discretion, may
authorize the granting of Options to employees, officers or key employees of the
Company and its subsidiaries and any other person who, in the opinion of the
Committee, is rendering valuable services to the Company or its subsidiaries,
including, without limitation, as an independent contractor, outside consultant
or advisor to the Company (each, an "Optionee"). Each Option so granted shall be
designated by the Committee as either a nonqualified stock option ("NQSO") or an
incentive stock option ("ISO") within the meaning of Section 422 of the Code.
Awards shall be in such amounts as the Committee shall determine, subject to the
provisions of this Section and other applicable
<PAGE>
Sections hereof, and provided, that no Optionee shall be entitled to grants of
Options, whether or not exercised, with respect to more than 500,000 shares of
Stock over the term of the Plan. No member of the Committee or non-employee
member of the Board shall be eligible to participate in the Plan. Members of the
Board who are not members of the Committee and who are employees of the Company
shall be eligible to participate in the Plan.
(b) Each Option granted to any Optionee shall be evidenced by a
written agreement in such form and containing such provisions not inconsistent
with the Plan as the Committee shall from time to time approve (the "Option
Agreement") and which need not be identical in respect of each Optionee.
5. Exercise Price. The exercise price ("Exercise Price") of a Stock
Option shall be the Fair Market Value (as defined below) per share of Stock
covered by the Option at the time that the Option is granted, except that in the
case of an ISO granted to an Optionee who is more than a 10% shareholder of the
Company within the meaning of Section 422(b)(6) of the Code ("10% Shareholder"),
the Exercise Price may not be less than 110% of the Fair Market Value of the
Stock on the date the ISO is granted. For purposes of this Section 5, "Fair
Market Value" per share of Stock as of a particular date shall mean, unless
otherwise determined by the Committee, the closing price per share of Stock as
reported on the National Association of Securities Dealers Automated Quotation
Small-Cap System, for the last preceding date on which a sale was reported.
6. Option Period. Each Option shall expire on such date as shall be
determined by the Committee, but not later than ten years from the date such
Option was granted (or five years in the case of a 10% Shareholder).
7. Exercise of Options. (a) Options granted pursuant to the Plan
will be exercisable in accordance with the terms of the Optionee's Option
Agreement, as determined in the sole discretion of the Committee, provided that
in no event will Options granted hereunder be exercisable within six months of
the date of grant.
(b) Options, to the extent vested, may be exercised in whole or in
part at any time prior to their expiration or termination, by written notice of
such exercise to the Secretary of the Company, which notice shall specify the
number of Shares as to which such Option is being exercised. Not less than 13
shares of Stock may be purchased at one time unless the number purchased is the
total number at the time available for exercise under the terms of the Option.
Notwithstanding the foregoing, no Option may be exercised prior to the date the
Plan is approved by the stockholders of the Company.
8. Payment for Stock. (a) The aggregate purchase price of Stock
issued upon the exercise of any Options granted hereunder shall be paid in full
on the date of exercise. Payment shall be made either in cash or in such other
consideration as the Committee deems appropriate, including, but not limited to,
Stock already owned by the Optionee or Stock to be acquired by the Optionee upon
exercise of Options having a total Fair Market Value, as determined by the
Committee, equal to the aggregate purchase price, or a combination of cash and
Stock having a total Fair Market Value, as so determined, equal to the aggregate
purchase price.
(b) Upon the disposition by an Optionee or other person of shares of
Stock acquired pursuant to the exercise of an ISO prior to satisfaction of the
holding period requirements of Section 422 of the Code, or upon the exercise of
an NQSO, the Company shall have the right to require such Optionee or other
person to pay by cash, or certified or cashier's check payable to the Company,
the amount of any taxes which the Company may be required to withhold with
respect to such transactions, provided that, in the case of the exercise of an
NQSO, the Committee may permit an Optionee to elect, pursuant to such rules as
the Committee may establish, to have the Company reduce the number of such
shares that otherwise would be issued upon such exercise by the appropriate
number of shares to accomplish such withholding; and provided, further that, the
Committee may impose such restrictions and conditions on the payment of any
withholding obligation as may be required to satisfy applicable regulatory
requirements.
9. Limitations on Grant of ISOs. (a) The aggregate Fair Market Value
(determined as of the date of grant) of the Stock for which ISOs may first
become exercisable by any Optionee during any calendar year under this Plan,
together with that of common stock subject to incentive stock options first
exercisable by such
2
<PAGE>
Optionee under any other plan of the Company or any subsidiary, shall not exceed
$100,000; to the extent such limitation is exceeded as a result of acceleration,
Options shall be treated as NQSOs.
(b) There shall be imposed in the Option Agreement relating to ISOs
such terms and conditions as are required in order that the Option be an
"incentive stock option" as that term is defined in Section 422 of the Code.
(c) No ISO may be granted to any person who is not an employee of
the Company.
10. Termination of Employment. Except as otherwise determined by the
Committee at the time of grant:
(a) In the event (i) of a termination by the Company or a subsidiary
of an Optionee's employment other than for Cause (as defined below), (ii) an
Optionee voluntarily leaves the employ of the Company or a subsidiary or (iii)
an Optionee shall die or become disabled (within the meaning of Section 22(e)(3)
of the Code) while the Optionee is employed by the Company or a subsidiary, such
Optionee, his estate or his legal guardian, as the case may be, will be entitled
to exercise such Optionee's Options, to the extent exercisable or vested, for a
period of 90 days following such event. For purposes of this Plan, "for Cause"
shall mean, with respect to the termination by the Company or a subsidiary of an
Optionee's employment, (i) the continued failure by such Optionee to
substantially perform his or her duties with the Company or a subsidiary (other
than any such failure resulting from his or her incapacity due to physical or
material illness) or (ii) the engaging by such Optionee in conduct which is
materially injurious to the Company or a subsidiary, monetarily or otherwise, in
either case as determined by the Company.
(b) In the event that an Optionee's employment with the Company or a
subsidiary is terminated by the Company for Cause, such Optionee's right to
exercise his Options shall thereupon terminate and all of such Optionee's
Options, whether or not vested, shall be rendered null and void and shall become
unexercisable.
(c) In the event that the Optionee is not an employee of the Company
or a subsidiary and such Optionee's relationship with the Company ceases, the
Committee, in its sole discretion, shall determine whether (i) such Optionee
will have the right to exercise his Options, to the extent then vested, or (ii)
such Options shall terminate and be rendered null and void.
(d) Upon the occurrence of any of the events set forth in
subparagraph (a) or (b) above, an Optionee's non-vested Options shall terminate
and be rendered null and void.
11. Nontransferability. (a) No Option shall be transferable other
than by will or the laws of descent and distribution; provided, however, that
the Committee, in its sole discretion, may provide in the Option Agreement that
the Optionee may transfer, without consideration, all or a portion of his NQSOs
to members of his immediate family (i.e., children, grandchildren or spouse), to
trusts for the benefit of immediate family members and to partnerships in which
such family members are the only parties and (b) during the lifetime of an
Optionee the Option shall be exercisable only by such Optionee or, in the case
of disability, by such Optionee's personal representative. No permitted transfer
so effected shall be effective to bind the Company unless the Company has been
furnished with written notice thereof and such evidence as the Committee may
deem reasonably necessary to establish the validity of the transfer and the
acceptance by the transferee or transferees of the terms and conditions of the
Plan.
12. Stock Adjustments. (a) If the outstanding shares of Stock are
increased, decreased or changed into, or exchanged for, a different number or
kind of shares or securities of the Company through a reorganization or merger
in which the Company is the surviving entity, or through a combination,
recapitalization, reclassification, stock split, stock dividend, stock
consolidation or otherwise, an appropriate adjustment shall be made in the
number and kind of shares that may be issued pursuant to Options. Any such
adjustment, however, shall be made without change in the total payment, if any,
applicable to the portion of the Options not exercised but with a corresponding
adjustment in the price for each share.
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(b) Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
each Option theretofore granted to any Optionee which shall not have theretofore
expired or otherwise been cancelled or become unexercisable shall become
immediately exercisable in full. Notwithstanding the foregoing and provided that
the rights of any Optionee shall not be adversely affected, the Committee may
provide in writing in connection with, or in contemplation of, any such
transaction for (i) the assumption by the successor corporation of the Options
theretofore granted or the substitution by such corporation for such Options of
awards covering the stock of the successor corporation, or a parent or
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares and prices or (ii) for the payment in cash, in lieu of and in complete
satisfaction of such Options, in an amount equal to the aggregate Fair Market
Value of the shares subject to such Options less the Exercise Price of the
shares subject to such Options.
(c) In adjusting Options to reflect the changes described in this
Section 12, or in determining that no such adjustment is necessary, the
Committee may rely upon the advice of independent counsel and accountants of the
Company, and the determination of the Committee shall be conclusive. No
fractional shares of stock shall be issued under this Plan on account of any
such adjustment.
13. No Rights as a Stockholder. An Optionee or a permitted
transferee of a Option shall have no rights as a stockholder with respect to any
Stock covered by his, her or its Option until such Optionee or a permitted
transferee shall have become the holder of record of such Stock.
14. Amendment and Termination. (a) The Board may at any time
terminate or suspend the Plan (or any part hereof) and the Board and the
Committee may amend or modify the Plan (or any part hereof); provided, however,
if an amendment would (i) materially increase the benefits accruing to Optionees
within the meaning of Rule 16b-3(a) under the Exchange Act, (ii) increase the
aggregate number of shares which may be issued under the Plan or to any
individual or (iii) modify the requirements of eligibility for participation in
the Plan, the amendment shall be approved by a majority of the Company's
stockholders.
(b) Notwithstanding the foregoing, no amendment, suspension or
termination of the Plan shall, without the consent of the holder of the Option,
alter or impair any rights or obligations under any Option theretofore granted
or awarded.
15. Investment Purpose. At the time of exercise of any Option, the
Company may, if it shall deem it necessary or desirable for any reason, require
the Optionee to represent in writing to the Company that it is such Optionee's
then intention to acquire the Stock for investment and not with a view to the
distribution thereof.
16. Right to Terminate Employment. Nothing contained herein or in
any Option Agreement shall restrict the right of the Company to terminate the
employment of any Optionee at any time, with or without Cause.
17. Finality of Determinations. Each determination, interpretation,
or other action made or taken pursuant to the provisions of the Plan by the
Committee shall, unless otherwise determined by the Board, be final and shall be
binding and conclusive for all purposes.
18. Governing Law. The Plan shall be governed by the laws of the
State of Delaware without regard to the conflicts of law principles thereof.
19. Effective Date. The Plan shall be effective upon approval of the
stockholders of the Company by the vote of the holders of a majority of the
Stock of the Company voting at a meeting of such holders in person or by proxy;
except that this Plan was adopted and approved by the Board effective July 27,
1995 to permit the grant of Options prior to the approval of the Plan by the
Company's stockholders. In the event that the Plan is not approved by the
stockholders of the Company in the manner set forth above prior to the first
anniversary of its approval by the Board, the Plan and the Options granted
hereunder shall be void and of no force or effect.
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20. Term of the Plan. Unless previously terminated by the Board or
the Committee, the Plan shall terminate on March 15, 2005, and no Options shall
be granted thereafter (except that in the case of ISOs, no Options may be
granted after July 27, 2005). Such termination shall not affect any Option
previously granted.
5
Exhibit 4(c)
RESTATED CERTIFICATE OF INCORPORATION
OF
IVC INDUSTRIES, INC.
A. The Corporation was originally incorporated under International Vitamin
Corporation on September 15, 1971.
B. The Restated Certificate of Incorporation set forth herein was duly
adopted in accordance with the provisions of Section 242 and 245 of the General
Corporation Law of the State of Delaware by a resolution of the Board of
Directors setting forth the Restated Certificate of Incorporation and declaring
its advisability and by adoption by a majority of the holders of all outstanding
stock.
C. The Certificate of Incorporation of the Corporation as now in full
force and effect is hereby restated, integrated and amended to read in full as
follows:
FIRST. The name of the Corporation is IVC Industries, Inc.
SECOND. The address of the Corporation's registered office in the State of
Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover, County of
Kent. The name of its registered agent at such address is The Prentice-Hall
Corporation System.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law.
FOURTH. The Corporation shall have authority to issue 25,000,000 shares of
Common Stock of the par value of $0.08 per share and 2,000,000 shares of
Preferred Stock of the par value of $0.01 per share.
FIFTH. In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the following provisions are inserted in this
Restated Certificate of Incorporation for the regulation and conduct of the
business and affairs of the Corporation:
1. The election of directors of the Corporation need not be by
written ballot unless the By-Laws so require.
2. The business and affairs of the Corporation shall be managed by,
or under the direction of, a Board of Directors consisting of not less than
seven nor more than fifteen persons. The exact number of directors within the
minimum and maximum limitations specified herein shall be fixed from time to
time by resolution of a majority of the whole Board.
3. The directors of the Corporation, by the affirmative vote of a
majority of the whole Board, at any regular or special meeting, shall have the
power to adopt, amend or repeal By-Laws of the Corporation, provided, however,
that such power of the Board shall not divest the stockholders of the
Corporation of their power to adopt, amend or repeal By-Laws of the Corporation.
4. In addition to the powers and authorities conferred upon the
Board of Directors of the Corporation by this Restated Certificate of
Incorporation, the Board of Directors of the Corporation may exercise all such
powers and take all such actions as may be exercised or taken by the
Corporation, subject, however, to the provisions of the laws of the State of
Delaware, this Restated Certificate of Incorporation and the By-Laws of the
Corporation.
5. Any vote or votes authorizing liquidation of the Corporation or
proceedings for its dissolution may provide, subject to the rights of creditors
and preferred stockholders, if any, for the distribution pro rata among the
stockholders of the Corporation of the assets of the Corporation, wholly or in
part, in cash or in kind, whether such assets be in cash or other property, and
any such vote or votes may authorize the Board of Directors of the Corporation
to determine the valuation of the different assets of the Corporation for the
purpose of such liquidation
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and may divide or authorize the Board of Directors to divide such assets or any
part thereof among the stockholders of the Corporation, in such manner that
every stockholder will receive a proportionate amount in value (determined as
aforesaid) of cash and/or property of the Corporation upon such agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
his 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.
SIXTH. The Corporation shall, to the fullest extent permitted by Section
145 of the General Corporation law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom its shall have
power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said section
and the indemnification provided for herein shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any By-Law,
agreement, vote of stockholders or disinterested Directors of otherwise, both as
to action in his 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
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
SEVENTH. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation, or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholder of this Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of
this Corporation as consequence of such compromise and arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, and also on this
Corporation.
EIGHTH. If any Article of this Certificate of Incorporation or any portion
thereof is found to be void or unenforceable by a court of competent
jurisdiction, the remaining Articles or portions of said Article, as the case
may be, shall nevertheless remain in full force and effect as though the
unenforceable part had been severed and deleted.
NINTH. A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (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) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
IN WITNESS WHEREOF, IVC has caused this Restated Certificate of
Incorporation to be executed by E. Joseph Edell, Chief Executive Officer, and
attested by its Secretary Domenic Golato, this 7th day of January, 2000.
IVC Industries, Inc.
By: /s/ E. Joseph Edell
----------------------
E. Joseph Edell
Chief Executive Officer
Attest:
/s/ Domenic Golato
- ------------------
Domenic Golato
Secretary
Exhibit 5
Rosenman & Colin LLP
575 Madison Avenue
New York, New York 10022
January 11, 2000
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 312,500 shares of the Company's
common stock, par value $0.08 per share, for issuance under the 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 312,500
shares have been duly authorized and, when issued 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.
Very truly yours,
ROSENMAN & COLIN LLP
By: /s/ Edward H. Cohen
-------------------
A Partner
Exhibit 23(a)
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
15, 1999 included in the IVC Industries, Inc. Form 10-K for the year ended July
31, 1999 and to all references to our firm included in this Form S-8
registration statement.
AMPER, POLITZINER & MATTIA P.A.
Edison, New Jersey
January 10, 2000
