As filed with the Securities and Exchange Commission on December 23, 2004
March 21, 2008
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
Under the Securities Act of 1933
INTEGRATED BIOPHARMA, INC.
(Exact
Integrated BioPharma, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 2834 22-2407475
(State or other jurisdiction of (Primary standard industrial (I.R.S. employer
incorporation or organization) Classification code number Identification no.)
Delaware | 2834 | 22-2407475 |
(State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer
Identification No.) |
225 Long Avenue
Hillside, New JerseyNJ 07205
(973) 926-0816
(Address,
(888) 319-6962
(Address, including zip code and telephone number, including area code, of Registrant'sregistrant’s principal executive offices)
E. Gerald Kay
Chief Executive Officer
Integrated BioPharma, Inc.
225 Long Avenue
Hillside, New JerseyNJ 07205
(973) 926-0816
(Address,
(888) 319-6962
(Name, address, including zip code and telephone number, including area code, of agent for service)
Copies to:
Michael L. Pflaum, Esq.
Andrew H. Abramowitz, Esq.
Greenberg Traurig, LLP
200 Park Avenue
New York, New YorkNY 10166
Telephone:
(212) 801-9200
Telecopier: (212) 801-6400
Approximate date of commencement of proposed sale to the public:From time to time after the effective date of this registration statement.
Registration Statement becomes effective.
If the only securities being registered on this formForm are being offered pursuant to dividend or interest reinvestment plans, please check the following box. |_|
[ ]
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. |X|
[x]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. |_| _______
[ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. |_| ______
[ ]
If delivery of this prospectusForm is expecteda registration statement pursuant to be madeGeneral Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 434, please462(e) under the Securities Act, check the following box. |_| ______
CALCULATION OF REGISTRATION FEE
Title[ ]
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of Proposed Proposed Maximum Proposed Maximum Amount
Each Class Amount to be Offering Aggregate of
of Securities Registered Price Per Offering Registration
to be Registered (1) Share Price (2) Fee
- ---------------- ------------ ---------------- ---------------- ------------
Common Stock, 366,085 $6.93 $2,536,969 $298.60
$0.002 par value
per share
(1) The number of shares being registered represent the shares of the
Registrant's common stock previously issued to the selling stockholders, as
well as the maximum number of shares that may be issued to the selling
stockholders upon the exercise of warrants to purchase 136,000 shares of
the Registrant's common stock. Pursuantsecurities pursuant to Rule 416(a)413(b) under the Securities Act, of 1933, as amended, this registration statement also registers such
additional shares ofcheck the Registrant's common stock as may become issuable
as a result of stock splits, stock dividends or similar events.
(2)following box. [ ]
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be
Registered | Amount to be Registered | Proposed Maximum Offering Price Per Share (1) | Proposed Maximum Aggregate Offering Price (1) | Amount ofRegistration Fee |
Common Stock, $0.002 par value per share | 5,503,167 | $2.92 | $16,069,247 | $632.00 |
(1) Estimated solely for the purpose of computing the amount ofcalculating the registration fee pursuant to Rule 457(c) of the Securities Act. The price
per share and aggregate offering price areAct of 1933, based upon $6.93,on the average of the high and low sales priceprices of the Registrant's common stock, on December
21, 2004, as reported on the NASDAQ Global Market on March 19, 2008.
The American Stock Exchange.
The Registrantregistrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrantregistrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordancewith Section 8(a) of the Securities Act of 1933 or until thisthe registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
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The information contained in this prospectus is not complete and may be changed. These securitiesWe may not be soldsell these securities until the related registration statement filed with the Securities and Exchange Commission becomesis effective. This prospectus is not an offer to sell northese securitiesand is it seekingnot soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
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PROSPECTUS
SUBJECT TO COMPLETION, DATED DECEMBER 23, 2004
INTEGRATED BIOPHARMA, INC.
366,085 Shares of MARCH 21, 2008
PROSPECTUS
5,503,167shares
Integrated BioPharma, Inc.
Common Stock
All of the common stock offered hereby may be sold from time to time by and for the account of the selling stockholders named in this prospectus and the person(s) to whom such stockholders may transfer their shares. The selling stockholders acquired the shares, or will acquire (i) 200,000 shares of common stock and (ii) the remainder of the shares of common stock upon the exerciseconversion of warrants,Series C Convertible Preferred Stock and 9.5% Convertible Preferred Promissory Notes, all of which were issued or are issuable to the selling stockholders in a private placementsplacement with us. CD Financial, LLC, one of the selling stockholders named in this prospectus, is an affiliate of Carl DeSantis, a director of our company.
The methods of sale of the common stock offered by this prospectus are described under the heading "Plan“Plan of Distribution"Distribution” on page 5. Except with
respect to the exercise of the outstanding warrants during the exercise period,
we4. We will receive none of the proceeds from the sale of any of the common stock to which this prospectus relates. See "Use“Use of Proceeds and Expenses of the Offering"Offering” on page 3. Except for brokerage expenses, fees, discounts and
commissions, which will all be paid by the selling stockholders, we will pay all
expenses incurred in connection with the offering described in this prospectus.
The prices at which the selling stockholders may sell the shares of common stock that are part of this offering will be determined by the prevailing market price for the shares at the time the shares are sold, a price related to the prevailing market price, at negotiated prices or prices determined, from time to time by the selling stockholders. See "Plan“Plan of Distribution"Distribution” on page 5.
4.
Our common stock is listed on the American Stock Exchange (Symbol:
INB)NASDAQ Global Market under the symbol “INBP”. On December 21, 2004,March 19, 2008, the closing price of our common stock on the sharesNASDAQ Global Market was $6.97$2.86 per share.
Investing
The selling stockholders and any broker-dealer executing sell orders on behalf of the selling stockholders may be deemed to be “underwriters” within the meaning of the Securities Act of 1933, as amended (the “Securities Act”). Commissions received by any broker-dealer may be deemed to be underwriting commissions under the Securities Act. We have agreed to indemnify the selling stockholders against certain liabilities, including liabilities under the Securities Act.
You should read this prospectus carefully before you invest in the common stock involves certain risks.
See "Risk Factors" on page 1.
Neither the SEC nor any state securities commission has approved or
disapproved these securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
our securities.
INVESTING IN OUR COMMON STOCK INVOLVES RISK. SEE “RISK FACTORS”BEGINNING ON PAGE 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectusprospectus is __________, 2005.
, 2008.
TABLE OF CONTENTS
The Company....................................................................1
Forward-Looking Information....................................................1
Risk Factors...................................................................1
Use Of Proceeds And Expenses Of The Offering...................................3
Selling Stockholders...........................................................4
Plan Of Distribution...........................................................5
Where You Can Find More Information............................................6
Legal Matters..................................................................8
Experts........................................................................8
THE COMPANY | | 2 |
RISK FACTORS | | 3 |
USE OF PROCEEDS AND EXPENSES OF THE OFFERING | | 3 |
SELLING STOCKHOLDERS | | 4 |
PLAN OF DISTRIBUTION | | 5 |
LEGAL MATTERS | | 7 |
EXPERTS | | 7 |
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE | | 8 |
WHERE YOU CAN FIND MORE INFORMATION | | 9 |
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS | | 9 |
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES | | 10 |
THE COMPANY
Integrated BioPharma, Inc., a Delaware corporation, together with its subsidiaries, is engaged primarily in manufacturing, distributing, marketing and sales of vitamins, nutritional supplements and herbal products, including vitamins sold as single entity
supplements,products; the manufacture and distribution of Paclitaxel, which is the primary chemotherapeutic agent in multi-vitamin combinationsthe treatment of breast cancer, pharmaceutical technical services through its contract research organization; and the biotechnology business that uses its patented plant-based technology to produce vaccines and therapeutic antibodies. Our customers are located primarily in varying potency levels and
in different packaging sizes.the United States. We were previously known as Integrated Health Technologies, Inc. and, prior to that, as Chem International, Inc. We are also
engagedwere reincorporated in other linesour current form in Delaware in 1995. Our common stock trades on the NASDAQ Global Market under the symbol “INBP.” We continue to do business as Chem International, Inc. with our customers and certain vendors.
On November 9, 2007, our board of business, includingdirectors approved a plan to distribute our equity interests in our subsidiary, InB: Biotechnologies, Inc. to our stockholders through a process commonly referred to as a spin-off. InB: Biotechnologies, Inc. is a biopharmaceutical company focused on the development and salecommercialization of nutritional formulations basednovel products for the prevention and treatment of serious infectious diseases through its patented plant-based technology. We are currently working to effectuate this spin off, and we filed a preliminary information statement on plant-derived minerals through patented
hyperaccumulation technology,Form 14C with the Securities and Exchange Commission on March 7, 2008 in connection with the manufacture and distribution of Paclitaxel, which isapproximately 84% of the primary chemotherapeutic agent in the treatmentissued and outstanding shares of breast cancer.
We maintain ourInB: Biotechnologies, Inc.
Our principal executive offices are located at 225 Long Avenue, Hillside, New Jersey 07205. Our07205, and our telephone number is (973) 926-0816.
FORWARD-LOOKING INFORMATION
Some(888) 319-6962. Our website is located at www.ibiopharma.com. Information on our website is not, and should not be considered, part of this prospectus.
On February 21, 2008, we consummated a private placement of securities to a limited number of investors, including Imperium Master Fund, Ltd. (“Imperium”) and CD Financial, LLC (“CD Financial”) pursuant to Securities Purchase Agreements. CD Financial is an affiliate of Carl DeSantis, a director of the statementsCompany. The transactions resulted in gross proceeds of approximately $17,500,000 to the Company. On March 20, 2008, we amended and restated the Securities Purchase Agreement with Imperium, effective as of February 21, 2008, to add additional investors without increasing the aggregate size of the private placement. Such additional investors are included herein as selling stockholders.
The private placement involved the sale of (i) 6,000 shares of newly-designated Series C Convertible Preferred Stock (the “Series C Preferred”) with a stated value of $1,000 per share, (ii) $4,500,000 in principal amount of 9.5% Convertible Promissory Notes (the “Convertible Notes”), (iii) 200,000 shares of common stock, and (iv) $7,000,000 in principal amount of 8.0% Promissory Notes (the “Notes” and together with the common stock sold, the Convertible Notes and the Series C Preferred, the “Securities”). The Notes and the Convertible Notes are secured by a pledge of substantially all of our assets.
2
The Certificate of Designation of the Series C Preferred states, among other things, that the shares of the Preferred Stock are convertible any time at the option of the holder into shares of our common stock based on a conversion price set forth in the Certificate of Designation, subject to adjustment in the event of a stock dividend, stock split or combination, reclassification or similar event, and upon certain below-market issuances of our common stock. The Series C Preferred may be redeemed under certain circumstances stated in the Certificate of Designations. The Series C Preferred accrues dividends at a rate of 10% per year.
The Convertible Notes bear interest at an annual rate of 9.5% and mature on or before February 21, 2011. They may be converted, at any time and at the holder’s option, into shares of our common stock based on a conversion price as set out in the Convertible Notes. We have the option to prepay the Convertible Notes.
The Notes bear interest at an annual rate of 8% and mature on or before February 21, 2009. We have the option to prepay the Notes.
The Securities, and the shares of common stock underlying the Securities, were issued and sold in reliance upon the exemption from registration contained in or incorporated by reference in
this prospectus discuss our plans and strategies for our respective businesses
or state other forward-looking statements, as this term is defined inSection 4(2) of the Private Securities Litigation Reform Act of 1995. The words "anticipate,"
"believe," "estimate," "expect," "plan," "intend," "should," "seek,"
"will,"1933, as amended, and similar expressions are intended to identify these
forward-looking statements, but are not the exclusive means of
identifying them. These forward-looking statements reflect the current views
of our management. However, various risks, uncertainties and contingencies
could cause our actual results, performance or achievements to differ
materially from those expressed in, or implied by, these statements, including
the following:
* our success or failure to implement our business strategies;
* our potential inability to raise additional capital;
* the approval of our pending atent applications;
* our ability to produce Paclitaxel on a commercial scale; and
* other factors discussed under the heading "Risk Factors" and
elsewhere in this prospectus.
We assume no obligation to update any forward-looking statements
contained in this prospectus, whether as a result of new information, future
events or otherwise. For a discussion of important risks of an investment in our
securities, including factors that could cause actual results to differ
materially from results referred to in the forward-looking statements, see "Risk
Factors" below. Regulation D promulgated thereunder.
RISK FACTORS
You should carefully consider the informationspecific risks set forth under the caption "Risk Factors." In light“Risk Factors” in any of these risks, uncertainties and
assumptions,our filings with the forward-looking events discussed inSEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 incorporated by reference in this prospectus might not occur.
RISK FACTORSherein before making an investment decision. For more information, see “Where You should carefully consider the risks described below before deciding
whether to invest in shares of our common stock. Any investment in our common
stock involves a high degree of risk. The risks and uncertainties described
below are not the only ones we face. Additional risks and uncertainties not
presently known to us may also impair our operations and business.
If we do not successfully address any of the risks described below,
there could be a material adverse effect on our financial condition, operating
results and business, and the trading price of our common stock may decline and
you may lose all or part of your investment. We cannot assure you that we will
successfully address these risks.
Over 366,000 of our shares are eligible for sale and their sale or potential to
sell may depress the market price of our common stock.
Sales of a significant number of shares of our common stock in the
public market could harm the market price of our common stock. This prospectus
covers 366,085 shares of our common stock, which represents 3.0% of the total of
12,565,790 shares issued and outstanding as of December 17, 2004. As additional
shares of our common stock become available for resale in the public market
pursuant to this registration of shares and future registrations of shares and
thereby increase the supply of our common stock, the price of the common stock
could decrease as a result. Some or all of the shares of our common stock also
may be offered from time to time in the open market pursuant to Rule 144, and
these sales may have a depressive effect on the market for our common stock.
103,085 of the 203,085 shares of common stock held by Aloe Commodities
1
International, Inc. included in this prospectus are currently being held in
escrow pending the resolution of a trademark infringement action against us for
which we will be indemnified by Aloe Commodities. The 100,000 shares of common
stock issuable upon exercise of a warrant by Wolfe Axelrod Weinberger Associates
LLC are subject to a so-called "lock-up" agreement, which limits open market
sales by that warrant holder in any calendar week to the greater of 5,000 shares
of our common stock or 12% of the average daily volume of the common stock
during the preceding calendar week. In general, a person who has held restricted
shares for a period of one year may, upon the filing with the SEC of a
notification on Form 144, sell into the market common stock in an amount equal
to the greater of 1% of the outstanding shares or the average weekly number of
shares sold in the last four weeks prior to such sale. These sales may be
repeated once each three months, and any of the restricted shares may be sold by
a non-affiliate after they have been held two years.
The inability to obtain necessary additional capital in the future on acceptable
terms could delay us from executing our business plan or prevent us from doing
so entirely.
We expect to need additional capital in the future to fund our
operations, finance investments in equipment and corporate infrastructure,
increase the range of products we offer and respond to competitive pressures and
perceived opportunities. Cash flow from operations, and cash on hand may not be
sufficient to cover our operating expenses and capital investment needs. We
cannot assure you that additional financing will be available on terms
acceptable to us, if at all. A failure to obtain additional funding could
prevent us from making expenditures that are needed to allow us to grow or
maintain our operations. Increases in business can temporarily reduce our
working capital due to cash flow lags.
If we raise additional funds by selling equity securities, the relative
equity ownership of our existing investors could be diluted or the new investors
could obtain terms more favorable than previous investors. If we raise
additional funds through debt financing, we could incur significant borrowing
costs. The failure to obtain additional financing when required could result in
us being unable to grow as required to maintain profitable operations.
Our revenue would decline significantly if we lose one or more of our most
significant customers, which could have a significant adverse impact on us.
A significant portion of our revenues are concentrated among one
customer, Herbalife International of America, Inc. For the year ended June 30,
2004, Herbalife represented approximately 58% of total revenue. The loss of
Herbalife as a customer could have a significant adverse impact on us.
We depend on our senior management, the loss of whom would have an adverse
effect on us.
We presently are dependent upon the executive abilities of our Chairman
of the Board, President and Chief Executive Officer, E. Gerald Kay, and our
other executive officers. Our business and operations to date chiefly have been
implemented under the direction of these individuals, who presently are, and in
the future will be, responsible for the implementation of our anticipated plans
and programs. While we have obtained key-man life insurance in the amount of
$1,000,000 on the life of Mr. Kay, with our company as the named beneficiary,
the loss or unavailability of the services of one or more of our principal
executives would have an adverse effect on us. Given our present financial
condition, we may encounter difficulty in our ability to recruit and ultimately
hire any replacement or additional executive officers having similar background,
experience and qualifications as those of our current executive officers.
There is no assurance that we will remain listed on an active trading market.
Although our common stock is quoted on the American Stock Exchange,
there can be no assurance that we will, in the future, be able to meet all the
requirements for continued quotation on that exchange. In the absence of an
active trading market or if our common stock cannot be traded on the American
Stock Exchange, our common stock could instead be traded on the OTC Bulletin
Board or in the Pink Sheets. In such event, the liquidity and stock price in the
secondary market may be adversely affected. In addition, in the event our common
stock was delisted, broker-dealers have certain regulatory burdens imposed upon
them which may discourage broker-dealers from effecting transactions in our
common stock, further limiting the liquidity of our common stock.
We may not receive approval for our pending patent applications for nutritional
supplements, which could enable our competitors to use similar methods and
processes.
We are the registered owner of a patent granted for a method of
producing nutritional formulations based on plant-derived minerals. We also have
five patent applications pending before the U.S. Patent and Trademark Office for
methods and processes relating to nutritional supplements containing
methylselenocysteine, production of pharmaceutically active proteins in sprouted
seedlings, a system for transient express of genes in plants, improved plant
transformation and floral transformation. We can give no assurance that we will
be granted such patents. To the extent we are not granted such patents, our
competitors could more easily produce nutritional supplements similar to ours.
2
We have entered into several transactions with entities controlled by some of
our officers and directors, which could pose a conflict of interest.
We have entered into several agreements and arrangements described in
our SEC public filings incorporated by reference in this prospectus, including
the lease of real property from Vitamin Realty Associates, L.L.C., the merger
with NuCycle Acquisition Corp., and the acquisition of the Paxis business from
Trade Investment Services, LLC, that all involved transactions with entities
significantly owned by members of the Kay family, who collectively own a
majority of our shares of common stock. Although we believe that these
transactions were advantageous to us and were on terms no less favorable to us
than could have been obtained from unaffiliated third parties, transactions with
related parties can potentially pose a conflict of interest.
Our executive officers and directors have majority voting power and may take
actions that may not be in the best interest of other stockholders, but in their
own interest.
Our executive officers and directors beneficially own approximately 71%
of our outstanding shares. If these stockholders act together, they may be able
to exert significant control over our management and affairs requiring
stockholder approval, including approval of significant corporate transactions.
This concentration of ownership may have the effect of delaying or preventing a
change in control and might adversely affect the market price of our common
stock. This concentration of ownership may not be in the best interests of all
our stockholders.
We have a staggered board of directors, which could impede an attempt to acquire
us or remove our management.
Our board of directors is divided into three classes, each of which
serves for a staggered term of three years. This division of our board of
directors could have the effect of impeding an attempt to take over our company
or change or remove management, since only one class will be elected annually.
Thus, only approximately one-third of the existing board of directors could be
replaced at any election of directors.
Our product liability insurance may be insufficient to cover possible claims
against us.
In view of the nature of our nutritional supplements business, we are
subject to the inherent risk of product liability claims in the event that among
other things, the use or ingestion of any of our products results in sickness or
injury. We currently maintain product liability insurance under an umbrella
policy in the amount of $5 million per occurrence and $5 million in the
aggregate, which we deem adequate to cover risks associated with such use.
However, there can be no assurance that existing or future insurance coverage
will be sufficient to cover any possible product liability risks or that such
insurance will continue to be available to us on economically feasible terms.
There is no assurance that we will be able to produce Paclitaxel on a commercial
scale.
Our Paxis Pharmaceuticals, Inc. subsidiary uses botanical materials
derived from the yew tree, or taxus baccata, to produce Paclitaxel, a cancer
therapy drug. Yew trees are in limited supply. Paxis has formed a joint venture
with Chatham Biotec, Ltd. to produce extract and intermediate precursor
Paclitaxel from Canadian Taxus trees. We can give no assurance that the joint
venture will be successful in producing such Paclitaxel or that we can locate
alternate sources of yew trees.
Can Find More Information.”
USE OF PROCEEDS AND EXPENSES OF THE OFFERING
We will not receive any of the proceeds from the sale of the shares offered by the selling stockholders. We will receive a maximum of approximately
$650,500 from the exercise of all of the warrants, assuming all of the warrants
are exercised for cash and in full, of which there can be no assurance. Any
proceeds received by us in connection with the exercise of the warrants will be
used for working capital and general corporate purposes. With the exception of
any brokerage fees and commission which are the obligation of the selling
stockholders, we are responsiblepay for the fees, costs and expenses of this offering, which are estimated to be $9,000,$30,632, inclusive of our registration fees, legal and accounting fees, printing costs "blue sky" filing and other miscellaneous fees and expenses.
3
SELLING STOCKHOLDERS
The following table sets forth, in the first column,forth: (i) the names of the selling stockholders andstockholders; (ii) the number of shares being registered for sale as of the date of the prospectus for each selling stockholder; and sets forth, in the second column,(iii) the number of shares of common stock known by us to be beneficially owned by each of the selling stockholders as of December 17, 2004. None of the selling stockholders
has had a material relationship with us within the past three years other than
as a result of the ownership of our shares or other securities, except as set
forth below.March 19, 2008. The shares offered by this prospectus may be offered from time to time by the selling stockholders.
The third column lists the shares of common stock being offered by this prospectus by the selling stockholders. Because the exercise price of the
warrants may be adjusted, the number of shares that will actually be issued may
be more or less than the number of shares being offered by this prospectus. The fourth column assumes the sale of all of the shares offered by the selling stockholders pursuant to this prospectus. Unless otherwise noted below, none of the selling stockholders is a broker-dealer. The selling stockholders may sell all, some or none of their shares in this offering. See "Plan“Plan of Distribution."
”
| | Beneficial Ownership
Prior to this Offering(1) | | Shares Registered
in this
Offering | | Beneficial Ownership After this Offering (2) |
| | | | Number of Shares | | Percent (3) |
Imperium Master Fund Ltd. | - | | 1,302,135 | | 868,615 | | 5.6% |
CD Financial, LLC(4) | 2,292,809 | | 3,763,930 | | 4,819,350 | | 24.7 |
Jeffrey Devers | - | | 28,571 | | 28,571 | | 0.2 |
John Michaelson | - | | 21,428 | | 21,428 | | 0.1 |
Mark Ain | - | | 67,706 | | 44,889 | | 0.3 |
Robert Silverstein | - | | 256,539 | | 165,272 | | 1.1 |
JED Family Trust | - | | 28,571 | | 28,571 | | 0.2 |
Richard Squires | - | | 34,286 | | 34,286 | | 0.2 |
Selling Stockholders Total | 2,292,809 | | 5,503,167 | | 6,010,982 | | 32.9% |
Number | (1) | Beneficial ownership as of SharesMarch 19, 2008, for all selling stockholders based upon information provided by the selling stockholders known to us. |
| (2) | Assumes the conversion to shares of Numbercommon stock on March 19, 2008 registered pursuant to this prospectus. |
| (3) | Based on 14,691,126 shares of Shares Beneficial Ownership
Common Stockcommon stock outstanding as of Common Stock After Offering
Selling Stockholder Beneficially Owned to be Sold (NumberMarch 19, 2008. |
| (4) | CD Financial, LLC is an affiliate of Shares)
------------------- ------------------ ---------------- --------------------
Aloe Commodities International, Inc. (1) 203,085 (2) 203,085 (2) 0
Anisfield Investments Ltd. (3) 27,000 27,000 0
Beaufort International Associates Limited (4) 12,000 (5) 12,000 (5) 0
Friendly Capital, LLC (6) 18,000 (5) 18,000 (5) 0
Griffin Securities, Inc. (7) 6,000 (5) 6,000 (5) 0
Wolfe Axelrod Weinberger Associates LLC (8) 100,000 (5) 100,000 (5) 0
Carl DeSantis, a member of our Board of Directors. |
- --------------------
(1) L. Scott McKnight serves as Chief Executive Officer of Aloe Commodities
International, Inc.. By reason of such relationship, Mr. McKnight may be deemed
to share voting and dispositive power over securities held by Aloe.
(2) 103,085 of the listed shares of common stock held by Aloe are currently
being held in escrow pending the resolution of a trademark infringement action
against us for which we will be indemnified by Aloe.
(3) Jamie E. Levey serves as President of Anisfield Investments Ltd. By reason
of such relationship, Ms. Levey may be deemed to share voting and dispositive
power over securities held by Anisfield.
(4) Taniver Malik serves as Managing Director of Beaufort International
Associates Limited. By reason of such relationship, Mr. Malik may be deemed to
share voting and dispositive power over securities held by Beaufort.
(5) The listed shares are issuable pursuant to currently exercisable warrants.
Because the exercise price of the warrants may be adjusted, the actual number of
shares of common stock that may be issued may be more or less than the number of
shares being offered by this prospectus. The warrants issued to Beaufort,
Friendly Capital, LLC and Griffin Securities, Inc. are exercisable into an
aggregate of 36,000 shares of common stock at a current exercise price of
$14.00. The warrant issued to Wolfe Axelrod Weinberger Associates LLC are
exercisable into an aggregate of 100,000 shares of common stock at a current
exercise price of (i) $1.37 for the first 75,000 shares of common stock, and
(ii) $1.75 for the remaining 25,000 shares of common stock.
(6) Adrian Stecyk serves as Managing Member of Friendly Capital, LLC. By reason
of such relationship, Mr. Stecyk may be deemed to have voting and dispositive
power over securities held by Friendly Capital.
(7) Adrian Stecyk serves as President and Chief Executive Officer of Griffin
Securities, Inc. By reason of such relationship, Mr. Stecyk may be deemed to
have voting and dispositive power over securities held by Griffin Securities.
4
(8) Stephen D. Axelrod and Donald Weinberger serve as Managing Directors of
Wolfe Axelrod Weinberger Associates LLC. By reason of such relationship, Messrs.
Axelrod and Weinberger may be deemed to share voting and dispositive power over
securities held by Wolfe.
PLAN OF DISTRIBUTION
We are registering the shares of common stock issued and issuable upon exerciseconversion of the warrantsSeries C Preferred and the Convertible Notes to permit the resale of these shares of common stock by the holders of the shares of common stock and the warrants from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders of the shares of common stock. We will bear all fees and expenses incident to our obligation to register the shares of common stock.
The selling stockholders may sell all or a portion of the shares of common stock beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of common stock are sold through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions or agent's commissions. The shares of common stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions,
* on any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of sale;
* in the over-the-counter market;
* in transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
* through the writing of options, whether such options are listed on an
options exchange or otherwise;
* ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
* block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
* purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
* an exchange distribution in accordance with the rules of the
applicable exchange;
* privately negotiated transactions;
* short sales;
* pursuant to Rule 144 under the Securities Act;
* broker-dealers may agree with the selling securityholders to sell a
specified number of such shares at a stipulated price per share;
* a combination of any such methods of sale; and
*
| · | on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; |
| · | in the over-the-counter market; |
| · | in transactions otherwise than on these exchanges or systems or in the over-the-counter market; |
| · | through the writing of options, whether such options are listed on an options exchange or otherwise; |
| · | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| · | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| · | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| · | an exchange distribution in accordance with the rules of the applicable exchange; |
| · | privately negotiated transactions; |
| · | pursuant to Rule 144 under the Securities Act; |
| · | broker-dealers may agree with the selling securityholders to sell a specified number of such shares at a stipulated price per share; |
| · | a combination of any such methods of sale; and |
· any other method permitted pursuant to applicable law.
5
If the selling stockholders effect such transactions by selling shares of common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in
5
excess of those customary in the types of transactions involved). In connection with sales of the shares of common stock or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of common stock in the course of hedging in positions they assume. The selling stockholders may also sell shares of common stock short and deliver shares of common stock covered by this prospectus to close out short positions. The selling stockholders may also loan or pledge shares of common stock to broker-dealers that in turn may sell such shares.
The selling stockholders may pledge or grant a security interest in some or all of the preferred shares, warrants or shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, as amended, amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
The selling stockholders and any broker-dealer participating in the distribution of the shares of common stock maywill be deemed to be "underwriters"“underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of common stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
6
There can be no assurance that any selling stockholder will sell any or all of the shares of common stock registered pursuant to the shelf registration statement, of which this prospectus forms a part.
The selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of common stock by the selling stockholders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making activities with respect to the shares of common stock. All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock.
We will paybear all expenses of the registration of the shares of common stock, pursuant to the registration rights agreement, estimated to be $9,000$30,632 in total, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or "blue sky" laws;
provided, however, that a selling stockholder will pay all underwriting
discounts and selling commissions, if any.fees. We will indemnify the selling stockholders against liabilities, including some liabilities under the Securities Act, in accordance with the registration rights agreements, or the selling stockholders will be entitled to contribution. We may be indemnified by the selling stockholders against civil liabilities, including liabilities under the Securities Act, that may arise from any written information furnished to us by the selling stockholder specifically for use in this prospectus, in
accordance with the related registration rights agreements, or we may be entitled to contribution.
Once sold under the shelf registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands of persons other than our affiliates.
6
LEGAL MATTERS
The validity of the issuance of the shares of our common stock described herein has been passed upon for us by Greenberg Traurig, LLP, New York, New York.
EXPERTS
Theconsolidated financial statements ofIntegrated BioPharma,Inc. appearing initsAnnual Report (Form 10-K) for the year endedJune 30, 2007have been audited byAmper, Politziner & Mattia, P.C.,independent registered public accounting firm, as set forth initsreport included therein, and incorporated herein by reference. Such consolidated financial statements have been incorporated herein by reference in reliance upon such report given on the authority of such firm asexpertsin accounting and auditing.
7
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC 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 instead of having to repeat the information in this prospectus. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act between the date of this prospectus and the termination of the offering and also between the date of the initial registration statement and prior to effectiveness of the registration statement:
| · | Our Annual Report on Form 10-K for the fiscal year ended June 30, 2007 filed on September 28, 2007; |
| · | Our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2007 filed on November 16, 2007; |
| · | Our Quarterly Report on Form 10-Q for the fiscal quarter ended December 31, 2007 filed on February 19, 2008; |
| · | Our Current Report on Form 8-K dated September 28, 2007 and filed on October 1, 2007; |
| · | Our Current Report on Form 8-K dated November 14, 2007 and filed on November 14, 2007; |
| · | Our Current Report on Form 8-K dated November 14, 2007 and filed on November 19, 2007; |
| · | Our Current Report on Form 8-K dated February 12, 2008 and filed on February 14, 2008; and |
| · | Our Current Report on Form 8-K dated February 21, 2008 and filed on February 22, 2008. |
This prospectus is part of a registration statement on Form S-3 we have filed with the SEC under the Securities Act. This prospectus does not contain all of the information in the registration statement. We have omitted certain parts of the registration statement, as permitted by the rules and regulations of the SEC. You may inspect and copy the registration statement, including exhibits, at the SEC’s public reference room or website. Our statements in this prospectus about the contents of any contract or other document are not necessarily complete. You should refer to the copy of each contract or other document we have filed as an exhibit to the registration statement for complete information.
8
You may request a copy of any or all of the information incorporated by reference, at no cost, by writing or telephoning us at the following address:
Integrated BioPharma, Inc.
225 Long Avenue
Hillside, NJ 07205
(888) 319-6962
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the
Securities Act of 1933 with respect to the shares of common stock offered by
this prospectus on Form S-3. This prospectus is a part of that registration
statement. The rulesfile annual, quarterly and regulations of the SEC allow us to omit some
information included in the registration statement from this document.
In addition, we filecurrent reports, proxy statements and other information with the SEC underSEC. You may read and copy any document we file at the Securities Exchange Act of 1934, as amended.SEC’s public reference room located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms.
room. Our filings with the SEC are also available to the public at the SEC’s website athttp://www.sec.gov.You may read and copy this information at the following locationalso obtain copies of the SEC:documents at prescribed rates by writing to the SEC’s Public Reference Section Room 1024
450 Fifthat 100 F Street, N.W.
Judiciary PlazaN.E., Washington, D.C. 20549
20549.Our website is located at www.ibiopharma.com.The SEC maintains an Internet site (http://www.sec.gov) that containscontents of our reports, proxy statements and other information about us and other companies
who file electronically with the SEC.
Our common stock is traded on the American Stock Exchange.
The SEC allows us to "incorporate by reference" information into this
document. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The
information incorporated by reference is considered to be awebsite are not part of this document, except for any information that is superseded by information that is
included directly in this document.
prospectus and should not be relied upon with respect thereto.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This document incorporates by referenceprospectus, including the documents listed below
that we have previously filed with the SEC since the end of our last fiscal
year. They contain important information about us and our financial
condition. Some of these filings have been amended by later filings, which are
also listed.
SEC FILINGS DESCRIPTION OR PERIOD/AS OF
Annual Report on Form 10-KSB Fiscal Year ended June 30, 2004 (filed
with the SEC on September 28, 2004 and
amended on November 10, 2004)
Quarterly Report on Form 10-QSB Period ended September 30, 2004 (filed
with the SEC on November 12, 2004)
Current Report on Form 8-K Dated October 12, 2004 relating to the
appointment of a new member of the
Science Advisory Board of one of our
subsidiaries (filed with the SEC on
October 12, 2004)
Current Report on Form 8-K Dated October 21, 2004 relating to an
agreement by one of our subsidiaries to
develop a flu vaccine (filed with the
SEC on October 22, 2004)
Current Report on Form 8-K Dated November 8, 2004 relating to the
adoption of a new charter of the Audit
Committee (filed with the SEC on
November 10, 2004)
Current Report on Form 8-K Dated November 12, 2004 relating to the
release of financial results (filed
with the SEC on November 15, 2004)
We incorporate by reference, additional documentscontains forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended. Any statements about our expectations, beliefs, plans, objectives, assumptions or future events or performance are not historical facts and may be forward-looking. These statements are often, but not always, made through the use of words or phrases such as “anticipate,” “estimate,” “plans,” “projects,” “continuing,” “ongoing,” “expects,” “management believes,” “we believe,” “we intend” and similar words or phrases. Accordingly, these statements involve estimates, assumptions and uncertainties which could cause actual results to differ materially from those expressed in them. Any forward-looking statements are qualified in their entirety by reference to the factors discussed in this prospectus or incorporated by reference.
Forward-looking statements are subject to known and unknown risks and uncertainties that could cause actual results to differ materially from those expected or implied by the forward-looking statements. Our actual results could differ materially from those anticipated in the forward-looking statements for many reasons, including the factors described in the reports referenced in the section entitled “Risk Factors” in this prospectus.
You should not unduly rely on these forward-looking statements, which speak only as of the date on which it is made. We undertake no obligation to publicly revise any forward-looking statement to reflect circumstances or events after the date of this prospectus or to reflect the occurrence of unanticipated events. You should, however, review the factors and risks we maydescribe in the reports we file from time to time with the SEC after the date of this document. These documents include periodicprospectus. The reports including Annual Reports on Form 10-KSB, Quarterly Reports on
Form 10-QSB and Current Reports on Form 8-K, as well as proxy statements.
We also incorporate by reference our Registration Statement on Form
8-A, filedwe file from time to time with the SEC on April 15, 2003,are available to the public over the Internet at the SEC’s website http://www.sec.gov as described under the heading “Where You Can Find More Information.”
9
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Delaware General Corporation Law
Under the General Corporation Law of the State of Delaware, we can indemnify our directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act. Our certificate of incorporation provides that, pursuant to whichDelaware law, our common stock
was registered under Section 12(b)directors shall not be liable for monetary damages for breach of the Securities Exchange Actdirectors’ fiduciary duty of 1934.
You can obtain anycare to us and our stockholders. This provision in the certificate of incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the documents incorporated by reference into this
document fromdirector’s duty of loyalty to us or our stockholders, for acts or omissions not in good faith or involving intentional misconduct or knowing violations of law, for any transaction from which the SEC throughdirector directly or indirectly derived an improper personal benefit, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director’s responsibilities under any other law, such as the SEC's web site atfederal securities laws or state or federal environmental laws.
Our bylaws provide for the address
provided above. You can also obtain documents incorporated by reference in this
document by requesting them in writing or by telephone from us at the following
addresses:
Integrated BioPharma, Inc.
225 Long Avenue
Hillside, New Jersey 07205
Attention: Eric Friedman
(973) 926-0816
7
If you request any incorporated documents from us, we will mail them to
you by first class mail, or another equally prompt means, within one business
day after we receive your request.
We have not authorized anyone to give any information or make any
representation about us that differs from, or addsindemnification of our directors and officers to the information in this
document or in our documents that are publicly filed with the SEC. Therefore, if
anyone does give you different or additional information, you should not rely on
it.
If you are in a jurisdiction where it is unlawful to offer to exchange
or sell, or to ask for offers to exchange or buy, the securities offeredfullest extent permitted by this
document or to ask for proxies, or if you are a person to whom it is unlawful to
direct these activities, then the offer presented by this document does not
extend to you.
The information contained in this document speaks only as of its date
unless the information specifically indicates that another date applies.
LEGAL MATTERS
Certain legal matters with respect to the validity of our common stock
will be passed upon for us by Greenberg Traurig, LLP, 200 Park Avenue, New York,
NY 10166.
EXPERTS
Our consolidated financial statements included in our June 30, 2004
Annual Report on Form 10-KSB as of June 30, 2004 and 2003, have been
incorporated by reference in this prospectus and in the registration statement
of which this prospectus is a part in reliance upon the report of Amper,
Politziner & Mattia, P.C., independent auditors, and upon the authority of
this firm as experts in accounting and auditing.
================================================================================
366,085 SHARES
INTEGRATED BIOPHARMA, INC.
COMMON STOCK
---------------
PROSPECTUS
---------------
___________, 2005
================================================================================
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by us in connection with the offering
described in this Registration Statement are as follows:
Registration fee.......................... $ 300
Legal fees and expenses................... 5,000
Accounting fees and expenses.............. 5,000
Printing and duplicating expenses......... 500
Miscellaneous expenses.................... 200
--------
Total..................................... $ 9,000
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law,Law. We are not, however, required to indemnify any director or the DGCL,
generally provides that all directors and officers (as well as other employees
and individuals) may be indemnified against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurredofficer in connection with certain specified actions, suitsany (a) willful misconduct, (b) willful neglect, or proceedings,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation -- a "derivative action"), if they acted
in good faith and in a manner they reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe their conduct was
unlawful. A similar standard of care is applicable in the case of derivative
actions, except that indemnification extends only to expenses (including
attorneys' fees) actually and reasonably incurred in connection with defense or
settlement of an action and the DGCL requires court approval before there can be
any indemnification where the person seeking indemnification has been found
liable to the corporation. Section 145 of the DGCL also provides that the rights
conferred thereby are not exclusive of any other right that any person may be
entitled to under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, and permits a corporation to advance expenses to(c) gross negligence toward or on behalf of us in the performance of his or her duties as a persondirector or officer. We are required to be indemnified uponadvance, prior to the final disposition of any proceeding, promptly on request, all expenses incurred by any director or officer in connection with that proceeding on receipt of anany undertaking by or on behalf of that director or officer to repay thethose amounts advanced if it isshould be determined that the person is not entitled to be
indemnified.
The registrant's certificate of incorporation and bylaws provide that
each person who was or is made a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the factultimately that he or she
is or was a director or officer of the registrant (or is or was serving at the
request of the registrant as a director or officer of another entity), shall be
indemnified and held harmless by the registrant against all expenses (including
attorneys' fees), judgments, fines and amounts paid or to be paid in settlement
actually and reasonably incurred or suffered by such person in connection
therewith, if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
registrant.
The certificate of incorporation and bylaws also provide that the
rights conferred thereby are contract rights, that they are not exclusive of any
other rights that an officer or director may have or hereafter acquire under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
and that they include the right to be paid by the registrant the expenses
incurred in defending any specified action, suit or proceeding in advance of its
final disposition provided that, if the DGCL so requires, such payment shall
only be made upon delivery to the registrant by the officer or director of an
undertaking to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under theour bylaws or otherwise.
ITEM 16. EXHIBITS.
5.1 Opinion of Greenberg Traurig, LLP
Commission Position on Indemnification
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to legality of securities being
offered. (1)
10.1 Asset Purchase Agreement, dated as of October 22, 2003, among
Integrated BioPharma, Inc., Aloe Commodities International, Inc.,our directors, officers and other parties listed therein. (2)
10.2 Registration Rights Agreement, dated as of October 22, 2003, between
Integrated BioPharma, Inc. and Aloe Commodities International, Inc. (2)
10.3 Settlement Agreement, dated as of December 20, 2004, between
Integrated BioPharma, Inc. and Wolfe Axelrod Weinberger Associates
LLC. (1)
10.4 Form of Warrant, issued on December 20, 2004 by Integrated
BioPharma, Inc. to Wolfe Axelrod Weinberger Associates LLC. (1)
10.5 Form of Warrant, issued on December 22, 2004 by Integrated BioPharma, Inc.
to Beaufort International Associates Limited, Friendly Capital, LLC and
Griffin Securities, Inc. (1)
23.1 Consent of Amper, Politziner & Mattia, P.C. (1)
23.2 Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1)
(1) Filed herewith.
(2) Incorporated by referenceor persons controlling the company pursuant to the exhibits to Registrant's Current
Report on Form 8-K dated October 22, 2003foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and filedis, therefore, unenforceable.
10
INTEGRATED BIOPHARMA, INC.
Common Stock
PROSPECTUS
_________, 2008
11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OtherExpenses of Distribution
The following table lists the costs and expenses payable by the registrant in connection with the sale of the common stock covered by this prospectus other than any sales commissions or discounts, which expenses will be paid by us. All amounts shown are estimates except the SEC registration fee.
SEC registration fee | $632 |
Legal fees and expenses
Accounting fees and expenses Miscellaneous fees and expenses | 25,000
5,000 0 |
Total | $30,632 |
Item 15. Indemnification of Directors and Officers
Under the General Corporation Law of the State of Delaware, we can indemnify our directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”). Our certificate of incorporation provides that, pursuant to Delaware law, our directors shall not be liable for monetary damages for breach of the directors’ fiduciary duty of care to us and our stockholders. This provision in the certificate of incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director’s duty of loyalty to us or our stockholders, for acts or omissions not in good faith or involving intentional misconduct or knowing violations of law, for any transaction from which the director directly or indirectly derived an improper personal benefit, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.
Our bylaws provide for the indemnification of our directors and officers to the fullest extent permitted by the Delaware General Corporation Law. We are not, however, required to indemnify any director or officer in connection with any (a) willful misconduct, (b) willful neglect, or (c) gross negligence toward or on November 6, 2003.
ITEMbehalf of us in the performance of his or her duties as a director or officer. We are required to advance, prior to the final disposition of any proceeding, promptly on request, all expenses incurred by any director or officer in connection with that proceeding on receipt of any undertaking by or on behalf of that director or officer to repay those amounts if it should be determined ultimately that he or she is not entitled to be indemnified under our bylaws or otherwise.
12
Item 16. | Exhibits |
Exhibit
Number | |
5.1 | Opinion of Greenberg Traurig, LLP, counsel to the registrant |
| |
23.1 | Consent of Independent Registered Public Accounting Firm |
| |
23.2 | Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1) |
| |
24.1 | Power of attorney (contained on signature page) |
Item 17. UNDERTAKINGS.Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post effectivepost-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
1933;
(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 thethis registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high andend of the estimated maximum offering range may be reflected onin the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation“Calculation of Registration Fee"Fee” table in the effective registration statement;
13
(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 thethis registration statement;
provided, however, that paragraph That: Paragraphs (a)(1)(i) and
, (a)(1)(ii) aboveand (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 as amended, that are incorporated by reference in the registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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,herein, and the offering of such securities at that time shall be deemed to be the initialbona fideoffering 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however,that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use:
14
(b) The undersigned registrant hereby further undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the registrant'sregistrant’s annual report pursuant to Sectionsection 13(a) or Sectionsection 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan'splan’s annual report pursuant to section 15(d) of the Securities Exchange Act)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,herein, 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, set forth in response to Item 15, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
I-2
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the cityCity of Hillside, State of New Jersey, on December 23, 2004.
INTEGRATED BIOPHARMA, INC.
By: /s/ E. Gerald Kay
----------------------
Title: Chairman, President and Chief
Executive Officer
this 21st day of March 2008.
| | INTEGRATED BIOPHARMA, INC. |
| | By: /s/ E. Gerald Kay |
| | E. Gerald Kay |
| | Chief Executive Officer |
| | (principal executive officer) |
| | By: /s/ Dina L. Masi |
| | Dina L. Masi |
| | Chief Financial Officer |
| | (principal accounting and financial officer) |
POWER OF ATTORNEY
We, the undersigned officers
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below constitutes and directors of Integrated BioPharma,
Inc., hereby severally constitute and appointappoints E. Gerald Kay and Eric FriedmanDina L. Masi and each or either of them, (with full power to each of them to act alone), ourhis true and lawful attorneys-in-factattorney-in-fact and agents,agent, with full power of substitution and resubstitution, for ushim and in ourhis name, place and stead, in any and all capacities, to sign any and all amendments (including pre-effectivepost-effective amendments or any abbreviated registration statement and post-effective amendments)any amendments thereto filed pursuant to Rule 462(b) increasing the number of securities for which registration is sought) to this Registration Statement, and all documents relating thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the U.S.
Securities and Exchange Commission, granting tounto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary or advisable to be done in and about the premises,connection therewith, as fullfully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all thethat said attorneys-in-fact and agents, or any of them, or their substitute or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
indicated
SIGNATURE TITLE DATE
/s/ /s/E. Gerald Kay | | Chairman President and Chief Executive Officer December 23, 2004
- -----------------------------------------------
| March 21, 2008 |
E. Gerald Kay (Principal | | (Principal Executive Officer)
/s/ Eric Friedman Vice President and | |
| | | |
/s/Dina L. Masi | | Chief Financial Officer (Principal December 23, 2004
- -----------------------------------------------
Eric Friedman | March 21, 2008 |
Dina L. Masi | | (Principal Accounting and Financial Officer)
/s/ | |
| | | |
/s/Carl DeSantis | | Director | March 21, 2008 |
Carl DeSantis | | | |
| | | |
/s/Riva Kay Sheppard | | Director December 23, 2004
- -----------------------------------------------
| March 21, 2008 |
Riva Kay Sheppard
/s/ | | | |
| | | |
/s/Christina Kay | | Director December 23, 2004
- -----------------------------------------------
| March 21, 2008 |
Christina Kay
/s/ Seymour Flug Director December 23, 2004
- -----------------------------------------------
Seymour Flug
/s/ | | | |
| | | |
/s/Robert B. Kay | | Director December 23, 2004
- -----------------------------------------------
| March 21, 2008 |
Robert B. Kay
/s/ | | | |
| | | |
/s/Robert Canarick | | Director | March 21, 2008 |
Robert Canarick | | | |
| | | |
| | Director | March 21, 2008 |
Zarko Kraljevic | | | |
| | | |
/s/Glenn Chang | | Director December 23, 2004
- -----------------------------------------------
| March 21, 2008 |
Glenn Chang
/s/ Zarko Kraljevic | | | |
| | | |
| | Director December 23, 2004
- -----------------------------------------------
Zarko Kraljevic
/s/ Robert Canarick Director December 23, 2004
- -----------------------------------------------
Robert Canarick
/s/ Carl DeSantis Director December 23, 2004
- -----------------------------------------------
Carl DeSantis
| March 21, 2008 |
Vidadi M. Yusibov | | | |
I-3
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EXHIBIT INDEX
ExhibitNumber | |
| |
5.1 | Opinion of Greenberg Traurig, LLP, counsel to the registrant |
| |
23.1 | Consent of Independent Registered Public Accounting Firm |
| |
23.2 | Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1) |
| |
24.1 | Power of attorney (contained on signature page) |