As filed with the Securities and Exchange Commission on June 28, 2007
Registration No. 333-
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under the Securities Act of 1933
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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.)
225 Long Avenue
Hillside, NJ 07205
(888) 319-6962
(Address, including zip code and telephone number, including area code,
of registrant's principal executive offices)
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E. Gerald Kay
Chief Executive Officer
Integrated BioPharma, Inc.
225 Long Avenue
Hillside, NJ 07205
(888) 319-6962
(Name, address, including zip code and telephone number,
including area code, of agent for service)
Copies to:
Andrew H. Abramowitz, Esq.
Greenberg Traurig, LLP
200 Park Avenue
New York, NY 10166
(212) 801-9200
-------------------
Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act 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 this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the
Securities Act, check the following box.
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 securities pursuant to Rule 413(b) under the
Securities Act, check the following box.
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Each Class of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share (1) Price (1) Registration Fee
---------------------------------------- ------------ ------------------ ------------------ ----------------
Common Stock, $0.002 par value per share 2,300,000 $5.37 $12,351,000 $379.18
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, based on the average
of the high and low sales prices of the common stock, as reported on the
NASDAQ Global Market on June 26, 2007.
-----------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JUNE 28, 2007
PROSPECTUS
2,300,000 shares
[LOGO OF INTEGRATED BIOPHARMA]
Integrated BioPharma, Inc.
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COMMON STOCK
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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. Each of the
selling stockholders named in this prospectus is an officer and/or director of
our company.
The methods of sale of the common stock offered by this prospectus are
described under the heading "Plan of Distribution" on page 3. We will receive
none of the proceeds from the sale of any of the common stock to which this
prospectus relates. See "Use of Proceeds and Expenses of the Offering" on page
2. The selling stockholders will reimburse us for 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 of Distribution" on page 3.
Our common stock is listed on the NASDAQ Global Market under the symbol
"INBP". On June 26, 2007, the last reported sale price of our common stock on
the NASDAQ Global Market was $5.24 per share.
You should read this prospectus carefully before you invest in any of
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 PROSPECTUS IS , 2007.
TABLE OF CONTENTS
THE COMPANY...................................................................2
RISK FACTORS..................................................................2
USE OF PROCEEDS AND EXPENSES OF THE OFFERING..................................2
SELLING STOCKHOLDERS..........................................................2
PLAN OF DISTRIBUTION..........................................................3
LEGAL MATTERS.................................................................5
EXPERTS.......................................................................5
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE.............................5
WHERE YOU CAN FIND MORE INFORMATION...........................................6
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS.............................7
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR
SECURITIES ACT LIABILITIES....................................................8
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; the manufacture
and distribution of Paclitaxel, which is the primary chemotherapeutic agent in
the 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 the United States. We were previously
known as Integrated Health Technologies, Inc. and, prior to that, as Chem
International, Inc. We were reincorporated in our 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.
Our principal executive offices are located at 225 Long Avenue,
Hillside, New Jersey 07205, and our telephone number is (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.
RISK FACTORS
You should carefully consider the specific risks set forth under the
caption "Risk Factors" in any of our filings with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 incorporated by
reference herein before making an investment decision. For more information, see
"Where You 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. The selling stockholders will reimburse us
for the fees, costs and expenses of this offering, which are estimated to be
$31,000, inclusive of our registration fees, legal and accounting fees,
printing costs and other miscellaneous fees and expenses.
SELLING STOCKHOLDERS
The following table sets forth, in the first column, the names of the
selling stockholders and the number of shares being registered for sale as of
the date of the prospectus and sets forth, in the second column, the number of
shares of common stock known by us to be beneficially owned by each of the
selling stockholders as of June 25, 2007. 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. 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 of Distribution."
BENEFICIAL OWNERSHIP
BENEFICIAL SHARES AFTER THIS OFFERING (2)
OWNERSHIP REGISTERED -----------------------------
PRIOR TO THIS IN THIS NUMBER OF PERCENT
NAME OFFERING (1) OFFERING SHARES (3)
-------------------------------------------------------------------------------------------------------
E. Gerald Kay (4) 5,708,556 675,000 5,033,556 33.1%
Carl DeSantis (5) 2,360,417 600,000 1,760,417 12.5%
Riva Sheppard (6) 1,219,467 250,000 969,467 6.7%
Christina Kay (7) 1,219,467 250,000 969,467 6.7%
Seymour Flug (8) 1,217,033 250,000 967,033 6.5%
2
BENEFICIAL OWNERSHIP
BENEFICIAL SHARES AFTER THIS OFFERING (2)
OWNERSHIP REGISTERED -----------------------------
PRIOR TO THIS IN THIS NUMBER OF PERCENT
NAME OFFERING (1) OFFERING SHARES (3)
-------------------------------------------------------------------------------------------------------
Robert B. Kay (9) 1,219,629 250,000 969,629 6.8%
Robert Canarick (10) 188,533 25,000 163,533 1.2%
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Selling Stockholders Total 2,300,000
==========
(1) Beneficial ownership as of June 25, 2007, for all selling stockholders
based upon information provided by the selling stockholders known to us.
(2) Assumes the sale of all shares of common stock registered pursuant to this
prospectus, although the selling stockholders are under no obligation known
to us to sell any shares of common stock at this time.
(3) Based on 13,850,747 shares of common stock outstanding on June 25, 2007.
The shares issuable under stock options, warrants and other derivative
securities to acquire our common stock that are currently exercisable or
convertible within 60 days after June 25, 2007, are treated as if
outstanding for computing the percentage ownership of the person holding
these securities, but are not treated as outstanding for purposes of
computing the percentage ownership of any other person. Unless otherwise
indicated, also includes shares owned by a spouse, minor children, by
relatives sharing the same home, and entities owned or controlled by the
named person.
(4) Mr. Kay is the Chairman of our Board of Directors and serves as our Chief
Executive Officer.
(5) Mr. DeSantis is a member of our Board of Directors.
(6) Ms. Sheppard is a member of our Board of Directors and serves as our
Executive Vice President.
(7) Ms. Kay is a member of our Board of Directors and serves as our Executive
Vice President.
(8) Mr. Flug is a member of our Board of Directors and previously served as our
President.
(9) Mr. Kay is a member of our Board of Directors and serves as Chairman of our
InB:Paxis Pharmaceuticals, Inc. subsidiary.
(10) Mr. Canarick is a member of our Board of Directors.
PLAN OF DISTRIBUTION
We are registering the shares of common stock to permit the resale of
these shares of common stock by the holders of the shares of common stock 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. The selling stockholders will reimburse us for 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,
3
o on any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of sale;
o in the over-the-counter market;
o in transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
o through the writing of options, whether such options are listed on an
options exchange or otherwise;
o ordinary brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
o 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;
o purchases by a broker-dealer as principal and resale by the broker-dealer
for its account;
o an exchange distribution in accordance with the rules of the applicable
exchange;
o privately negotiated transactions;
o short sales;
o pursuant to Rule 144 under the Securities Act;
o broker-dealers may agree with the selling securityholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
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
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 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 will be deemed to be "underwriters"
within the meaning of the Securities Act, and any
4
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.
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.
The selling stockholders will reimburse us for all expenses of the
registration of the shares of common stock, estimated to be $31,000 in total,
including, without limitation, Securities and Exchange Commission filing fees.
We will indemnify the selling stockholders against liabilities, including some
liabilities under the Securities Act, 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, 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.
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
The financial statements of Integrated BioPharma, Inc. appearing in its
Annual Report (Form 10-K) for the year ended June 30, 2006 have been audited by
Amper, Politziner & Mattia, P.C., independent registered public accounting firm,
as set forth in its reports thereon included therein, and incorporated herein by
reference. Such financial statements have been incorporated herein by reference
in reliance upon such reports given on the authority of such firm as an expert
in accounting and auditing.
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
5
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:
o Our Annual Report on Form 10-K for the fiscal year ended June 30, 2006
filed on September 28, 2006;
o Our Quarterly Report on Form 10-Q for the fiscal quarter ended September
30, 2006 filed on November 13, 2006;
o Our Quarterly Report on Form 10-Q for the fiscal quarter ended December 31,
2006 filed on February 14, 2007;
o Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2007 filed on May 9, 2007;
o Our Current Report on Form 8-K dated October 13, 2006 and filed on October
19, 2006;
o Our Current Report on Form 8-K dated November 7, 2006 and filed on November
7, 2006;
o Our Current Report on Form 8-K dated January 24, 2007 and filed on January
24, 2007;
o Our Current Report on Form 8-K dated February 5, 2007 and filed on February
5, 2007;
o Our Current Report on Form 8-K dated March 5, 2007 and filed on March 9,
2007;
o Our Current Report on Form 8-K dated April 3, 2007 and filed on April 9,
2007;
o Our Current Report on Form 8-K dated April 26, 2007 and filed on April 26,
2007; and
o Our Registration Statement on Form 8-A filed on February 5, 2007.
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.
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 file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the 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
6
reference room. Our filings with the SEC are also available to the public
at the SEC's website at http://www.sec.gov. You may also obtain copies of the
documents at prescribed rates by writing to the SEC's Public Reference Section
at 100 F Street, N.E., Washington, D.C. 20549. Our website is located at
www.ibiopharma.com. The contents of our website are not part of this prospectus
and should not be relied upon with respect thereto.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by
reference, contains 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 describe in the
reports we file from time to time with the SEC after the date of this
prospectus. The reports we file from time to time with the SEC 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."
7
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 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 behalf 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.
COMMISSION POSITION ON INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and or persons controlling the
company pursuant to the foregoing 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 is, therefore, unenforceable.
8
[LOGO OF INTEGRATED BIOPHARMA]
INTEGRATED BIOPHARMA, INC.
COMMON STOCK
-----------------------------------
PROSPECTUS
-----------------------------------
___________, 2007
-----------------------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES 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 $379
Legal fees and expenses 25,000
Accounting fees and expenses 5,000
Miscellaneous fees and expenses 621
Total $31,000
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 behalf 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.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER
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5.1 Opinion of Greenberg Traurig, LLP, counsel to the registrant
23.1 Consent of Amper, Politziner & Mattia, P.C.
23.2 Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1)
24.1 Power of attorney (contained on signature page)
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant, hereby undertakes:
(1) 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.
(2) 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.
(3) That for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(a) Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the
registration statement, and
(b) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii) or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new effective
date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. 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 effective date,
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 effective date
(4) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(a) Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to
Rule 424;
(b) Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(c) The portion of any other free writing prospectus relating to
the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(d) Any other communication that is an offer in the offering made
by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
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 City of Hillside, State of New Jersey, on this 27th day of
June 2007.
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
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature
appears below constitutes and appoints E. Gerald Kay and Dina L. Masi and each
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments or any abbreviated registration statement and any
amendments thereto filed pursuant to Rule 462(b) increasing the number of
securities for which registration is sought) to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto 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 to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their 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
/s/ E. Gerald Kay Chairman and Chief Executive June 28, 2007
------------------------ Officer (Principal Executive
E. Gerald Kay Officer)
/s/ Dina L. Masi Chief Financial Officer June 28, 2007
------------------------ (Principal Accounting and
Dina L. Masi Financial Officer)
/s/ Carl DeSantis Director June 28, 2007
------------------------
Carl DeSantis
/s/ Riva Sheppard Director June 28, 2007
------------------------
Riva Sheppard
/s/ Christina Kay Director June 28, 2007
------------------------
Christina Kay
/s/ Seymour Flug Director June 28, 2007
------------------------
Seymour Flug
/s/ Robert B. Kay Director June 28, 2007
------------------------
Robert B. Kay
/s/ Robert Canarick Director June 28, 2007
------------------------
Robert Canarick
/s/ Zarko Kraljevic Director June 28, 2007
------------------------
Zarko Kraljevic
/s/ Glenn Chang Director June 28, 2007
------------------------
Glenn Chang
/s/ Vidadi M. Yusibov Director June 28, 2007
------------------------
Vidadi M. Yusibov
EXHIBIT INDEX
Exhibit
Number
-------
5.1 Opinion of Greenberg Traurig, LLP, counsel to the registrant
23.1 Consent of Amper, Politziner & Mattia, P.C.
23.2 Consent of Greenberg Traurig, LLP (contained in Exhibit 5.1)
24.1 Power of attorney (contained on signature page)