As filed with the Securities and Exchange Commission on August 13, 2003
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RELIV' INTERNATIONAL, INC.
(exact name of issuer as specified in its charter)
Delaware 37-1172197
(State of Incorporation) (IRS Employer I.D. No.)
136 Chesterfield Industrial Boulevard 63005
Chesterfield, Missouri 63005 (Zip Code)
(636) 537-9715
(Address and telephone number of Principal
Executive Offices)
RELIV' INTERNATIONAL, INC.
2003 STOCK OPTION PLAN
(Full title of the plan)
With copy to:
Scott P. Slykas
Robert L. Montgomery John M. Klimek
Chief Executive Officer Merrick & Klimek, P.C.
Reliv' International, Inc. 401 South LaSalle, Suite 1302
136 Chesterfield Industrial Boulevard Chicago, Illinois 60605
Chesterfield, Missouri 63005
(636) 537-9715
(name, address and telephone number of
agent for service of process)
CALCULATION OF REGISTRATION FEE
===========================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Amount of
to be Registered Registered(1) Share(2) Offering Price(3) Registration Fee
-----------------------------------------------------------------------------------------------------------
Common Stock;
$0.001 par value 1,000,000 shares $4.89 $4,890,000 $395.60
===========================================================================================================
(1) Represents the maximum number of shares of Common Stock to be issued by the
Company upon the exercise of options granted under the Reliv' International,
Inc. 2003 Stock Option Plan. In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the Reliv' International,
Inc. 2003 Stock Option Plan described herein.
(2) Represents the range of prices at which options issued under the Reliv
International, Inc. 2003 Stock Option Plan may be exercised to acquire shares of
the Company's Common Stock. Shares to be issued upon exercise of options not yet
granted under the 2003 Stock Option Plan will be issued at prices currently
undeterminable. Solely for the purpose of determining the registration fee
pursuant to Rule 457(h), the price of these shares is based on the closing price
of the Common Stock on the Nasdaq National Market on August 13, 2003 of $4.89.
(3) Represents the maximum aggregate offering price for shares of Common Stock
subject to issuance under the Stock Option Plan, calculated as follows: All
options remain unissued under the 2003 Stock Option Plan, and for purposes of
determining a registration fee, the closing price of $4.89 on August 7, 2003 was
assigned to these shares.
PART I
Pursuant to Part I of Form S-8, information required under Items 1 and 2 of Form
S-8 is omitted as part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents which have been filed with the Securities and
Exchange Commission are hereby incorporated by reference in this Registration
Statement:
1. The Annual Report on Form 10-K for the fiscal year ended December
31, 2002.
2. The Definitive Proxy Statement dated April 24, 2003, for the Annual
Meeting of Shareholders held on May 22, 2003.
3. The Form 10-Q for the quarterly period ended March 31, 2003.
4. The Form 10-Q for the quarterly period ended June 30, 2003.
5. The Annual Report on Form 11-K for the fiscal year ended December
31, 2002.
6. The description of the Company's capital stock as set forth in the
Registration Statement on Form 8-A (File No. 1-11768) filed by the
registrant with the Securities and Exchange Commission on February
25, 1993, including any amendment or report filed for the purpose of
updating such description.
In addition, all documents which are filed by the registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereby will be passed
upon for the registrant by Merrick & Klimek, P.C., 401 South LaSalle, Suite
1302, Chicago, Illinois 60605. Stephen M. Merrick, one of the principals in such
firm, is the Secretary and a Director of the registrant, and owns 675,483 shares
of the registrant's Common Stock as of the date of filing this Registration
Statement.
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Item 6. Indemnification of Directors and Officers.
As permitted by Delaware General Corporation Law ("DGCL"), the Company has
included in its Certificate of Incorporation a provision to eliminate the
personal liability of its directors for monetary damages for breach or alleged
breach of their fiduciary duties as directors, except for liability (i) for any
breach of director's duty of loyalty to the Company or its stockholders, (ii)
for acts or omissions not in good faith or which involved intentional misconduct
or a knowing violation of law, (iii) in respect of certain unlawful dividend
payments or stock redemptions or repurchases, as provided in Section 174 of the
DGCL, or (iv) for any transaction from which the director derived an improper
personal benefit. The effect of this provision in the Company's Certificate of
Incorporation is to eliminate the rights of the Company and its stockholders
(through stockholders' derivative suits on behalf of the Company) to recover
monetary damages against a director for breach of the fiduciary duty of care as
a director except in the situations described in (i) through (iv) above. This
provision does not limit nor eliminate the rights of the Company or any
stockholder to seek non-monetary relief such as an injunction or rescission in
the event of a breach of a director's duty of care. These provisions will not
alter the liability of directors under federal securities laws.
The Certificate of Incorporation and the by-laws of the Company provide
that the Company is required and permitted to indemnify its officers and
directors, employees and agents under certain circumstances. In addition, if
permitted by law, the Company is required to advance expenses to its officers
and directors as incurred in connection with proceedings against them in their
capacity as a director or officers for which they may be indemnified upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that such person is not
entitled to indemnification. At present, the Company is not aware of any pending
or threatened litigation or proceeding involving a director, officer, employee
or agent of the Company in which indemnification would be required or permitted.
In accordance with its agreement with the Representative, the Company has
obtained directors and officers liability insurance. The Company believes that
its charter provisions and indemnification agreements are necessary to attract
and retain qualified persons as directors and officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors and officers of the Company pursuant to the
foregoing provisions or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission ("Commission"), such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Exhibit
4 Reliv' International, Inc. 2003 Stock Option Plan.
5 Opinion of Merrick & Klimek, P.C.
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Exhibit No. Exhibit
23.1 Consent of Ernst & Young LLP, independent auditors of Reliv'
International, Inc.
23.2 The consent of Merrick & Klimek, P.C. is contained in their
opinion filed as Exhibit 5 hereto.
24 Power of attorney (included on signature page).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post- effective amendment to this registration statement to
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Chesterfield, State of Missouri, on August 13,
2003.
RELIV' INTERNATIONAL, INC.
By: /s/ Robert L. Montgomery
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Robert L. Montgomery, President, Chief
Executive Officer and Chairman
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the Committee
which administers the Reliv' International, Inc. 2003 Stock Option Plan has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chesterfield, State of
Missouri on August 13, 2003.
PLAN:
RELIV' INTERNATIONAL, INC.
2003 STOCK OPTION PLAN
By: /s/ Stephen M. Merrick
---------------------------------------
Stephen M. Merrick, Member of the
Compensation Committee
POWER OF ATTORNEY
The undersigned officers and directors of Reliv' International, Inc.
hereby constitute and appoint Robert L. Montgomery and Stephen M. Merrick, or
either of them, with power to act one without the other, our true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for us and in our stead, in any and all capacities to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and all documents relating thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing necessary or
advisable to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his or her substitutes,
may lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Robert L. Montgomery President, Chief Executive August 13, 2003
------------------------- Officer and Chairman of
Robert L. Montgomery the Board of Directors
/s/ Carl W. Hastings Vice President and August 13, 2003
------------------------------- Director
Carl W. Hastings
/s/ David G. Kreher Senior Vice President, August 13, 2003
------------------------------- Chief Operating Officer
David G. Kreher and Director
/s/ Stephen M. Merrick Senior Vice-President August 13, 2003
------------------------------- Secretary and Director
Stephen M. Merrick
/s/ Donald L. McCain Director August 13, 2003
-------------------------------
Donald L. McCain
/s/ Thomas W. Pinnock Director August 13, 2003
-------------------------------
Thomas W. Pinnock
/s/ John B. Akin Director August 13, 2003
-------------------------------
John B. Akin
/s/ Thomas T. Moody Director August 13, 2003
-------------------------------
Thomas T. Moody
/s/ Sandra S. Montgomery Director August 13, 2003
-------------------------------
Sandra S. Montgomery
/s/ Marvin W. Solomonson Director August 13, 2003
-------------------------------
Marvin W. Solomonson
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