Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8 REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INVERNESS MEDICAL INNOVATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 04-3565120
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STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
51 SAWYER ROAD, SUITE 200, WALTHAM, MASSACHUSETTS 02453
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
IVC INDUSTRIES, INC. 1995 STOCK OPTION PLAN
IVC INDUSTRIES, INC. NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
INVERNESS MEDICAL INNOVATIONS, INC. NON-QUALIFIED STOCK OPTION AGREEMENT
FOR E. JOSEPH EDELL
(FULL TITLE OF THE PLANS)
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RON ZWANZIGER
President
Inverness Medical Innovations, Inc.
51 Sawyer Road, Suite 200
Waltham, Massachusetts 02453
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(781) 647-3900
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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WITH COPIES TO:
John D. Patterson, Jr., Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
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CALCULATION OF REGISTRATION FEE
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PROPOSED
TITLE OF PROPOSED MAXIMUM
SECURITIES AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE PRICE FEE
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Common Stock 52,140 shares(1) $3.79(2) $197,610.60
($.001 par value)
Common Stock 13,604 shares(3) $3.95(2) $53,735.80
($.001 par value)
Common Stock 50,000 shares(4) $6.10(2) $305,000.00
($.001 par value)
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TOTAL 115,744 $556,346.40 $51.18
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(1) Represents shares of Inverness Medical Innovations, Inc. common stock
issuable upon exercise of outstanding stock options granted pursuant to the IVC
Industries, Inc. 1995 Stock Option Plan.
(2) Calculated pursuant to Rule 457(h) under the Securities Act.
(3) Represents shares of Inverness Medical Innovations, Inc. common stock
issuable upon exercise of outstanding stock options granted pursuant to the IVC
Industries, Inc. Non-Employee Directors' Stock Option Plan.
(4) Represents shares of Inverness Medical Innovations, Inc. common stock
issuable upon exercise of outstanding stock options granted pursuant to the
Inverness Medical Innovations, Inc. Non-Qualified Stock Option Agreement for E.
Joseph Edell dated March 19, 2002.
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PART I
INFORMATION REQUIRED IN THE 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"),
and the Introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated in this registration statement by reference:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, filed with the Commission on April 1, 2002;
(b) the Company's Amended Annual Report on Form 10-K/A for the fiscal
year ended December 31, 2001, filed with the Commission on April 2, 2002;
(c) the Company's Current Report on Form 8-K filed with the Commission on
January 4, 2002;
(d) the Company's Current Report on Form 8-K/A filed with the Commission
on March 5, 2002;
(e) the Company's Current Report on Form 8-K filed with the Commission on
March 14, 2002;
(f) the Company's Current Report on Form 8-K filed with the Commission on
March 29, 2002; and
(g) the description of the Company's common stock contained in its
Registration Statement on Form 8-A filed with the Commission on November 21,
2001, as amended, under Section 12 of the Securities Exchange Act of
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1934, as amended (the "Exchange Act") and any amendments or reports filed for
the purpose of updating such description.
In addition, all documents subsequently filed with the Commission by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment hereto 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 securities registered hereby is being passed upon for
the Company by Foley, Hoag & Eliot LLP, Boston, Massachusetts.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is 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, other than
an action by or in the right of the corporation, by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation or is
or was serving at the corporation's request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with the action, suit or proceeding if the person acted in good faith
and in a manner the person 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 the person's conduct was
unlawful. The power to indemnify applies to actions brought by or in the right
of the corporation as well, but only to the extent of expenses, including
attorneys' fees but excluding judgments, fines and amounts paid in settlement,
actually and reasonably incurred by the person in connection with the defense or
settlement of the action or suit. And with the further limitation that in these
actions, no indemnification shall be made in the event of any adjudication of
negligence or misconduct in the performance of the person's duties to the
corporation, unless a court believes that in light of all the circumstances
indemnification should apply.
Article V of the Company's by-laws provides that the Company shall, to
the extent legally permitted, indemnify each person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that such person is or was, or has
agreed to become, a director or officer of the Company, or is or was serving, or
has agreed to serve, at the request of the Company, as a director, officer,
trustee, partner, employee or agent of, or in a similar capacity with, another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise. The indemnification provided for in Article V is expressly not
exclusive of any other rights to which those seeking indemnification may be
entitled under any law, agreement or vote of stockholders or disinterested
directors or otherwise, and shall inure to the benefit of the heirs, executors
and administrators of such persons.
Section 145(g) of the Delaware General Corporation Law and Article V of
the by-laws of the Company provide that the Company shall have the power to
purchase and maintain insurance on behalf of its officers, directors, employees
and agents, against any liability asserted against and incurred by such persons
in any such capacity.
The Company has obtained insurance covering its directors and officers
against losses and insuring the Company against certain of its obligations to
indemnify its directors and officers.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a corporation may eliminate or limit the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, provided that such provisions shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under section 174 of the General Corporation Law
of the State of Delaware regarding the unlawful payment of dividends,
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or (iv) for any transaction from which the director derived an improper personal
benefit. No such provision shall eliminate or limit the liability of a director
for any act or omission occurring prior to the date when such provision becomes
effective.
Pursuant to the Delaware General Corporation Law, Article VII of the
certificate of incorporation of the Company eliminates a director's personal
liability for monetary damages to the Company and its stockholders for breach of
fiduciary duty as a director, except in circumstances involving a breach of the
director's duty of loyalty to the Company or its stockholders, acts or omissions
not in good faith, intentional misconduct, knowing violations of the law,
self-dealing or the unlawful payment of dividends or repurchase of stock.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation of the Company (filed
as Exhibit 3.1 to the Company's registration statement on Form S-4, as
amended, File Number 333-67392, and incorporated herein by reference).
4.2 Certificate of Designation, Preferences and Rights of Series A
Convertible Preferred Stock of Inverness Medical Innovations, Inc.
(filed as Exhibit 99.2 to the Company's Current Report on Form 8-K
filed with the Commission on January 4, 2002, and incorporated herein
by reference).
4.3 Amended and Restated By-Laws of the Company (filed as Exhibit 3.2 to
the Company's registration statement on Form S-4, as amended, File
Number 333-67392, and incorporated herein by reference).
4.4 IVC Industries, Inc. 1995 Stock Option Plan, as amended.
4.5 IVC Industries, Inc. Non-Employee Directors' Stock Option Plan, as
amended.
4.6 Inverness Medical Innovations, Inc. Non-Qualified Stock Option
Agreement for E. Joseph Edell dated March 19, 2002.
5.1 Opinion of Foley, Hoag & Eliot LLP.
23.1 Consent of Arthur Andersen LLP, Independent Accountants.
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (contained on the signature page hereto).
ITEM 9. UNDERTAKINGS.
The registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-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 (the "Securities Act");
(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 the registration statement.
Notwithstanding the foregoing, any increase or decrease in 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 end of the estimated maximum
offering range may be reflected in 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
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maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(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 the registration statement;
Provided, however, that paragraphs(a)(1)(i) and (a)(1)(ii) do not apply if 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 15(d) of the Exchange Act
that are incorporated by reference in the registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment will 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) 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement will be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time will be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act 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 Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the 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 and will be governed by the final
adjudication of such issue.
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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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Waltham, Commonwealth of Massachusetts, on this 2nd
day of April, 2002.
INVERNESS MEDICAL INNOVATIONS, INC.
By: /S/ RON ZWANZIGER
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Ron Zwanziger
President
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Duane L. James and Ron Zwanziger, and
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits thereto,
and all 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 which
they, or any of them, may deem necessary or advisable to be done in connection
with this registration statement, 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 any substitute or substitutes
for any or all of them, 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.
SIGNATURE TITLE DATE
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/S/ RON ZWANZIGER
------------------------------------ Chairman of the Board,
Ron Zwanziger President and Chief Executive Officer April 2, 2002
(principal executive officer)
/S/ DUANE L. JAMES
------------------------------------ Vice President of Finance and Treasurer
Duane L. James (principal financial and accounting officer) April 2, 2002
/S/ DAVID SCOTT, PH.D.
------------------------------------ Director April 2, 2002
David Scott, Ph.D.
/S/ ERNEST A. CARABILLO, JR.
------------------------------------ Director April 2, 2002
Ernest A. Carabillo, Jr.
/S/ CAROL R. GOLDBERG
------------------------------------ Director April 2, 2002
Carol R. Goldberg
/S/ ROBERT P. KHEDERIAN
------------------------------------ Director April 2, 2002
Robert P. Khederian
/S/ JOHN F. LEVY
------------------------------------ Director April 2, 2002
John F. Levy
/S/ PETER TOWNSEND
------------------------------------ Director April 2, 2002
Peter Townsend
------------------------------------ Director
Alfred M. Zeien
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EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation of the Company (filed
as Exhibit 3.1 to the Company's registration statement on Form S-4, as
amended, File Number 333-67392, and incorporated herein by reference).
4.2 Certificate of Designation, Preferences and Rights of Series A
Convertible Preferred Stock of Inverness Medical Innovations, Inc.
(filed as Exhibit 99.2 to the Company's Current Report on Form 8-K
filed with the Commission on January 4, 2002, and incorporated herein
by reference).
4.3 Amended and Restated By-Laws of the Company (filed as Exhibit 3.2 to
the Company's registration statement on Form S-4, as amended, File
Number 333-67392, and incorporated herein by reference).
4.4 IVC Industries, Inc. 1995 Stock Option Plan, as amended.
4.5 IVC Industries, Inc. Non-Employee Directors' Stock Option Plan, as
amended.
4.6 Inverness Medical Innovations, Inc. Non-Qualified Stock Option
Agreement for E. Joseph Edell dated March 19, 2002.
5.1 Opinion of Foley, Hoag & Eliot LLP.
23.1 Consent of Arthur Andersen LLP, Independent Accountants.
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (contained on the signature page hereto).
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