-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IFgc6dMRXo4hjCJfmzhK5vxMLJneTXwcBGzt4iOTXm2LKsCknuDNXXCzNLWhKxIm DcMuJBDOKWygRzXUAsounQ== 0000950150-97-000501.txt : 19970407 0000950150-97-000501.hdr.sgml : 19970407 ACCESSION NUMBER: 0000950150-97-000501 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970404 EFFECTIVENESS DATE: 19970404 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: COSMETIC GROUP USA INC /CA/ CENTRAL INDEX KEY: 0000867028 STANDARD INDUSTRIAL CLASSIFICATION: PERFUMES, COSMETICS & OTHER TOILET PREPARATIONS [2844] IRS NUMBER: 954040591 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-24535 FILM NUMBER: 97574848 BUSINESS ADDRESS: STREET 1: 11312 PENROSE ST CITY: SUN VALLEY STATE: CA ZIP: 91352 BUSINESS PHONE: 8187672889 MAIL ADDRESS: STREET 1: 11312 PENROSE STREET CITY: SUN VALLEY STATE: CA ZIP: 91352 FORMER COMPANY: FORMER CONFORMED NAME: K7 CAPITAL CORP DATE OF NAME CHANGE: 19930328 S-8 1 FORM S-8 REGISTRATION STATEMENT 1 As filed with the Securities and Exchange Commission on April 5, 1997. Registration No. 333-__________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ___________________________________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ___________________________________________________ COSMETIC GROUP U.S.A., INC. (Exact name of registrant as specified in its charter) California 95-4040591 - ------------------------ --------------------------------- (State of Incorporation) (IRS Employer Identification No.) 11312 Penrose Street Sun Valley, California 91352 ------------------------------------------- (Address of principal executive offices) ______________________________________ Amended and Restated 1990 Stock Incentive Plan ______________________________________ ALFRED E. BOOTH, JR. Chief Executive Officer 11312 Penrose Street Sun Valley, California 91352 (818) 767-2889 (Name, address and telephone number of agent for service) _____________________________________ Copy to: William B. Barnett, Esq. Law Offices of William B. Barnett 15233 Ventura Boulevard, Suite 1110 Sherman Oaks, California 91403 (818) 789-2688 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, check the following [ X ] Total sequentially numbered pages in this document: 10 2
=============================================================================== CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------- Title of Proposed Proposed Amount Securities Amount Maximum Maximum of to be to be Price Per Offering Registration Registered Registered Share (1) Price Fee - ------------------------------------------------------------------------------- Common Stock, no par value 1,000,000 $3.00 $3,000,000 $ 990.00 ===============================================================================
(1) Estimated for the sole purpose of calculating the registration fee in accordance with Rule 457(h) under the Securities Act of 1933, as amended. 2 3 Explanatory Note This Registration Statement on Form S-8 relates to the registration of: a) 1,000,000 shares of Common Stock issuable upon the exercise of options granted and to be granted under the Company's Amended and Restated 1990 Stock Incentive Plan. All of the options set forth above are or will be exercisable at not less than the fair market value on date of grant. 3 4 PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS ITEM 1. PLAN OF INFORMATION The document(s) containing the information specified in Items 1 and 2 of Part I of Form S-8 will be sent or given to plan participants as specified in Rule 428(b)(1) and, in accordance with the instructions to Part I, are not filed with the Commission as part of this Registration Statement. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION The Company will furnish without charge to each person to whom a Section 10(a) Prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the documents incorporated herein by reference in Item 3 of Part II of this registration statement. Requests should be addressed to: Howard L. Simon, Corporate Secretary, Cosmetic Group U.S.A., Inc., 11312 Penrose Street, Sun Valley, California 91352, Telephone No. (818) 767-2889. 4 5 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE Incorporation by reference in this registration statement are the following documents and information previously filed with the Securities and Exchange Commission (the "Commission"): 1. Cosmetic Group U.S.A., Inc. (the "Company") Annual Report on Form 10-KSB for the year ended December 31, 1996, filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (File No. 0-19227). 2. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, 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 herein and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this registration statement except as so modified or replaced. 3. The description of the Company's Common Stock contained in its Registration Statement pursuant to Section 12 of the Exchange Act, as amended from time to time. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein modifies or replaced such statement. Any such statement shall not be deemed to constitute a part of this registration statement except as so modified or replaced. ITEM 4. DESCRIPTION OF SECURITIES - NOT APPLICABLE. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The legality of the shares of common stock to be issued pursuant to this registration will be passed upon by the Law Offices of William B. Barnett, Sherman Oaks, California. A total of approximately 37,100 options to acquire (less than one percent 5 6 of the total issued and outstanding shares of common stock) are beneficially owned by William B. Barnett, a director of the Company. Since 1991, Mr. Barnett's law firm has performed and continues to perform legal services for the Company. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 317 of the General Corporation Law of the State of California permits a corporation to 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 he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if he acted in good faith and in a manner he 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 his conduct was unlawful. A corporation also 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 or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation. However, in such an action by or on behalf of a corporation, no indemnification may be made in respect of any claim, issue or matter as to which the person is adjudged liable to the corporation unless and only to the extent that the court determines that, despite the adjudication of liability but in view of all the circumstances, the person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. In addition, the indemnification provided by Section 317 shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another 6 7 capacity while holding such office. Article V of the Company's Articles of Incorporation provides that the liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law. Article V also provides that the corporation is authorized to provide indemnification (as defined in Section 317 of the California Corporations Code) for breach of duty to the corporation and shareholders through bylaw provisions or through agreements with the agents, or both, in excess of the indemnification otherwise permitted by Section 317 of the California Corporations Code, subject to the limits on such excess indemnification set forth in Section 204 of the California Corporations Code. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED - NOT APPLICABLE. ITEM 8(A) EXHIBITS.
Exhibit No. Description ------- ----------- 5.1 Opinion of Law Offices of William B. Barnett, counsel to Company. 24.1 Consent of Law Offices of William B. Barnett is contained in Exhibit 5.1. 24.2 Consent of Ernst & Young LLP
ITEM 9. UNDERTAKINGS The undersigned registrant hereby undertakes: To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any additional or changed 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; That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and 7 8 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 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 Exchange Act) 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 bond fide offering thereof. 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 any 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. 8 9 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable ground to believe that it meets all of the requirements for filing on Form S-8 and has duly cause this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sun Valley, California on April 4, 1997. COSMETIC GROUP U.S.A., INC. By: /s/ Alfred E. Booth, Jr. --------------------------------- Alfred E. Booth, Jr. Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities set forth below.
Signature Title Date --------- ----- ---- /s/Alfred E. Booth Jr. Chief Executive Officer April 4, 1997 - ---------------------- and Director Alfred E. Booth, Jr. /s/Judith E. Zegarelli Vice President and April 4, 1997 - ---------------------- Director Judith E. Zegarelli /s/Howard L. Simon Secretary April 4, 1997 - ---------------------- Howard L. Simon /s/Jennifer J. Eggers Chief Financial Officer April 4, 1997 - ---------------------- and Assistant Secretary Jennifer J. Eggers /s/Frank X. McGarvey Vice President and April 4, 1997 - ---------------------- Director Frank X. McGarvey /s/Jack Brehm Director April 4, 1997 - ---------------------- Jack Brehm /s/William B. Barnett Director April 4, 1997 - ---------------------- William B. Barnett /s/Eric J. Nickerson Director April 4, 1997 - ---------------------- Eric J. Nickerson
9 10 INDEX TO EXHIBITS
Exhibit No. - ------- 5.1 Opinion of Law Offices of William B. Barnett, Counsel to Company. 24.1 Consent of Law Offices of William B. Barnett is contained in Exhibit 5.1. 24.2 Consent of Ernst & Young LLP
10 EX-5.1 2 OPINION OF LAW OFFICES OF WILLIAM B. BARNETT 1 EXHIBIT 5.1 April 4, 1997 Cosmetic Group U.S.A., Inc. 11312 Penrose Street Sun Valley, California 91352 Re: Registration Statement on Form S-8 Gentlemen: At your request, we have examined the form of the Registration Statement on Form S-8 relating to the Amended and Restated 1990 Stock Incentive Plan and the Non-Plan Stock Option Agreements to be filed with the Securities and Exchange Commission on or about April 2, 1997 (the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended, of One Million (1,000,000) shares of the Common Stock, no par value (the "Stock"), which have been and/or may be granted under the Amended and Restated 1990 Stock Incentive Plan to employees of Cosmetic Group U.S.A., Inc. (the "Company") not in connection, directly or indirectly, in any capital-raising transaction. In rendering the following opinion, we have examined and relied only upon the documents and certificates of officers and directors of the Company as are specifically described below. In our examination, we have assumed the genuineness of all signatures, the authenticity, accuracy and completeness of the documents submitted to us as originals, and the conformity with the original documents of all documents submitted to us as copies. Our examination was limited to the following documents and no others: 1. Articles of Incorporation of the Company, as amended to date. 2. By-Laws of the Company, as amended to date. 3. Resolutions adopted by the Board of Directors of the Company authorizing the issuance of 1,000,000 shares of the Stock under the Amended and Restated 1990 Stock Incentive Plan and the issuance of 676,376 shares of the Stock under Non-Plan Stock Option Agreements. 4. The Form S-8 Registration Statement. We have not undertaken, and do not intend to undertake, any independent investigation beyond such documents and records, or to 2 Cosmetic Group U.S.A., Inc. April 4, 1997 Page 2 verify the adequacy or accuracy of such documents and records. Based on the foregoing, it is our opinion that Stock to be issued, subject to effectiveness of the Registration Statement and compliance with applicable blue sky laws, when issued upon the completion of services rendered to the Company, will be duly and validly authorized, fully-paid and non-assessable. We express no opinion as to compliance with the securities or "blue sky" laws of any state in which the Stock is proposed to be offered and sold or as to the effect, if any, which noncompliance with such laws might have on the validity of issuance of the Stock. We hereby consent to the filing of this opinion as an exhibit to any filing made with the Securities and Exchange Commission or under any state or other jurisdictions' securities act for purposes of registering, qualifying or establishing eligibility for an exemption from registration or qualification of the Stock in connection with the offering described in the Registration Statement. Other than as provided in the preceding sentence, this opinion (i) is addressed solely to you; (ii) may not be relied upon by any other party; (iii) covers only matters of Delaware and Federal law, and nothing in this opinion shall be deemed to apply any pinion related to the laws of any other jurisdiction; (iv) may not be quoted or reproduced or delivered by you to any other person; and (v) may not be relied upon for any other purpose whatsoever. Nothing herein shall be deemed to relate to or constitute an opinion concerning any matters not specifically set forth above. By giving you this opinion and consent, we do not admit that we are an expert with respect to any part of the Registration Statement or Prospectus within the meaning of the term "expert" as used in Section 11 of the Securities Act of 1933, as amended, or the Rules and Regulations of the Securities and Exchange Commission promulgated thereunder. The information set forth herein is as of the date of this letter. We disclaim any undertaking to advise you of changes which may be brought to our attention after the effective date of the Registration Statement. LAW OFFICES OF WILLIAM B. BARNETT EX-24.2 3 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 24.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Cosmetic Group U.S.A., Inc. Amended and Restated 1990 Stock Incentive Plan and Non-Plan Stock Option Agreements of our report dated February 28, 1997, with respect to the consolidated financial statements of Cosmetic Group U.S.A., Inc. included in its Annual Report (Form 10-KSB) for the year ended December 31, 1996, filed with the Securities and Exchange Commission. Ernst & Young LLP Los Angeles, California April 4, 1997 -----END PRIVACY-ENHANCED MESSAGE-----