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As filed with the Securities and Exchange Commission on December 28, 1999
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Registration No. 333-__________
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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PERFUMANIA.COM, INC.
(Exact name of Registrant as specified in its charter)
FLORIDA 65-0884688
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
11701 NW 101ST ROAD
MIAMI, FLORIDA 33178
(Address of principal executive offices)
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1999 INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
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RACHMIL LEKACH
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
PERFUMANIA.COM, INC.
11701 NW 101ST ROAD
MIAMI, FLORIDA 33178
(305) 889-1600
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
JEFFREY R. HOULE, ESQ.
GREENBERG TRAURIG
1750 TYSONS BOULEVARD, SUITE 1200
MCLEAN, VIRGINIA 22102
(703) 749-1300
(703)749-1301 (FAX)
Calculation Of Registration Fee
<TABLE>
<CAPTION>
- ------------------------ --------------------------- -------------------------- -------------------------- ------------------------
Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Registered Offering Price Per Share Aggregate Offering Price Amount of Registration
be Registered (1) (2) (2) Fee (2)
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<S> <C> <C> <C> <C>
Common Stock, par 1,000,000 shares $12.375 $12,375,000 $3,267
value $.01 per share
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</TABLE>
(1) In accordance with Rule 416, this Registration Statement also covers such
number of shares as may become issuable by reason of the anti-dilution
provisions of the Plan.
(2) Estimated solely for purposes of calculating the registration fee, in
accordance with Rule 457(c) and (h), based on the average of the high and
low prices reported in the consolidated reporting system on December 20,
1999.
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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 herein by reference:
(a) The Registrant's prospectus, filed with the Securities and Exchange
Commission on September 30, 1999, under Rule 424(b), Commission file number
333-80059.
(b) All reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 ("Exchange Act") since the end of
the period covered by the audited financial statements contained in the Rule
424(b) prospectus referred to above.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 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
incorporated by reference in this Registration Statement and to be part hereof
from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Articles of Incorporation and
Bylaws provide that the Registrant shall indemnify any person who was, is or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, any appeal of any of the foregoing and any inquiry or
investigation that could lead to any of the foregoing (collectively, the
"Proceeding"), by reason of the fact that he is or was (i) a director of the
Registrant or (ii) any other person designated by and serving at the request of
the Registrant's board of directors (the "Board") as a director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary
of another corporation, employee benefit plan or other entity, as well as
officers, employees and agents of the Registrant (which collectively constitute
the "Indemnified Party").
Generally, in order to be indemnified, the Indemnified Party must be
successful in defending the Proceeding on the merits and must satisfy specified
standards of conduct in connection with the matters giving rise to the
Proceeding in question. The determination of whether an Indemnified Party meets
the specified standards of conduct and thus is eligible for indemnification is
made persons who are not named defendants nor respondents in the Proceeding and
who are either (i) a quorum of the Registrant's disinterested directors, or (ii)
special legal counsel selected by the Board or (iii) the Registrant's
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shareholders. The indemnification, to the extent permitted by law, may be for
reasonable expenses incurred by the Indemnified Party in connection with the
Proceeding including court costs and attorneys' fees through appeal, judgments,
penalties, fines, and settlements. If the Indemnified Party meets the standards
of conduct but is found liable to the Registrant or is found liable on the basis
that said person improperly received a personal benefit, then only actual,
reasonable expenses incurred in connection with the Proceeding shall be
indemnified. No indemnification is available to a person found liable for
willful or intentional misconduct in the performance of said person's duty to
the Registrant.
Florida law permits the Registrant to provide indemnification to its
officers, directors, employees and agents subject to certain limitations.
Florida law also permits indemnification in connection with a proceeding brought
by or in the right of the Registrant to procure a judgment in its favor. Insofar
as indemnification (pursuant to the foregoing provisions) for liabilities
arising in connection with actions by the Commission against the Registrant's
directors and officers, or persons controlling the Registrant, the Registrant
has been informed that, in the opinion of the 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.
5.1 Opinion of Greenberg Traurig, counsel to the Company, as to
certain legal matters in connection with the shares of Common
Stock being registered.
23.1 Consent of Greenberg Traurig (included in its opinion filed as
Exhibit 5.1 hereto).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included on signature page of this
Registration Statement).
ITEM 9. UNDERTAKINGS.
1. The undersigned 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:
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(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this 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
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 this
Registration Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii)
above will not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this Registration Statement.
(b) That, for the purpose of determining any liability under
the Securities Act, 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.
(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.
2. The undersigned Registrant hereby further 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 this 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.
3. 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 provisions described under Item 6 above, 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
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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.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, perfumania.com inc., a corporation organized under the laws of the
State of Florida, 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 Miami, State of Florida, on the 28th day of
December, 1999.
perfumania.com inc.
By: /s/ RACHMIL LEKACH
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Rachmil Lekach
Chairman of the Board of Directors and
Principal Executive Officer
By: /s/ MICHAEL AMIDEO
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Michael Amideo
Principal Financial and Accounting
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Jeffrey R. Houle 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, without limitation,
post-effective amendments) 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 attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, 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 their
capacities and on the dates indicated.
SIGNATURE AND CAPACITY DATE
/s/ RACHMIL LEKACH December 28, 1999
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Rachmil Lekach, Director
/s/ ILIA LEKACH December 28, 1999
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Ilia Lekach, Director
/s/ MICHAEL AMIDEO December 28, 1999
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Michael Amideo, Director
/s/ DANIEL SAWICKI December 28, 1999
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Daniel Sawicki, Director
/s/ DANIEL MANELLA December 28, 1999
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Daniel Manella, Director
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EXHIBIT 5.1
GREENBERG TRAURIG
1750 Tysons Boulevard
Suite 1200
McLean, Virginia 22102
December 27, 1999
perfumania.com inc.
11701 NW 101st Road
Miami, Florida 33178
Re: perfumania.com inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We are rendering this opinion in connection with the registration by
perfumania.com inc., a Florida corporation (the "Company"), of 1,000,000 shares
(the "Shares") of its common stock, par value $.01 per share, under the
Securities Act of 1933, as amended, (the "Act") pursuant to the above-referenced
Registration Statement (the "Registration Statement"). The Shares are reserved
for issuance upon the exercise of options granted or to be granted under the
Company's 1999 Incentive Stock Option Plan.
We have examined a copy of the Registration Statement, the 1999
Incentive Stock Option Plan, as amended, the Amended and Restated Articles of
Incorporation of the Company, and all amendments thereto, certified by the
Secretary of State of Florida, and are familiar with the records of the
Company's corporate proceedings as reflected in its minute books.
Based on the foregoing, and upon such further investigation as we have
deemed relevant, we are of the opinion that:
(a) The Company has been duly incorporated under the laws of
the State of Florida.
(b) The Shares, when issued in accordance with the terms of
the 1999 Incentive Stock Option Plan, including payment of the applicable
purchase price, will be duly authorized, validly issued, fully paid and
nonassessable.
The opinions expressed herein are limited to questions arising under
the laws of the State of Florida and the federal law of the United States, and
we disclaim any opinion whatsoever with respect to matters governed by the laws
of any other jurisdiction.
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We consent to the filing of this opinion as an exhibit to the
Registration Statement relating to the Shares and to the use of our name
wherever appearing in the Registration Statement and any amendment thereto. In
giving this consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Act, or the Rules and
Regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ GREENBERG TRAURIG
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EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated May 14, 1999, except for
Note 8 as to which the date is July 14, 1999, relating to the financial
statements of perfumania.com, inc., which appears in perfumania.com, inc.'s
prospectus under rule 424(B)(1) (No. 333-80059) filed with the Securities and
Exchange Commission on September 30, 1999.
/s/ PricewaterhouseCoopers LLP
Miami, Florida
December 24, 1999
