As filed with the Securities and Exchange Commission on May 9, 2000
Registration No. 333-________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ALLOU HEALTH & BEAUTY CARE, INC.
--------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 11-2953972
-------- --------------
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
50 EMJAY BOULEVARD
BRENTWOOD, NY 11717
(516) 273-4000
---------------------------------------------------------------
(Address, including zip code, and telephone number,
Including area code, of registrant's principal executive offices)
VICTOR JACOBS
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
50 EMJAY BOULEVARD
BRENTWOOD, NY 11717
(516) 273-4000
---------------------------------------------------------------
(Name, address, including zip code, and telephone number,
Including area code, of agent for service)
Copy to:
Henry I. Rothman, Esq.
Parker Chapin LLP
405 Lexington Avenue
New York, New York 10174
(212) 704-6000
----------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities 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. |_|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, 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, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_| __________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------- ---------------- --------------------- ----------------------- -------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) PRICE FEE
- -------------------------------------- ---------------- --------------------- ----------------------- -------------
<S> <C> <C> <C> <C>
Class A Common Stock, $.001 par
value per share................. 75,472 $7.44 $561,511.68 $148.23
- -----------------------------------------------------------------------------------------------------------------------
Total Registration Fee.. $148.23
=======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, as amended (the
"Securities Act"); based on the average bid and ask prices on the
American Stock Exchange on May 5, 2000.
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE. 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 NOR IS
IT SEEKING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE
IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MAY 9, 2000
PROSPECTUS
ALLOU HEALTH & BEAUTY CARE, INC.
A certain Stockholder of Allou Health & Beauty Care, Inc. is selling
75,472 Shares of Class A Common Stock of the Company under this Prospectus, all
of which are issued and outstanding. We issued the Shares covered by this
Prospectus to the Selling Stockholder in January 2000 as part of the purchase
price under an Asset Purchase Agreement.
The Selling Stockholder may offer its Shares of the Company on any
stock exchange, market or trading facility on which the Shares are traded or in
private transactions. These sales may be at fixed or negotiated prices.
The Selling Stockholders will receive all net proceeds from the sale of
the Shares. Accordingly, we will not receive any proceeds from the resale of the
Shares. We will bear all expenses relating to this registration except for
brokerage commissions and expenses, if any, which will be paid by the Selling
Stockholder.
------------------------------------------------------
AMEX Stock Exchange Symbol: "ALU"
------------------------------------------------------
On May 5, 2000, the closing sale price of one share of our Class A
Common Stock on the AMEX Stock Exchange was $7.44.
Our executive offices are located at 50 Emjay Boulevard, Brentwood, New
York 11717 and our telephone number is (516) 273-4000.
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK.
YOU SHOULD CAREFULLY CONSIDER THE FACTORS DESCRIBED
UNDER THE CAPTION "INVESTMENT CONSIDERATIONS" ON PAGE 5
OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR
ANY STATE SECURITIES COMMISSION HAS APPROVED OR
DISAPPROVED 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 May 9, 2000
<PAGE>
---------------------------------
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
from the SEC's Website at "http://www.sec.gov."
We have filed with the SEC a registration statement on Form S-3 to
register shares of our Class A Common Stock. This Prospectus is part of that
registration statement and, as permitted by the SEC's rules, does not contain
all the information included in the registration statement. For further
information with respect to us and our Class A Common Stock, you may refer to
the registration statement and to the exhibits and schedules filed as part of
that registration statement. You can review and copy the registration statement
and its exhibits and schedules at the public reference facilities maintained by
the SEC as described above. The registration statement, including its exhibits
and schedules, is also available on the SEC's web site.
This Prospectus may contain summaries of contracts or other documents.
Because they are summaries, they will not contain all of the information that
may be important to you. If you would like complete information about a contract
or other document, you should read the copy filed as an exhibit to the
registration statement.
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. The information incorporated by reference is
considered to be a part of this prospectus, and information that we file later
with the SEC will automatically update or supersede this information. We
incorporate by reference the documents listed below and any future filing we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934:
1. Annual Report on Form 10-K for the fiscal year ended March 31,
1999; and
2. Quarterly Reports on Form 10-Q for the period ended June 30,
1999 and September 30, 1999.
You may request a copy of these filings, at no cost, by writing to us
at 50 Emjay Boulevard, Brentwood, New York 11717, Attention: David Shamilzadeh.
------------------------------
This Prospectus contains certain forward-looking statements which
involve substantial risks and uncertainties. These forward-looking statements
can generally be identified because the context of the statement includes words
such as "may," "will," "except," "anticipate," "intend," "estimate," "continue,"
"believe," or other similar words. Similarly, statements that describe our
future plans, objectives and goals are also forward-looking statements. Our
factual results, performance or achievements could differ materially from those
expressed or implied in these forward-looking statements as a result of certain
factors, including those listed in "Risk Factors" and elsewhere in this
Prospectus.
-2-
<PAGE>
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR ANY OTHER PERSON TO
GIVE ANY INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS.
YOU MUST NOT RELY ON ANY UNAUTHORIZED INFORMATION. THIS PROSPECTUS DOES NOT
OFFER TO SELL OR BUY ANY SHARES IN ANY JURISDICTION WHERE IT IS UNLAWFUL. THE
INFORMATION IN THIS PROSPECTUS IS CURRENT AS OF MAY 9, 2000.
-------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
Where You Can Find More Information About Us........................................2
Investment Considerations...........................................................4
Use of Proceeds.....................................................................5
Dividend Policy.....................................................................6
Selling Stockholders ...............................................................7
Description of Securities...........................................................8
Plan of Distribution ..............................................................10
Indemnification for Securities Act Liabilities.....................................11
Legal Matters......................................................................11
Experts ...........................................................................11
</TABLE>
-3-
<PAGE>
INVESTMENT CONSIDERATIONS
BEFORE YOU BUY SHARES OF OUR CLASS A COMMON STOCK, YOU SHOULD BE AWARE
THAT THERE ARE VARIOUS RISKS ASSOCIATED WITH SUCH PURCHASE, INCLUDING THOSE
DESCRIBED BELOW. YOU SHOULD CONSIDER CAREFULLY THESE RISK FACTORS, TOGETHER WITH
ALL OF THE OTHER INFORMATION IN THIS PROSPECTUS BEFORE YOU DECIDE TO PURCHASE
SHARES OF OUR CLASS A COMMON STOCK.
SOME OF THE INFORMATION IN THIS PROSPECTUS MAY CONTAIN FORWARD-LOOKING
STATEMENTS. SUCH STATEMENTS CAN BE IDENTIFIED BY THE USE OF FORWARD-LOOKING
WORDS SUCH AS "MAY," "WILL," "EXCEPT," "ANTICIPATE," "INTEND," "ESTIMATE,"
"CONTINUE," "BELIEVE," OR OTHER SIMILAR WORDS. THESE STATEMENTS DISCUSS FUTURE
EXPECTATIONS, CONTAIN PROJECTIONS OF OUR FUTURE RESULTS OF OPERATIONS OR
FINANCIAL CONDITION OR STATE OTHER "FORWARD-LOOKING" INFORMATION. WHEN
CONSIDERING SUCH STATEMENTS, YOU SHOULD KEEP IN MIND THE RISK FACTORS AND OTHER
CAUTIONARY STATEMENTS IN THIS PROSPECTUS. THE RISK FACTORS NOTED IN THIS SECTION
AND OTHER FACTORS NOTED IN THIS PROSPECTUS COULD CAUSE OUR ACTUAL RESULTS TO
DIFFER MATERIALLY FROM THOSE CONTAINED IN ANY FORWARD-LOOKING STATEMENTS.
WE HAVE SIGNIFICANT DEBT
In order to finance our operations, we have incurred significant
indebtedness. Of the Company's total indebtedness of $178,052,790 outstanding at
December 31, 1999, $144,799,151 was outstanding under a working capital line of
credit with several banks. This line of credit is secured by substantially all
of the assets of the Company and its subsidiaries, which are co-borrowers under
the line of credit. The line of credit restricts our ability from incurring
additional indebtedness, pledging assets and declaring dividends or making
distributions to stockholders without the consent of the banks. In the event we
violate any loan covenants or we default on our obligations, the banks could
elect to declare our indebtedness immediately due and payable and foreclose on
our assets. As of the date of this Prospectus, we are in compliance with all of
the terms of our financing agreements.
OUR BUSINESS IS SEASONAL
Our fragrance business has historically been seasonal, reflecting
traditional retail seasonality patterns, with significantly higher sales
representing approximately 33% of annual sales revenue, occurring in the third
fiscal quarter of each year. Significantly higher sales result from increased
purchases of fragrances as gifts during the holiday season. Additionally,
Internet usage and Internet growth may be expected to decline during the summer,
when people spend fewer hours inside. As a result, sales from our fragrance
business may be lower during the summer months than during other seasons.
WE ARE DEPENDENT UPON KEY MEMBERS OF OUR MANAGEMENT
Our business is greatly dependent upon the efforts of Mr. Victor
Jacobs, our Chairman of the Board and Chief Executive Officer, Mr. Herman
Jacobs, our President and Chief Operating Officer, Mr. David Shamilzadeh, our
Senior Vice President and Chief Financial Officer, Mr. Jack Jacobs, our Vice
President of Purchasing and Secretary and Mr. Ramon Montes, our Executive Vice
President of Sales. The loss of services of any of such individuals or other key
personnel could adversely affect the conduct of our business. We have obtained
"key man" life insurance on the lives of such persons for its benefit in the
amount of $1,000,000. Our success will also be dependent upon our ability to
attract and retain experienced management, marketing and industry personnel,
particularly those with knowledge of the Internet and online commerce. We face
considerable competition from other companies in our industries, as well as
other companies that market products via the Internet or online commerce. We
cannot assure you that we can attract and retain such personnel and our
inability to do so could have a material adverse effect on our business.
-4-
<PAGE>
OUR CLASS B COMMON STOCK REPRESENTS A MAJORITY OF OUR VOTING POWER AND KEY
MEMBERS OF MANAGEMENT OWN ALL OF THE CLASS B STOCK
Messrs. Victor Jacobs, Herman Jacobs and Jack Jacobs collectively own
1,200,000 shares of our Class B Common Stock, which has five votes per share
(compared to the Class A Common Stock, which has one vote per share) which, in
the aggregate represents approximately 17.8% of our outstanding capital stock
and approximately 52% of the total voting power. Accordingly, such persons are
able to control us and generally direct our affairs, including electing a
majority of our directors and causing an increase in our authorized capital
causing our dissolution, merger or sale of substantially all of our assets. The
disproportionate vote afforded the Class B Common Stock could also serve to
impede or prevent a change of control of us. As a result, potential acquires
will be discouraged from seeking to acquire control of us through the purchase
of Common Stock, which could have a depressive effect on the price of our
securities. See "Principal Shareholders" and "Description of Securities."
OUR PREFERRED STOCK MAY HAVE THE EFFECT OF PREVENTING OR DELAYING A CHANGE OF
CONTROL
Our Certificate of Incorporation authorizes the issuance of 1,000,000
shares of "blank check" preferred stock with such designations, rights and
preferences as may be determined from time to time by the Board of Directors.
Accordingly, the Board of Directors is empowered, without shareholder approval
(but subject to applicable government regulatory restrictions), to issue
preferred stock with dividend, liquidation, conversion, voting or other rights
which could adversely affect the voting power or other rights of the holders of
our Class A Common Stock. In the event of issuance, the preferred stock could be
utilized, under certain circumstances, as a method of discouraging, delaying or
preventing a change in control of us. Although we have no present intention to
issue any shares of our preferred stock, we cannot assure you that we will not
do so in the future. In addition, certain provisions of the Delaware General
Corporation Law prevent certain stockholders from engaging in certain business
combinations with us, subject to certain exceptions. See "Description of
Securities."
SHARES THAT ARE ELIGIBLE FOR SALE IN THE FUTURE
Sales of a substantial number of shares of our Class A Common Stock in
the public market following this offering could adversely affect the market
price of the Class A Common Stock. Of the 5,550,782 shares of Class A Common
Stock that will be outstanding upon the completion of this offering, all will be
freely tradeable without restriction or further registration under the
Securities Act.
OUR STOCK PRICE MAY BE VOLATILE
The trading price of our Class A Common Stock may be volatile. Such
trading price could be subject to wide fluctuations in response to our
announcements of business developments or those by our competitors, quarterly
variations in operating results, and other events or factors, including our
prospects and expectations by investors and securities analysts. In addition,
stock markets have experienced extreme price volatility in recent years. Such
broad market fluctuations may adversely affect the price of our Class A Common
Stock.
USE OF PROCEEDS
The Selling Stockholder is selling all of the Shares covered by this
Prospectus for its own account. Accordingly, we will not receive any proceeds
from the resale of the Shares. We will bear all expenses relating to this
registration except for brokerage commissions and expenses, if any, which will
be paid by the Selling Stockholder.
-5-
<PAGE>
DIVIDEND POLICY
We have never declared or paid cash dividends on our Class A Common
Stock. We currently anticipate that we will retain all available funds for use
in the operation of our business. As such, we do not anticipate paying any cash
dividends on our Class A Common Stock in the foreseeable future.
-6-
<PAGE>
SELLING STOCKHOLDER
We issued the Shares of Class A Common Stock covered by this Prospectus
to the Selling Stockholder under the terms of an Asset Purchase Agreement dated
as of December 9, 1999 among the Selling Shareholder, Norman Miller and us.
Under the terms of the December 1999 Asset Purchase Agreement, we have to date
issued 75,472 shares of our Class A Common Stock to the Selling Stockholder as
part of the purchase price for the assets purchased thereunder.
The following table lists certain information regarding the Selling
Stockholder's ownership of Shares of our Class A Common Stock as of May 9, 2000,
and as adjusted to reflect the sale of the Shares. Information concerning the
Selling Stockholders may change from time to time.
<TABLE>
<CAPTION>
Shares of Class A Common Stock
Owned
after Offering (1)
---------------------------------------
Shares of Class
A Common Shares Registered
Stock Owned Hereby (2) Number Percent
Prior to Offering
(2)
----------------- ----------------- ---------------- -----------------
<S> <C> <C> <C> <C>
Tri-State Pharmaceutical
Consultants Corp. 75,472 75,472 -0- -0-
</TABLE>
- -----------------
(1) Assumes that all of the shares of Class A Common Stock offered hereby
are sold.
(2) Does not include shares issuable to the Selling Stockholder as part of
the remaining installments payable on account of the purchase price
pursuant to the terms of the Asset Purchase Agreement. Because the
number of shares of Class A Common Stock issuable upon the due date of
each such installment which is payable in shares of Class A Common
Stock is dependent upon the market price of such Class A Common Stock
preceding each such installment, the actual number of shares of Class A
Common Stock that will be issued to the Selling Stockholder on account
of the purchase price cannot be determined at this time.
-7-
<PAGE>
DESCRIPTION OF SECURITIES
GENERAL
The Company is authorized to issue 15,000,000 shares of Class A Common
Stock, of which 5,550,782 were issued and outstanding on February 2, 2000 and
2,200,000 shares of Class B Common Stock, of which 1,200,000 are issued and
outstanding. The Company is also authorized to issue 1,000,000 shares of
Preferred Stock, $.001 par value ("Preferred Stock"). No shares of Preferred
Stock are currently outstanding.
COMMON STOCK
The Holders of shares of Class A Common Stock and Class B Common Stock
have no preemptive rights and the shares are not subject to redemption. The
outstanding shares of Class B Common Stock and Class A Common Stock are duly and
validly issued and fully paid and non-assessable.
Holders of Class A Common Stock and Class B Common Stock are not
entitled to cumulative voting. Holders of Class B Common Stock are entitled to
five votes per share on every matter on which common stockholders of the Company
are entitled to vote. Holders of Class A Common Stock are entitled to one vote
per share on every matter on which common stockholders of the Company are
entitled to vote. Therefore, the holders of the Class B Common Stock
representing a majority of voting rights may elect all of the directors of the
Company and authorize certain corporate transactions without the concurrence of
the public stockholders.
Holders of Class B Common Stock may, at any time, convert their shares
into Class A Common Stock on a share for share basis. Each share of Class B
Common Stock shall automatically be converted into one share of Class A Common
Stock upon its sale or transfer (including its transfer upon the death of the
holder hereof) unless such sale or transfer is to one or more other holders of
Class B Common Stock, certain family members of the holders of Class B Common
Stock or certain trusts for their benefit.
Except for the aforementioned voting and conversion rights, the Class A
Common Stock and Class B Common Stock are identical in all respects.
PREFERRED STOCK
The Company is authorized to issue 1,000,000 million shares of
Preferred Stock, in one or more classes or series as determined from time to
time by the Board of Directors.
In authorizing any class or series of Preferred Stock within the
limitations and restrictions contained in the Company's Certificate of
Incorporation, as amended, and without further action by the Company's
stockholders, the Board of Directors has the authority to issue shares of
Preferred Stock and to fix the number of shares and the relative rights,
conversion rights, voting rights and the terms of redemption, liquidation
preferences and any other preferences, special rights and qualifications of any
such series. Accordingly, the Board of Directors will be empowered, without
stockholder approval, to issue Preferred Stock with rights which could adversely
affect the voting power or other rights of the holders of the Common Stock. In
the event of issuance, the Preferred Stock could be utilized, under certain
circumstances, as a method of discouraging, delaying or preventing a change in
control of the Company.
-8-
<PAGE>
DELAWARE LAW ANTITAKEOVER PROVISION
The Company is subject to the provisions of Section 203 of the General
Corporation Law of the State of Delaware ("DGCL"). In general, this statute
prohibits a publicly-held Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the date of the transaction in which the person becomes an interested
stockholder, unless the business combination is approved in a prescribed manner.
An "interested stockholder" is a person who, together with affiliates and
associates, owns (or within the prior three years did own) 15% or more of the
corporation's voting stock. Such provisions could render the Company more
difficult for such person to obtain control of the Company without the approval
of the Board of Directors.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Class A Common Stock is
Continental Stock Transfer and Trust Company.
-9-
<PAGE>
PLAN OF DISTRIBUTION
The Selling Stockholder and any of its pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of Class A Common Stock on any stock exchange, market or trading facility on
which the Shares are traded or in private transactions. These sales may be at
fixed or negotiated prices. The Selling Stockholder may use any one or more of
the following methods when selling Shares:
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 broker-dealers may agree with the Selling Stockholder 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.
The Selling Stockholder may also sell Shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
The Selling Stockholder may also engage in short sales against the box,
puts and calls and other transactions in securities of the Company or
derivatives of Company securities and may sell or deliver Shares in connection
with these trades. The Selling Stockholder may pledge its shares to its brokers
under the margin provisions of customer agreements. If the Selling Stockholder
defaults on a margin loan, the broker may, from time to time, offer and sell the
pledged Shares.
Broker-dealers engaged by the Selling Stockholder may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholder (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholder does not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The Selling Stockholder and any broker-dealers or agents that are
involved in selling the Shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the Shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act.
-10-
<PAGE>
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Section 145 of the DGCL provides, in general, that a corporation
incorporated under the laws of the State of Delaware, such as our company, 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 (other than a
derivative action by or in the right of the corporation) by reason of the fact
that such person 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 enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
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 such person's conduct was unlawful. In the case of a
derivative action, a Delaware corporation may indemnify any such person against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or any other court in which such action was brought determines such
person is fairly and reasonably entitled to indemnity for such expenses.
Our Certificate of Incorporation provides that directors shall not be
personally liable for monetary damages to us or our stockholders for breach of
fiduciary duty as a director, except for liability resulting from a breach of
the director's duty of loyalty to our stockholders, intentional misconduct or
wilful violation of law, actions or inactions not in good faith, an unlawful
stock purchase or payment of a dividend under Delaware law, or transactions from
which the director derives improper personal benefit. Such limitation of
liability does not affect the availability of equitable remedies such as
injunctive relief or rescission. Our Certificate of Incorporation also
authorizes us to indemnify our officers, directors and other agents, by bylaws,
agreements or otherwise, to the fullest extent permitted under Delaware law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions, or otherwise, the small
business issuer 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.
LEGAL MATTERS
Parker Chapin LLP, New York, New York will pass upon the validity of
the securities offered hereby.
EXPERTS
The consolidated financial statements as of March 31, 1999 and 1998 and
for each of the two years in the period ended March 31, 1999 incorporated by
reference in this Prospectus have been so incorporated in reliance on the report
of Mayer Rispler & Company, P.C., independent certified public accountants,
given on the authority of said firm as experts in auditing and accounting.
-11-
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------- --------------------------------------------
<S> <C>
WE HAVE NOT AUTHORIZED ANY DEALER,
SALESPERSON OR ANY OTHER PERSON TO GIVE ANY
INFORMATION OR TO REPRESENT ANYTHING NOT
CONTAINED IN THIS PROSPECTUS. YOU MUST NOT
RELY ON ANY UNAUTHORIZED INFORMATION. THIS
PROSPECTUS DOES NOT OFFER TO SELL OR BUY ANY
SHARES IN ANY JURISDICTION WHERE IT IS
UNLAWFUL. THE INFORMATION IN THIS
PROSPECTUS IS CURRENT AS OF MAY 9, 2000. 75,472 SHARES OF
CLASS A COMMON STOCK
TABLE OF CONTENTS
Page
Where You Can Find More
Information About Us...............
Investment Consideration ...................
Use of Proceeds.............................
Dividend Policy.............................
Selling Stockholders .......................
Description of Securities...................
Plan of Distribution .......................
Indemnification for Securities
Act Liabilities....................
Legal Matters............................... PROSPECTUS
Experts ....................................
- --------------------------------------------
May 9, 2000
--------------------------------------------
</TABLE>
<PAGE>
II-4
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses which will be paid
by the Company in connection with the issuance and distribution of the
securities being registered on this Registration Statement. The Selling
Stockholders will not incur any of the expenses set forth below. All amounts
shown are estimates.
<TABLE>
<CAPTION>
<S> <C>
Filing fee for registration statement ...............................$148.23
Legal fees and expenses..............................................$10,000.00
Accounting expenses..................................................$10,000.00
Miscellaneous........................................................$4851.77
Total..........................................................$ 25,000.00
===========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides, in general, that a corporation incorporated under the
laws of the State of Delaware, such as the registrant, 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 (other than a derivative action
by or in the right of the corporation) by reason of the fact that such person 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 enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such 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 such person's
conduct was unlawful. In the case of a derivative action, a Delaware corporation
may indemnify any such person against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or any other court in which such
action was brought determines such person is fairly and reasonably entitled to
indemnity for such expenses.
The Company's Certificate of Incorporation provides that directors
shall not be personally liable for monetary damages to the Company or its
stockholders for breach of fiduciary duty as a director, except for liability
resulting from a breach of the director's duty of loyalty to the Company or its
stockholders, intentional misconduct or wilful violation of law, actions or
inactions not in good faith, an unlawful stock purchase or payment of a dividend
under Delaware law, or transactions from which the director derives improper
personal benefit. Such limitation of liability does not affect the availability
of equitable remedies such as injunctive relief or rescission. The Company's
Certificate of Incorporation also authorizes the Company to indemnify its
officers, directors and other agents, by bylaws, agreements or otherwise, to the
fullest extent permitted under Delaware law.
ITEM 16. EXHIBITS.
NUMBER DESCRIPTION OF EXHIBIT
5.1 Opinion of Parker Chapin LLP.
23.1 Consent of Mayer Rispler & Company, P.C.
23.2 Consent of Parker Chapin LLP (included in their opinion filed
as Exhibit 5.1).
24.1 Power of Attorney (included on page II-4 to the Registration
Statement).
II-1
<PAGE>
ITEM 17. UNDERTAKINGS.
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;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(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 and 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 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 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the small business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer 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 small business issuer of expenses incurred or
paid by a director, officer or controlling person of the small business issuer
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 small business issuer 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 the issue.
The undersigned small business issuer 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
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.
II-2
<PAGE>
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 Brentwood, State of New York on May 8, 2000.
ALLOU HEALTH & BEAUTY CARE, INC.
By: /s/ Victor Jacobs
-------------------------
Victor Jacobs
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes David Shamilzadeh and Victor Jacobs, each acting
alone, 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) to this registration statement and to file the same with 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
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 attorneys-in-fact and agents or any of them, or their
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 on Form S-3 has been signed below by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C>
/s/ Victor Jacobs Chairman of the Board and May 9, 2000
-------------------- Chief Executive Officer
Victor Jacobs
/s/ Herman Jacobs President and Director May 9, 2000
--------------------
Herman Jacobs
/s/ David Shamilzadeh Chief Financial Officer, May 9, 2000
--------------------- Chief Accounting Officer
David Shamilzadeh and Director
/s/ Jack Jacobs Director May 9, 2000
--------------------
Jack Jacobs
/s/ Sol Naimark Director May 9, 2000
--------------------
Sol Naimark
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C>
/s/ Jeffrey Berg Director May 9, 2000
--------------------
Jeffrey Berg
/s/ Stuart Glasser Director May 9, 2000
--------------------
Stuart Glasser
</TABLE>
II-4
<PAGE>
SECURITIES AND
EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
-------------
EXHIBITS
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
ALLOU HEALTH & BEAUTY CARE, INC.
(EXACT NAME OF ISSUER AS SPECIFIED
IN ITS CHARTER)
MAY 9, 2000
II-5
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
EXHIBIT
- -------
NO. DESCRIPTION OF DOCUMENT PAGE NO./REF.
- --- ----------------------- -------------
<S> <C> <C>
5.1 Opinion of Parker Chapin LLP.
23.1 Consent of Mayer Rispler & Company, P.C.
23.2 Consent of Parker Chapin LLP (included in their opinion
filed as Exhibit 5.1).
24.1 Power of Attorney (see page II-4 to the Registration
Statement).
</TABLE>
II-6
EXHIBIT 5.1
May 9, 2000
Allou Health & Beauty Care, Inc.
50 Emjay Boulevard
Brentwood, New York 11717
Gentlemen:
We have acted as counsel to Allou Health & Beauty Care, Inc., a
Delaware corporation (the "Company"), pursuant to the Registration Statement on
Form S-3 (the "Registration Statement") being filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, relating to
the issuance of 75,472 shares (the "Shares") of Class A Common Stock, par value
$.001 per share (the "Common Stock") of the Company pursuant to an Asset
Purchase Agreement among the Company, Tri-State Pharmaceutical Consultants Corp.
and Norman Miller (the "Asset Purchase Agreement").
Capitalized terms used herein and not defined shall have the meanings
given to them in the Registration Statement.
In connection with the foregoing, we have examined originals or copies,
satisfactory to us, of the Company's (i) Certificate of Incorporation, as
amended (ii) By-laws and (iii) resolutions of the Company's board of directors.
We have also reviewed such other matters of law and examined and relied upon all
such corporate records, agreements, certificates and other documents as we have
deemed relevant and necessary as a basis for the opinion hereinafter expressed.
In such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the original documents of all documents submitted to us as copies or
facsimiles. As to any facts material to such opinion, we have, to the extent
that relevant facts were not independently established by us, relied on
certificates of public officials and certificates of officers or other
representatives of the Company.
Based upon and subject to the foregoing, we are of the opinion that the
75,472 Shares that were issued pursuant to the Asset Purchase Agreement have
been validly issued and are fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference made to us under the caption "Legal
Matters" in the prospectus constituting part of the Registration Statement.
Very truly yours,
/S/ Parker Chapin LLP
---------------------
PARKER CHAPIN LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
June 2, 1999 appearing on page F-1 of Allou Health & Beauty Care, Inc.'s Annual
Report on Form 10-K for the year ended March 31, 1999. We also consent to the
reference to us under the heading "Experts" in such prospectus.
/s/ Mayer Rispler & Company, P.C.
- -------------------------------------
Mayer Rispler & Company, P.C.
New York, NY
May 9, 2000
