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As filed with the Securities and Exchange Commission on April 5, 1997.
Registration No. 333-__________
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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
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(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
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<TABLE>
<CAPTION>
===============================================================================
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
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
no par value 1,000,000 $3.00 $3,000,000 $ 990.00
===============================================================================
</TABLE>
(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.
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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.
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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.
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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
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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
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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.
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<S> <C>
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
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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
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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.
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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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/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
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No.
- -------
<S> <C>
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
</TABLE>
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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
<PAGE> 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
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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
