As filed with the Securities and Exchange Commission on July 19, 2002
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ALLOU HEALTH & BEAUTY CARE, INC.
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(Exact Name of Registrant as Specified in its Charter)
DELAWARE 11-2953972
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(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
50 EMJAY BOULEVARD
BRENTWOOD, NY 11717
(631) 273-4000
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(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
VICTOR JACOBS
CHAIRMAN OF THE BOARD
50 EMJAY BOULEVARD
BRENTWOOD, NY 11717
(631) 273-4000
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(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
Copy to:
Henry I. Rothman, Esq.
Jenkens & Gilchrist Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
(212) 704-6000
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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. |X|
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. |_|
CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM PROPOSED
OFFERING MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO BE PRICE AGGREGATE REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
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Class A Common Stock, $.001 par
value per share ................ 32,051 $5.78 (1) $185,254.80 $44.28
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Total Registration Fee ......... $44.28
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933; based on the
average of the high and low prices reported on the American Stock
Exchange on July 16, 2002.
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.
SUBJECT TO COMPLETION, DATED JULY 19, 2002
PROSPECTUS
ALLOU HEALTH & BEAUTY CARE, INC.
Tri-State Pharmaceuticals Consultants Corp., the selling stockholder,
is selling up to 32,051 shares of our common stock.
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American Stock Exchange Symbol: "ALU"
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On July 16, 2002, the closing sale price of one share of our Class A
Common Stock on the American Stock Exchange was $5.70.
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. YOU SHOULD
CAREFULLY CONSIDER THE FACTORS DESCRIBED UNDER THE CAPTION "RISK FACTORS" ON
PAGE 2 OF THIS PROSPECTUS. NEITHER THE SECURITIES AND EXCHANGE COMMISSION (THE
"SEC") 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 information in this prospectus is not complete and may be changed. The
selling stockholder may not sell these securities until the registration
statement filed with the SEC 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.
The date of this Prospectus is _________, 2002
RISK FACTORS
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.
BECAUSE WE HAVE LARGE DEBT REQUIREMENTS, WE ARE LIMITED IN HOW WE SPEND OUR
FUNDS AND ARE LIMITED IN OUR ABILITY TO RAISE ADDITIONAL FUNDS IN FUTURE
FINANCINGS.
In order to finance our operations, on September 4, 2001, we entered
into an agreement for a working capital line of $200,000,000 of credit with a
consortium of banks led by Congress Financial Corporation and Citibank, N.A.
Certain of our subsidiaries are borrowers under this facility. The facility has
a term of three years. This line of credit is secured by a security interest in
most of our assets. The line of credit is revolving, and interest on the loan
balance is payable at .25% per annum above the prime rate or, at our option,
2.75% per annum above the Eurodollar rate. We utilize cash generated from
operations to reduce short-term borrowings, which in turn acts to increase loan
availability consistent with our financing agreement. The line of credit
restricts our ability to incur additional indebtedness, pledge assets, declare
dividends or make distributions to stockholders without the consent of the
banks. If 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.
IF WE LOSE ANY MEMBERS OF OUR KEY MANAGEMENT THEN OUR BUSINESS WILL SUFFER.
Our business is greatly dependent upon the efforts of Mr. Victor
Jacobs, our Chairman of the Board, Mr. Herman Jacobs, our Chief Executive
Officer, Mr. David Shamilzadeh, our President, Principal Financial Officer and
Principal Accounting Officer and Mr. Jack Jacobs, our Executive Vice President.
If we lose the services of any of these individuals or other key personnel it
could adversely affect the conduct of our business. We have entered into
employment agreements with each of the Jacobs. We have obtained "key man" life
insurance on each of the Jacobs in the amount of $1,000,000. We have had success
in retaining key personnel in the past and no key employee is planning to retire
or leave in the near future.
BECAUSE KEY MEMBERS OF OUR MANAGEMENT OWN ALL OF THE CLASS B COMMON STOCK, THEY
CAN CONTROL OUR AFFAIRS.
Messrs. Victor Jacobs, Herman Jacobs and Jack Jacobs collectively own
1,175,000 shares of our class B common stock, which has five votes per share and
which, in the aggregate, represents approximately 16.0% of our outstanding
capital stock and approximately 48.4% of the total voting power. The class B
owners are able to control us and direct our affairs, including:
o electing a majority of our directors;
o causing an increase in our authorized capital; or
o causing our dissolution, merger or the sale of
substantially all of our assets.
The disproportionate vote afforded the class B common stock might also
impede or prevent a change of control. As a result of the class B voting power,
potential acquirers may 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.
-2-
ANTI-TAKEOVER MEASURES IN OUR CERTIFICATE OF INCORPORATION COULD ADVERSELY
AFFECT THE VOTING POWER OF THE HOLDERS OF THE CLASS A COMMON STOCK.
Our certificate of incorporation authorizes anti-takeover measures such
as the authority to issue 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. Those measures could have the effect of delaying,
deterring or preventing a change in control without any action by the holders of
our class A common stock. In addition, the issuance of preferred stock, without
stockholder approval and with dividend, liquidation, conversion, voting or other
rights as the board of directors may determine, could adversely affect the
voting powers of the holders of our class A common stock. Such voting powers may
include the loss of voting control to others and the prevention or frustration
of attempts to replace or remove our current management. Although we have no
present intention of issuing any shares of preferred stock, we cannot assure you
that we will not do so in the future.
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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 Room at 450 Fifth Street, N.W., Washington, D.C.,
20549. You may obtain information on the operation of the Public Reference Room
by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site that
contains our reports, proxy and information statements, and other information
regarding us 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 document 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:
o Annual Report on Form 10-K for the fiscal year ended March 31,
2002.
You may request a copy of this filing, at no cost, by writing to us at
our executive offices at 50 Emjay Boulevard, Brentwood, New York 11717,
Attention: David Shamilzadeh. Our telephone number is (631) 273-4000.
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This prospectus contains 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.
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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 the
selling stockholder will pay.
DIVIDEND POLICY
We have never declared or paid cash dividends on our class A common
stock and we currently anticipate that we will retain all available funds for
use in the operation of our business. Therefore, we do not anticipate paying any
cash dividends on our class A common stock in the foreseeable future.
-5-
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 by and among the selling stockholder, Norman Miller and
us. Norman Miller has advised us that he is the sole shareholder of the selling
stockholder. Under the terms of the asset purchase agreement, we have to date
issued 232,144 shares of our class A common stock to the selling stockholder as
part of the purchase price. 200,143 of these shares have previously been sold.
The following table lists information regarding the selling
stockholder's ownership of shares of our class A common stock as of July 19,
2002, and as adjusted to reflect the sale of the shares. Information concerning
the selling stockholder may change from time to time.
Shares of
Class A Common Shares of Class A Common Stock to
Stock Owned Shares be Owned
Prior to Registered after Offering (1)
Offering (2) Hereby (2) Number Percent
--------------------- ----------------- ---------------- -----------------
Tri-State Pharmaceutical
Consultants Corp............. 32,051 32,051 -0- -0-
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(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.
-6-
DESCRIPTION OF SECURITIES
GENERAL
We are authorized to issue: 15,000,000 shares of class A common stock,
of which 6,136,351 were issued and outstanding on July 16, 2002, and 2,200,000
shares of class B common stock, of which 1,200,000 were issued and outstanding
on July 16, 2002. We are also authorized to issue 1,000,000 shares of preferred
stock, $.001 par value. 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 A common stock and class B 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 A common stock are entitled to
one vote per share on every matter on which common stockholders are entitled to
vote. Holders of class B common stock are entitled to five votes per share on
every matter on which common stockholders are entitled to vote.
Holders of class B common stock may, at any time, convert their shares
into class A common stock on a share for share basis.
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
We are 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.
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 these preferred
shares, subject only to the limitations and restrictions contained in our
certificate of incorporation. No stockholder approval is needed. The board of
directors is empowered 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 an issuance, the preferred stock could be utilized, under
certain circumstances, as a method of discouraging, delaying or preventing a
change in control.
DELAWARE LAW ANTI-TAKEOVER PROVISIOn
We are subject to the provisions of Section 203 of the General
Corporation Law of the State of Delaware. In general, the DGCL 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. This provision could make it more difficult for an "interested
stockholder" to obtain control of us 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 & Trust Company.
-7-
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 in private transactions or on any stock exchange, market
or trading facility on which the shares are traded. 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 of 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, derivatives and other transactions in our 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 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 any sales. If a sale occurs,
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.
-8-
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 may:
o indemnify any director, officer, employee or agent who worked
directly for it or who worked at its request for another enterprise
and 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.
o indemnify against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by any of the
aforementioned people in connection with the action, suit or
proceeding if this person acted in good faith and in a manner this
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, the corporation had no reasonable cause to
believe that this person's conduct was unlawful.
o in the case of a derivative action, indemnify any person against
expenses actually and reasonably incurred by this person in
connection with the defense or settlement of the action or suit, if
this person acted in good faith and in a manner this person
reasonably believed to be in or not opposed to the best interests of
the corporation. However, no indemnification shall be made in
respect of any claim, issue or matter as to which this 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 the action was brought determines that this
person is fairly and reasonably entitled to indemnity for his/her
expenses.
Our certificate of incorporation also provides that our directors shall
not be personally liable for monetary damages to us or our stockholders for
breach of fiduciary duty as a director, except for:
o liability resulting from a breach of the director's duty of loyalty
to our stockholders
o intentional misconduct or willful violation of law
o actions or inactions not in good faith
o unlawful stock purchases or payments of a dividend under Delaware
law; and
o transactions from which the director derives improper personal
benefit.
This 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 issuers
pursuant to the foregoing provisions, or otherwise, we have been advised that in
the opinion of the SEC, such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
LEGAL MATTERS
Jenkens & Gilchrist Parker Chapin LLP, New York, New York has passed
upon the validity of the securities offered hereby.
EXPERTS
The consolidated balance sheet of Allou Health and Beauty Care, Inc.
and Subsidiaries as of March 31, 2002, and the related consolidated statements
of income, stockholders' equity and cash flows for the year ended March 31,
2002, have been incorporated by reference herein in reliance upon the report of
KPMG LLP, our independent accountants, and upon the authority of said firm, as
experts in auditing and accounting.
-9-
The consolidated balance sheet of Allou Health and Beauty Care, Inc.
and Subsidiaries as of March 31, 2001, and the related consolidated statements
of income, stockholders' equity and cash flows for the year ended March 31,
2001, are incorporated by reference in this prospectus and elsewhere in this
registration statement, to the extent and for the periods indicated in their
reports, have been audited by Arthur Andersen LLP, independent public
accountants, and are included herein in reliance upon the authority of said firm
as experts in giving said reports. We have not been able to obtain, after
reasonable efforts, the written consent of Arthur Andersen LLP to the inclusion
of its report in this prospectus, and we have not filed that consent in reliance
on Rule 437a promulgated under the Securities Act. Because Arthur Andersen LLP
has not consented to the inclusion of its report in this prospectus, your
ability to assert claims against Arthur Andersen LLP may be limited. In
particular, because of this lack of consent, you will not be able to sue Arthur
Andersen LLP under Section 11(a)(4) of the Securities Act for any untrue
statements of a material fact contained in the financial statements audited by
Arthur Andersen LLP or any omissions to state a material fact required to be
stated in those financial statements and therefore your right of recovery under
that section may be limited.
The consolidated statements of income, stockholders' equity and cash
flows for the year ended March 31, 2000, are incorporated by reference in this
prospectus and elsewhere in this registration statement, to the extent and for
the periods indicated in their reports, have been audited by Mayer Rispler &
Company, P.C., independent public accountants, and are included herein in
reliance upon the authority of said firm as experts in giving said reports.
-10-
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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 JULY 19, 2002. 32,051 SHARES OF
CLASS A COMMON STOCK
TABLE OF CONTENTS
Page
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Risk Factors .......................................2
Where You Can Find More
Information About Us................................4
Use of Proceeds.....................................5
Dividend Policy.....................................5
Selling Stockholder.................................6
Description of Securities...........................7
Plan of Distribution ...............................8
Indemnification for Securities
Act Liabilities.....................................9
Legal Matters.......................................9 PROSPECTUS
Experts ............................................9
_______, 2002
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses which we will pay
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.
Filing fee for registration statement ........ $44.28
Legal fees and expenses ..................... $20,000.00
Accounting expenses........................... $5,000.00
Miscellaneous................................. $4,955.72
Total.................................... $30,000.00
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of 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 willful 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.
II-1
ITEM 16. EXHIBITS.
NUMBER DESCRIPTION OF EXHIBIT
5.1 Opinion of Jenkens & Gilchrist Parker Chapin LLP
23.1 Consent of KPMG LLP
23.2 Consent of Mayer Rispler & Company, P.C.
23.3 Consent of Arthur Andersen LLP (omitted pursuant to Rule 437a
under the Securities Act)
23.4 Consent of Jenkens & Gilchrist Parker Chapin LLP (included in its
opinion filed as Exhibit 5.1)
24.1 Power of Attorney (included on page II-4 to the Registration
Statement)
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, if the
total dollar value of securities offered would not exceed that which
was registered, any increase or decrease in the volume of securities
offered 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, 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 may be permitted to directors, officers and controlling persons of the
issuer pursuant to the foregoing provisions, or otherwise, the issuer has been
advised that in the opinion of the SEC, 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 liabilities is
asserted by a director, officer or controlling person in connection with the
securities being registered, other than the payment by the issuer of expenses
incurred or paid by a director, officer or controlling person of the issuer in
the successful defense of any action, suit or proceeding, the issuer will,
unless in the opinion of its counsel the matter
II-2
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 issuer hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of the
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 those securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 July 19, 2002.
ALLOU HEALTH & BEAUTY CARE, INC.
By: /s/ David Shamilzadeh
----------------------
David Shamilzadeh
President, Principal Financial
Officer and Principal Accounting
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.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Victor Jacobs Chairman of the Board July 19, 2002
- --------------------------------------
Victor Jacobs
/s/ Herman Jacobs Chief Executive Officer and Director July 19, 2002
- --------------------------------------
Herman Jacobs
/s/ David Shamilzadeh President, Principal Financial Officer, July 19, 2002
- -------------------------------------- Principal Accounting Officer and Director
David Shamilzadeh
Executive Vice President and
- -------------------------------------- Director
Jack Jacobs
II-4
/s/ Sol Naimark Director July 19, 2002
- --------------------------------------
Sol Naimark
/s/ Jeffrey Berg Director July 19, 2002
- --------------------------------------
Jeffrey Berg
/s/ Stuart Glasser Director July 19, 2002
- --------------------------------------
Stuart Glasser
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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)
JULY 19, 2002
II-6
EXHIBIT INDEX
-------------
NUMBER DESCRIPTION OF EXHIBIT PAGE NO./REF.
- ------ ---------------------- -------------
5.1 Opinion of Jenkens & Gilchrist Parker Chapin LLP II-8
23.1 Consent of KPMG LLP II-9
23.2 Consent of Mayer Rispler & Company, P.C. II-10
23.3 Consent of Arthur Andersen LLP (omitted pursuant to
Rule 437a under the Securities Act) N/A
23.4 Consent of Jenkens & Gilchrist Parker Chapin LLP
(included in its opinion filed as Exhibit 5.1) II-8
24.1 Power of Attorney (included on page II-4 to the
Registration Statement) II-4
II-7