As filed with the Securities and Exchange Commission on October 27, 2006
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AVP, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
98-0142664
(I.R.S. Employer Identification No.)
6100 Center Drive, Suite 900
Los Angeles, California 90045
(Address of Principal Executive Offices) (Zip Code)
AVP, Inc.
2005 Stock Incentive Plan
(Full Title of the Plan)
Andrew Reif
6100 Center Drive, Suite 900
Los Angeles, California 90045
(Name and Address of Agent for Service)
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Proposed Maximum
Title Of Securities Amount To Be Offering Price Proposed Maximum Amount of
To Be Registered Registered (1) Per Share (2) Aggregate Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------------------------------
Common stock, par value $.001 30,000,000 $.81 $24,300,000.00 $2,600.10
per share
======================================================================================================================
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate number of shares of common
stock which may be issued by reason of stock splits, stock dividends or similar
corporate events.
(2) Computed pursuant to Rule 457(h), based on the exercise price of
outstanding options to purchase common stock, and with respect to options
available for grant, based on the average of the bid and asked price per share
of common stock on October 23, 2006, as reported on the OTC Bulletin Board.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company, Inc. hereby incorporates by reference into this registration
statement the following documents previously filed with the Securities and
Exchange Commission (the "SEC"):
(1) Our Annual Report on Form 10-KSB for the year ended
December 31, 2005;
(2) Our Quarterly Report on Form 10-QSB for the quarter ended
March 31, 2006;
(3) Our Quarterly Report on Form 10-QSB dated for the quarter ended
June 30, 2006;
(4) Our Current Report on Form 8-K dated January 6, 2006;
(5) Our Current Report on Form 8-K dated February 21, 2006;
(6) Our Current Report on Form 8-K dated March 3, 2006;
(7) Our Current Report on Form 8-K dated April 17, 2006;
(8) Our Current Report on Form 8-K dated May 4, 2006;
(9) Our Current Report on Form 8-K dated May 10, 2006;
(10) Our Current Report on Form 8-K dated May 15, 2006;
(11) Our Current Report on Form 8-K dated June 9, 2006;
(12) Our Current Report on Form 8-K dated August 15, 2006;
(13) Our Current Report on Form 8-K dated August 24, 2006;
(14) Our Current Report on Form 8-K dated September 5, 2006; and
(15) Our prospectus filed August 10, 2006 pursuant to Rule 424(b)(3),
including its description of our Common Stock.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, after the date of this registration statement
and prior to the filing of a post-effective amendment which indicates that all
shares of common stock offered hereby have been sold or which de-registers all
shares of common stock then remaining unsold, shall be deemed to be incorporated
by reference into this registration statement and to be part hereof from the
date of the 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 or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law and the Registrant's Bylaws provide for
indemnification of the Registrant's officers and directors for liabilities and
expenses that they may incur in such capacities. In general, the Registrant's
directors and officers are indemnified with respect to actions taken in good
faith and in a manner such person believed to be in the Registrant's best
interests, and with respect to any criminal action or proceedings, actions that
such person has no reasonable cause to believe were unlawful. Furthermore, the
personal liability of the Registrant's directors is limited as provided in the
Registrant's certificate of incorporation.
Insofar as indemnification for liabilities arising under the Securities Act of
1933, as amended (the "Securities Act"), may be permitted to directors, officers
or persons controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Securities and Exchange
Commission (the "SEC"), such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
4.1 AVP, Inc. 2005 Stock Incentive Plan*
5.1 Opinion of Loeb & Loeb LLP
23.1 Mayer Hoffman McCann P.C.
24.1 Power of Attorney (included as part of the signature
page of this registration statement).
- ----------------
*Incorporated by reference to Annex C of AVP, Inc.'s definitive proxy statement
filed with the SEC on July 18, 2005.
Item 9. Undertakings.
The undersigned registrant will:
(1) File, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to:
(iii) Include any material information with respect to the plan of
distribution;
(2) For determining liability under the Securities Act of 1933, treat
each post-effective amendment as a new registration statement
relating to the securities offered, and the offering of the
securities at that time to be the initial bona fide offering
thereof.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
2
(4) For determining liability of the undersigned small business issuer
under the Securities Act to any purchaser in the initial
distribution of the securities, the undersigned small business
issuer undertakes that in a primary offering of securities of the
undersigned small business issuer pursuant to this registration
statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications,
the undersigned small business issuer will be a seller to the
purchaser and will be considered to offer or sell such securities to
such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
small business issuer relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned small business issuer or
used or referred to by the undersigned small business issuer;
(iii) The portion of any other free writing prospectus relating to
the offering containing material information about the
undersigned small business issuer or its securities provided
by or on behalf of the undersigned small business issuer; and
(iv) Any other communication that is an offer in the offering made
by the undersigned small business issuer to the purchaser.
3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and authorized this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Los Angeles, state of California, on this 27th day
of October, 2006.
AVP, Inc.
By: /s/ Andrew Reif
---------------------------------------
Andrew Reif
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Leonard Armato and Andrew Reif his true and
lawful attorney-in-fact, 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 all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact or his substitute, each
acting alone, may lawfully do or cause to be done by virtue thereof.
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities on this 27th day of October, 2006.
SIGNATURE TITLE (CAPACITY)
/s/ Leonard Armato Chairman, Chief Executive
- -------------------------- Officer and Director (Principal Executive Officer)
Leonard Armato
Chief Operating Officer and Chief Financial Officer
/s/ Andrew Reif (Principal Financial Officer)
- --------------------------
Andrew Reif
Chief Marketing Officer and Director
/s/ Bruce Binkow
- --------------------------
Bruce Binkow
Controller (Principal Accounting Officer)
/s/ Thomas Torii
- --------------------------
Thomas Torii Director
/s/ William Chardavoyne
- -------------------------- Director
William Chardavoyne
/s/ Philip Guarascio Director
- --------------------------
Philip Guarascio
Director
/s/ Jack Kemp
- --------------------------
Jack Kemp
/s/ Scott Painter Director
- --------------------------
Scott Painter
4
/s/ Roger L. Werner, Jr. Director
- --------------------------
Roger L. Werner, Jr.
/s/ Brett Yormark Director
- --------------------------
Brett Yormark
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EXHIBIT INDEX
EXHIBIT
NUMBER
DESCRIPTION OF EXHIBIT
4.1 AVP, Inc. 2005 Stock Incentive Plan.(1)
5.1 Opinion of Loeb & Loeb LLP.
23.1 Consent of Mayer Hoffman McCann P.C.
24.1 Power of Attorney (included as part of the signature
page of this registration statement).
(1) Incorporated by reference to Exhibit A of the Company's definitive
proxy statement filed with the SEC on July 18, 2006.
6