Unassociated Document
As filed
with the Securities and Exchange Commission on August 11, 2009
Registration
No. 333- ______
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
Registration
Statement Under The
Securities
Act of 1933
INTER
PARFUMS, INC.
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
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13-3275609
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(IRS
Employer Identification No.)
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551 Fifth
Avenue
New York,
New York 10167
212.983.2640
(Address
of Principal Executive Offices)
Options
Granted Pursuant to Agreements
(Full
Title of the Plans)
Russell
Greenberg, Chief Financial Officer
Inter
Parfums, Inc.
551 Fifth
Avenue
New York,
New York 10167
212.983.2640
(Name and
Address of Agent For Service)
Copy
to:
Joseph A.
Caccamo, Esq.
GrayRobinson,
P.A.
401 East
Las Olas Boulevard
Suite
1850
Ft.
Lauderdale, Florida 33301
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
definition of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act).
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Large
accelerated Filer ¨
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Accelerated
filer x
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Non-accelerated
filer ¨
(Do not check if a smaller reporting company)
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Smaller
reporting company ¨
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CALCULATION
OF REGISTRATION FEE
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Title
of securities to
be
registered
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Amount
to be
registered
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Proposed
maximum
offering
price per
share
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Proposed
maximum
aggregate
offering
price
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Amount
of
registration
fee
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Common
Stock
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171,900
shares
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$ |
12.643 |
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$ |
2,173,331.70 |
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$ |
121.27 |
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· The proposed
maximum offering price per share ranges from approximately $9.967 to
$12.643.
· Pursuant to
Rule 416 under the Securities Act of 1933, this registration statement also
covers additional securities that may become issuable in accordance with the
anti-dilution provisions applicable to the options exercisable for the common
stock registered hereunder.
· Shares
registered hereunder are, or may become, issuable in connection with the
exercise of options granted under the registrant’s stock option
plans.
· Estimated
solely for the purposes of calculating the registration fee in accordance with
Rule 457(h), based on the exercise price of the options and a registration fee
of $55.80 per $1,000,000 of maximum offering price.
EXPLANATORY
NOTE
We have
prepared this registration statement in accordance with the requirements of Form
S-8 under the Securities Act of 1933 to register shares of common stock issuable
on exercise of stock options granted under our employee stock option plans and
our non-employee director stock option plans. Our common stock is traded on the
Nasdaq National Market.
This
registration statement on Form S-8 also includes a prospectus prepared in
accordance with Instruction C of Form S-8, in accordance with the requirements
of Part I of Form S-3, and may be used for reoffers and resales on a continuous
or delayed basis in the future of up to an aggregate of 117,000 shares issuable
on exercise of options that may constitute “control
securities.”
REOFFER
PROSPECTUS
INTER
PARFUMS, INC.
171,900 shares of common
stock
To Be
Issued Pursuant to
Outstanding
Non-qualified Stock Options Under Our
Employee
Stock Option Plans
and
Our
Non
Employee Director Stock Option Plans
This
prospectus relates to an aggregate of 171,900 shares of our common stock that
may be issued to the selling security holders upon the exercise of outstanding
non-qualified stock options previously granted to these individuals at exercise
prices ranging from approximately $9.967 to $12.643 per share. All
selling security holders listed in this prospectus are our officers, directors
or employees.
The
selling security holders may sell all or a portion of the shares of our common
stock from time to time in the over-the-counter market, in negotiated
transactions, directly or through brokers or otherwise, and at market prices
prevailing at the time of such sales or at negotiated prices. We will not
receive any proceeds from sales by selling security holders, except upon
exercise of the options.
Our
common stock trades on the Nasdaq Global Select Market under the symbol “IPAR.”
On August 7, 2009, the last sale price of our common stock as reported on the
Nasdaq Global Select Market was $10.14 per share.
Investing
in our common stock involves a high degree of risk. For more information, please
see “Risk Factors” beginning on page 2.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined whether this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date
of this prospectus is August 11, 2009.
TABLE OF
CONTENTS
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Page
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Important
Note Regarding Forward Looking Statements
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ii
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Summary:
The Company
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1
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Summary:
Our Business
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1
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Risk
Factors
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3
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Use
Of Proceeds
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8
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Selling
Security Holders
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8
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Stock
Option Plans
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10
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Plan
Of Distribution
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14
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Description
Of Securities
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16
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Transfer
Agent
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17
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Legal
Matters
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17
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Experts
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17
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Documents
Incorporated By Reference
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18
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Where
You Can Find More Information About Us
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You
should only rely on the information contained in this prospectus or incorporated
by reference in this prospectus. We have not authorized any broker or dealer or
anyone else to provide you with different information. Our common stock is not
being offered in any jurisdiction where the offer is not permitted. You should
not assume that the information in this prospectus or any supplement is accurate
as of any date other than the date on the front of this prospectus.
IMPORTANT
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus includes forward-looking statements within the meaning
of Section 27A the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934. When used in this prospectus, the
words “anticipate,” “believe,” “estimate,” “will,” “should,” “could,” “may,”
“intend,” “expect,” “plan,” “predict,” “potential,” or “continue” or similar
expressions identify certain of such forward-looking statements. Although we
believe that our plans, intentions and expectations reflected in such
forward-looking statements are reasonable, we can give no assurance that such
plans, intentions or expectations will be achieved.
Actual
results, performance or achievements could differ materially from those
contemplated, expressed or implied by the forward-looking statements contained
in this prospectus. Important factors that could cause actual results to differ
materially from our forward-looking statements are set forth in this
prospectus under the heading “Risk Factors”.
Such
factors include: potential reduction in sales of our fragrance and fragrance
related products due to reduced consumer confidence as the result of a prolonged
economic downturn or recession in the United States, Europe or any of the other
countries in which we do significant business; uncertainties and continued
deterioration in global credit markets could negatively impact suppliers,
customers and consumers; dependence upon Burberry for a significant portion of
our sales; continuation and renewal of existing license agreements, sales and
marketing efforts of specialty market retailers, such as The Gap, Inc.;
protection of our intellectual property rights; effectiveness of our sales and
marketing efforts and product acceptance by consumers; dependence upon third
party manufacturers and distributors; dependence upon management; competition;
currency fluctuation and international tariff and trade barriers; governmental
regulation; and possible liability for improper comparative advertising or
“Trade Dress”.
All forward-looking statements
attributable to us or persons acting on our behalf are expressly qualified in
their entirety by the cautionary statements set forth in this prospectus. Except
as required by law, we undertake no obligation to update any forward-looking
statement, whether as a result of new information, future events or
otherwise.
SUMMARY
The
Company
We are
Inter Parfums, Inc. We operate in the fragrance business, and manufacture,
market and distribute a wide array of fragrances and fragrance related products.
Organized under the laws of the State of Delaware in May 1985 as Jean Philippe
Fragrances, Inc., we changed our name to Inter Parfums, Inc. in July 1999. We
have also retained our brand name, Jean Philippe Fragrances, for some of our
mass-market products.
Our
worldwide headquarters and the office of our three (3) wholly-owned
subsidiaries, Jean Philippe Fragrances, LLC and Inter Parfums USA, LLC, both New
York limited liability companies, and Nickel USA, Inc., a Delaware corporation,
are located at 551 Fifth Avenue, New York, New York 10176, and our telephone
number is 212.983.2640.
Our
consolidated wholly-owned subsidiary, Inter Parfums Holdings, S.A., and its
majority-owned subsidiary, Inter Parfums, S.A., maintain executive offices at 4,
Rond Point des Champs Elysees, 75008 Paris, France. Our telephone number in
Paris is 331.5377.0000. Inter Parfums S.A. is also the majority owner of four
(4) distribution subsidiaries, Inter Parfums Limited, Inter Parfums Gmbh, Inter
Parfums srl and Inter España Parfums et Cosmetiques, SL, covering
territories in The United Kingdom, Germany, Italy and Spain, respectively.
Inter Parfums, S.A. also has a 100% owned subsidiary, Inter Parfums (Suisse)
S.A.
Our
common stock is listed on The Nasdaq Global Select Market under the trading
symbol “IPAR” and we are considered a “controlled company” under the applicable
rules of The Nasdaq Stock Market. The common shares of our subsidiary, Inter
Parfums S.A., are traded on the Euronext Exchange.
We
maintain our internet website at www.interparfumsinc.com which is linked to the
SEC Edgar database. You can obtain through our website, free of charge, our
annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on
Form 8-K, and amendments to those reports filed or furnished pursuant to Section
13(a) or 15(d) of the Exchange as soon as reasonably practicable after we have
electronically filed with or furnished them to the SEC.
Our
Business
The
following summary is qualified in its entirety by and should be read together
with the more detailed information and audited financial statements, including
the related notes, contained or incorporated by reference in this
prospectus.
We
operate in the fragrance business, and manufacture, market and distribute a wide
array of fragrances and fragrance related products. We manage our business in
two segments, European based operations and United States based operations. Our
prestige fragrance products are produced and marketed by our European operations
through our 75% owned subsidiary in Paris, Inter Parfums, S.A., which is also a
publicly traded company as 25% of Inter Parfums, S.A. shares trade on the
Euronext. Prestige cosmetics and prestige skin care products represent less than
3% of consolidated net sales.
We
produce and distribute our prestige products primarily under license agreements
with brand owners and European based prestige product sales represented 90% and
88% of net sales for the six months ended June 30, 2009 and 2008, respectively.
We have built a portfolio of brands, which include Burberry, Lanvin, Van Cleef &
Arpels, Paul Smith, S.T. Dupont, Quiksilver/Roxy and Nickel whose products are
distributed in over 120 countries around the world. Burberry is our most
significant license; sales of Burberry products represented 58% and 60% of net
sales for the six months ended June 30, 2009 and 2008,
respectively.
Our
specialty retail and mass-market fragrance and fragrance related products are
marketed through our United States operations and represented 10% and 12% of net
sales for the six months ended June 30, 2009 and 2008, respectively. These
products are sold under trademarks owned by us or pursuant to license or other
agreements with the owners of the Gap, Banana Republic, New York &
Company, Brooks Brothers, bebe and Jordache
trademarks.
Historically,
seasonality has not been a major factor for our Company. However, with the
commencement of operations in 2007 of our four majority-owned European
distribution subsidiaries and direct to retailer shipments of our specialty
retail product lines, sales are more concentrated in the second half of the
year.
We grow
our business in two distinct ways. First, we grow by adding new brands to our
portfolio, either through new licenses or out-right acquisitions of brands.
Second, we grow through the introduction of new products and supporting new and
established products through advertising, merchandising and sampling as well as
phasing out existing products that no longer meet the needs of our
consumers. The economics of developing, producing, launching and supporting
products influence our sales and operating performance each year. Our
introduction of new products may have some cannibalizing effect on sales of
existing products, which we take into account in our business
planning.
Our
business is not capital intensive, and it is important to note that we do not
own manufacturing facilities. We act as a general contractor and source our
needed components from our suppliers. These components are received at one of
our distribution centers and then, based upon production needs, the components
are sent to one of several third party fillers which manufacture the finished
good for us and ship it back to our distribution center.
As with
any business, many aspects of our operations are subject to influences outside
our control. These factors include the effect of the current
financial crisis and therefore the potential for further deterioration in
consumer spending and consumer debt levels, as well as the continued
availability of favorable credit sources and capital market conditions in
general. The recent economic challenges and uncertainties in a number of
countries where we do business, including the United States, have impacted our
business. This financial crisis is global in scale and has negatively
affected consumer demand, which is having an adverse impact on our distributors
and our retail customers. These events have led distributors and retailers to
carry less inventory than usual and have resulted in changes in their ordering
patterns for the products that we sell. The impact of this financial
crisis has been challenging for us thus far this year and is expected to
continue to be challenging for the remainder of 2009.
We have
reviewed our plans and have taken actions to mitigate the impact of these
conditions. We have adjusted, and we are continuing to adjust our
advertising and promotional budgets to align our spending with anticipated
sales. In addition, we have implemented cost saving initiatives to right size
our staff in an effort to maintain long-term profitable growth. As part of
our strategy, we plan to continue to make investments behind fast-growing
markets and channels to grow market share. While our business strategies
are designed to strengthen our Company over the long-term, we believe the
uncertainty about future market conditions, consumer spending patterns and the
financial strength of some of our customers, combined with the fact that
distributors and retailers are carrying less inventory, will negatively affect
our net sales and operating results.
In
addition to the ongoing global financial crisis, our reported net sales in
comparison to the corresponding periods of the prior year have been negatively
impacted by changes in foreign currency exchange rates caused by the
strengthening of the U.S. dollar since the fourth quarter of 2008. If the
current exchange rates persist or the U.S. dollar continues to strengthen, there
will be a continuing adverse impact on our net sales in 2009.
RISK
FACTORS
You
should carefully consider these risk factors before you decide to purchase or
sell shares of our common stock. These factors could cause our future results to
differ materially from those expressed or implied in forward-looking statements
made by us. The trading price of our common stock could decline due to any of
these risks, and you may lose all or part of your investment.
Our
business could be adversely affected by a prolonged downturn or recession in the
United States, Europe or other countries in which we conduct
business.
A prolonged economic downturn or
recession in the United States, Europe or any of the other countries in which we
do significant business could materially and adversely affect our business,
financial condition and results of operations. In particular, such a downturn or
recession could adversely impact (i) the level of spending by our ultimate
consumers, (ii) our ability to collect accounts receivable on a timely
basis from certain customers, (iii) our ability of certain suppliers to
fill our orders for raw materials, packaging or co-packed finished goods on a
timely basis, and (iv) the mix of our product sales.
Consumers
may reduce discretionary purchases of our products as a result of a general
economic downturn.
We believe that the high degree of
global economic uncertainty is expected to continue to have a negative effect on
consumer confidence, demand and spending. In addition, we believe that
consumer spending on beauty products is influenced by general economic
conditions and the availability of discretionary income. Accordingly, we may
experience sustained periods of declines in sales during periods of economic
downturn as it may affect customers’ purchasing patterns. In addition, a general
economic downturn may result in reduced traffic in our customers’ stores which
may, in turn, result in reduced net sales to our customers. Any resulting
material reduction in our sales could have a material adverse effect on our
business, financial condition and operating results.
Uncertainties
and continued deterioration in global credit markets could negatively impact
suppliers, customers and consumers, which could have an adverse impact on our
business as a whole.
Uncertainties and continued
deterioration in the global credit markets could negatively impact our
suppliers, customers and consumers which, in turn, could have an adverse impact
on our business. While, thus far, uncertainties in global credit markets have
not significantly affected our access to credit due to our strong credit rating,
a further deterioration in global financial markets could make future financing
difficult or more expensive. Such lack of credit or lack of credit on favorable
terms could have a material adverse effect on our business, financial condition
and operating results.
If
our intangible assets, such as trademarks and goodwill, become impaired we may
be required to record a significant non-cash charge to earnings which would
negatively impact our results of operations.
Under
United States generally accepted accounting principles, we review our intangible
assets, including our trademarks licenses and goodwill, for impairment annually
in the fourth quarter of each fiscal year, or more frequently if events or
changes in circumstances indicate the carrying value of our intangible assets
may not be fully recoverable. The carrying value of our intangible assets may
not be recoverable due to factors such as reduced estimates of future cash
flows, including those associated with the specific brands to which intangibles
relate, or slower growth rates in our industry. Estimates of future cash flows
are based on a long-term financial outlook of our operations and the specific
brands to which the intangible assets relate. However, actual performance in the
near-term or long-term could be materially different from these forecasts, which
could impact future estimates and the recorded value of the intangibles. Any
significant impairment to our intangible assets would result in a significant
charge to earnings in our financial statements during the period in which the
impairment is determined to exist.
We
are dependent upon Burberry for a significant portion of our sales, and the loss
of this license will have a material adverse effect on us.
Burberry is our most significant
license, as sales of Burberry products represented 56%, 54% and 57% of net sales
for the years ended December 31, 2008, 2007 and 2006,
respectively.
In October 2004 our Paris-based
subsidiary, Inter Parfums, S.A., entered into a 12.5-year, exclusive world-wide
fragrance license with Burberry Limited, effective as of July 1, 2004, which
replaced the original 1993 license. This license includes an additional
five-year optional term that requires the consent of both Burberry and Inter
Parfums, S.A., and must be exercised, if at all, prior to December 31, 2014. In
addition, Burberry has the right on December 31, 2011 to buy back the license at
its then fair market value. Further, this license provides for termination on a
change in control of either, Inter Parfums, S.A., the licensee, or Inter
Parfums, Inc., the guarantor.
This license is subject to Inter
Parfums, S.A. making required royalty payments (which are subject to certain
minimums), minimum advertising and promotional expenditures and meeting minimum
sales requirements. The loss of this license will have a material adverse effect
on us.
We
are dependent upon the continuation and renewal of various licenses and other
agreements for a significant portion of our sales, and the loss of one or more
licenses or agreements could have a material adverse effect on us.
All of our rights relating to prestige
fragrance brands, other than Lanvin, as well as all of our specialty retail
brands, are derived from licenses or other agreements from unaffiliated third
parties and our business is dependent upon the continuation and renewal of such
licenses and other agreements on terms favorable to us. Each license or
agreement is for a specific term and may have additional optional terms. In
addition, each license is subject to us making required royalty payments (which
are subject to certain minimums), minimum advertising and promotional
expenditures and meeting minimum sales requirements. Other agreements are
generally subject to meeting minimum sales requirements. Just as the loss of a
license or other significant agreement may have a material adverse effect on us,
a renewal on less favorable terms may also negatively impact us.
If
we are unable to protect our intellectual property rights, specifically
trademarks and brand names, our ability to compete could be negatively
impacted.
The
market for our products depends to a significant extent upon the value
associated with trademarks and brand names that we license, use or own. We own,
or have licenses or other rights to use, the material trademark and brand name
rights used in connection with the packaging, marketing and distribution of our
major products both in the United States and in other countries where such
products are principally sold. Therefore, trademark and brand name protection is
important to our business. Although most of our brand names are
registered in the United States and in certain foreign countries in which we
operate, we may not be successful in asserting trademark or brand name
protection. In addition, the laws of certain foreign countries may not protect
our intellectual property rights to the same extent as the laws of the United
States. The costs required to protect our trademarks and brand names may be
substantial.
The
success of our products is dependent on public taste.
Our revenues are substantially
dependent on the success of our products, which depends upon, among other
matters, pronounced and rapidly changing public tastes, factors which are
difficult to predict and over which we have little, if any, control. In
addition, we have to develop successful marketing, promotional and sales
programs in order to sell our fragrances and fragrance related products. If we
are not able to develop successful marketing, promotional and sales programs,
then such failure will have a material adverse effect on our business, financial
condition and operating results.
We
are subject to extreme competition in the fragrance industry.
The market for fragrances and fragrance
related products is highly competitive and sensitive to changing market
preferences and demands. Many of our competitors in this market (particularly in
the prestige fragrance industry) are larger than we are and have greater
financial resources than are available to us, potentially allowing them greater
operational flexibility. Our success in the prestige fragrance industry is
dependent upon our ability to continue to generate original strategies and
develop quality products that are in accord with ongoing changes in the
market.
In the specialty retail market we
primarily sell products directly to Gap and Banana Republic stores, New York
& Company stores, Brooks Brothers stores and bebe stores, so we do not have
any direct competition. However, such special retail stores compete directly
with other specialty retail stores such as Abercrombie & Fitch and Victoria
Secret, which thereby indirectly compete with us.
Our success with mass market fragrance
and fragrance related products is dependent upon our ability to competitively
price quality products and to quickly and efficiently develop and distribute new
products.
If there is insufficient demand for our
existing fragrances and fragrance related products, or if we do not develop
future strategies and products that withstand competition or we are unsuccessful
in competing on price terms, then we could experience a material adverse effect
on our business, financial condition and operating results.
We
are dependent upon specialty retailers to sell products that we develop for
their retail stores.
We have agreements in place for Gap and
Banana Republic brands, New York & Company brand, Brooks Brothers brand and
bebe brand. We are responsible for product development, formula creation,
packaging and manufacturing under all of those brands. Gap, a leading
international specialty retailer offering clothing, accessories and personal
care products for men, women, children and babies, New York & Company,
Retail Brand Alliance (for Brooks Brothers) and bebe Stores, Inc., for bebe
brand, are each responsible for marketing and selling the newly launched
fragrance and fragrance related products in their stores.
If the sales and marketing efforts of
those specialty retailers are not successful for the products that we have
developed, then our future growth potential could be negatively
impacted.
If
we are unable to acquire or license additional brands, or obtain the required
financing for these agreements and arrangements, then the growth of our business
could be impaired.
Our future expansion through
acquisitions or new product distribution arrangements, if any, will depend upon
the capital resources and working capital available to us. Further, in view of
the global banking crisis, we may be unable to obtain financing or credit that
we may require for additional licenses, acquisitions or other transactions. We
may be unsuccessful in identifying, negotiating, financing and consummating such
acquisitions or arrangements on terms acceptable to us, or at all, which could
hinder our ability to increase revenues and build our business.
We
may engage in future acquisitions that we may not be able to successfully
integrate or manage. These acquisitions may dilute our stockholders and cause us
to incur debt and assume contingent liabilities.
We continuously review acquisition
prospects that would complement our current product offerings, increase our size
and geographic scope of operations or otherwise offer growth and operating
efficiency opportunities. The financing, if available, for any of these
acquisitions could significantly dilute our stockholders and/or result in an
increase in our indebtedness. We may acquire or make investments in businesses
or products in the future, and such acquisitions may entail numerous integration
risks and impose costs on us, including:
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difficulties
in assimilating acquired operations or products, including the loss of key
employees from acquired businesses;
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diversion
of management’s attention from our core
business;
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adverse
effects on existing business relationships with suppliers and
customers;
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risks
of entering markets in which we have no or limited prior
experience;
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dilutive
issuances of equity securities;
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incurrence
of substantial debt;
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assumption
of contingent liabilities;
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incurrence
of significant amortization expenses related to intangible assets and the
potential impairment of acquired assets;
and
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incurrence
of significant immediate
write-offs.
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Our failure to successfully complete
the integration of any acquired business could have a material adverse effect on
our business, financial condition and operating results.
We
are dependent upon Messrs. Jean Madar and Philippe Benacin, and the loss of
their services could harm our business.
Jean Madar, our Chief Executive
Officer, and Philippe Benacin, our President and Chief Executive Officer of
Inter Parfums, S.A., are responsible for day-to-day operations as well as major
decisions. Termination of their relationships with us, whether through death,
incapacity or otherwise, could have a material adverse effect on our operations,
and we cannot assure you that qualified replacements can be found. We maintain
key man insurance on the life of Mr. Benacin ($3.6 million) and are seeking to
acquire a nominal amount of key man insurance on the life of Mr.
Madar. However, we cannot assure you that we would be able to retain
suitable replacements for either Mr. Madar or Mr. Benacin.
Our
reliance on third party manufacturers could have a material adverse effect on
us.
We rely on outside sources to
manufacture our fragrances and cosmetics. The failure of such third party
manufacturers to deliver either components or finished goods on a timely basis
could have a material adverse effect on our business. Although we believe there
are alternate manufacturers available to supply our requirements, we cannot
assure you that current or alternative sources will be able to supply all of our
demands on a timely basis. We do not intend to develop our own manufacturing
capacity. As these are third parties over which we have little or no
control, the failure of such third parties to provide components or finished
goods on a timely basis could have a material adverse effect on our business,
financial condition and operating results.
Our
reliance on third party distributors could have a material adverse effect on
us.
We sell a substantial percentage of our
prestige fragrances through independent distributors specializing in luxury
goods. Given the growing importance of distribution, we have begun to modify our
distribution model by the formation of joint ventures or company owned
subsidiaries within key markets. We have little or no control over third party
distributors and the failure of such third parties to provide services on a
timely basis could have a material adverse effect on our business, financial
condition and operating results. In addition, if we replace existing
third party distributors with new third party distributors or with our own
distribution arrangements, then transition issues could have a material adverse
effect on our business, financial condition and operating results.
The
loss of or disruption in our distribution facilities could have a material
adverse effect on our business, financial condition and operating
results.
We currently have one distribution
facility in Paris and one in New Jersey. The loss of one or both of those
facilities, as well as the inventory stored in those facilities, would require
us to find replacement facilities and assets. In addition, terrorist attacks, or
weather conditions, such as natural disasters, could disrupt our distribution
operations. If we cannot replace our distribution capacity and inventory in a
timely, cost-efficient manner, it could have a material adverse effect on our
business, financial condition and operating results.
The
international character of our business renders us subject to fluctuation in
foreign currency exchange rates and international trade tariffs, barriers and
other restrictions.
A portion of our European operations’
net sales (approximately 34% in 2008) are sold in U.S. dollars. In an effort to
reduce our exposure to foreign currency exchange fluctuations, we engage in a
program of cautious hedging of foreign currencies to minimize the risk arising
from operations. Despite such actions, fluctuations in foreign currency exchange
rates for the U.S. dollar, particularly with respect to the Euro, could have a
material adverse effect on our operating results. Possible import, export,
tariff and other trade barriers, which could be imposed by the United States,
other countries or the European Union might also have a material adverse effect
on our business.
Our
business is subject to governmental regulation, which could impact our
operations.
Fragrances and fragrance related
products must comply with the labeling requirements of the Federal Food, Drug
and Cosmetics Act as well as the Fair Packaging and Labeling Act and their
regulations. Some of our color cosmetic products may also be classified as a
“drug”. Additional regulatory requirements for products which are “drugs”
include additional labeling requirements, registration of the manufacturer and
the semi-annual update of a drug list.
Our fragrances are subject to the
approval of the Bureau of Alcohol, Tobacco and Firearms as a result of the use
of specially denatured alcohol. So far we have not experienced any
difficulties in obtaining the required approvals.
Our fragrances and fragrance related
products that are manufactured in France are subject to certain regulatory
requirements of the European Union, but as of the date of this report, we have
not experienced any material difficulties in complying with such
requirements.
However, we cannot assure you that,
should we develop or market fragrances and fragrance related products with
different ingredients, or should existing regulations or requirements be
revised, we would not in the future experience difficulty in complying with such
requirements, which could have a material adverse effect on our results of
operations.
We
may become subject to possible liability for improper comparative advertising or
“Trade Dress.”
Brand name manufacturers and sellers of
brand name products may make claims of improper comparative advertising or trade
dress (packaging) with respect to the likelihood of confusion between some of
our mass market products and those of brand name manufacturers and sellers. They
may seek damages for loss of business or injunctive relief to seek to have the
use of the improper comparative advertising or trade dress
halted. However, we believe that our displays and packaging
constitute fair competitive advertising and are not likely to cause confusion
between our products and others. Further, we have not experienced to any
material degree, any of such problems to date.
USE OF
PROCEEDS
We will
not receive any of the proceeds of the sale by the selling security holders of
the shares of common stock covered by this prospectus. We will only receive
proceeds from the exercise of the options, and we will use such funds for
working capital purposes.
SELLING
SECURITY HOLDERS
This
prospectus relates to periodic offers and sales of up to 171,900 shares of our
common stock by the selling security holders listed and described below and
their pledgees, donees and other successors in interest. All selling security
holders are either our officers, directors or employees and these options were
granted to these individuals as compensation. The following table sets
forth,
· the
name of each selling security holder,
· the
number of shares beneficially owned, and
· the
number of shares being registered for resale by each selling security
holder.
We may
amend or supplement this prospectus from time to time to update the disclosure
set forth in this prospectus. All of the shares being registered for resale
under this prospectus for the selling security holders may be offered hereby.
Because the selling security holders may sell some or all of the shares owned by
them which are included in this prospectus, and because there are currently no
agreements, arrangements or understandings with respect to the sale of any of
the shares, no estimate can be given as to the number of shares being offered
hereby that will be held by the selling security holders upon termination of any
offering made hereby. We have, therefore, for the purposes of the following
table assumed that the selling security holders will, if applicable, exercise
the options described below, and sell all of the shares owned by them which are
being offered hereby, but will not sell any other shares of our common stock
that they presently own. Beneficial ownership is determined in accordance with
the rules of the Securities and Exchange Commission and generally includes
securities over which an individual or entity has voting or investment power and
includes any securities which the person or entity has the right to acquire
within 60 days through the conversion or exercise of any security or other
right.
Each
selling security holder will own less than 1% of our issued and outstanding
common stock after the sale of the shares we are registering. Unless otherwise
stated, all beneficially owned shares of common stock are issuable upon exercise
of options, with sole voting power and sole power to dispose. The information as to the
number of shares of our common stock owned by each selling security holder is
based upon the information contained in a record list of our stockholders and
option holders at August 7,
2009.
|
Name
of Selling Shareholder
|
|
Number
of Shares
Beneficially
Owned
|
|
|
Shares
to be
Offered
|
|
|
Shares
to be Owned
After
Offering
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alex
Canavan
|
|
|
7,500 |
|
|
|
6,000 |
|
|
|
1,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andy
Clarke
|
|
|
20,675 |
1
|
|
|
7,500 |
|
|
|
13,175 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bonita
Baker
|
|
|
2,325 |
|
|
|
1,800 |
|
|
|
525 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bruce
Campbell
|
|
|
7,500 |
|
|
|
6,000 |
|
|
|
1,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dariel
Torres
|
|
|
1,905 |
|
|
|
1,500 |
|
|
|
405 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Detrice
Felton
|
|
|
1,725 |
|
|
|
1,350 |
|
|
|
375 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dwayne
Williams
|
|
|
3,000 |
|
|
|
2,400 |
|
|
|
600 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Eduardo
Hermosilla
|
|
|
3,750 |
|
|
|
3,000 |
|
|
|
750 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Francois
Heilbronn
|
|
|
73,688 |
2
|
|
|
3,000 |
|
|
|
70,688 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Javier
Paredes
|
|
|
2,100 |
|
|
|
1,650 |
|
|
|
450 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jean
Levy
|
|
|
7,125 |
3
|
|
|
3,000 |
|
|
|
4,125 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Juan
Morales
|
|
|
2,100 |
|
|
|
1,650 |
|
|
|
450 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kiet
Huynh
|
|
|
7,500 |
|
|
|
6,000 |
|
|
|
1,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lynn
Konko
|
|
|
3,750 |
|
|
|
3,000 |
|
|
|
750 |
|
1 Consists
of 5,675 shares held directly and options to purchase 15,000
shares.
2 Consists
of 45,563 shares held directly, 22,500 shares held indirectly by his children
and options to purchase 5,625 shares.
3 Consists
of 1,500 shares held directly and options to purchase 5,625
shares.
|
Melissa
Corcoran
|
|
|
3,750 |
|
|
|
3,000 |
|
|
|
750 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael
Hamerling
|
|
|
3,750 |
|
|
|
3,000 |
|
|
|
750 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael
Martin
|
|
|
1,515 |
|
|
|
1,200 |
|
|
|
315 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michel
Bes
|
|
|
3,900 |
|
|
|
3,000 |
|
|
|
900 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michelle
Habert
|
|
|
7,500 |
|
|
|
6,000 |
|
|
|
1,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Philippe
Santi
|
|
|
40,500 |
4
|
|
|
22,500 |
|
|
|
18,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rita
Gayed
|
|
|
1,725 |
|
|
|
1,350 |
|
|
|
375 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Robert
Bensoussan
|
|
|
13,125 |
5
|
|
|
3,000 |
|
|
|
10,125 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Russell
Greenberg
|
|
|
121,500 |
6
|
|
|
75,000 |
|
|
|
46,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sandra
Johnson
|
|
|
1,500 |
|
|
|
1,200 |
|
|
|
300 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Serge
Rosinoer
|
|
|
15,114 |
7
|
|
|
3,000 |
|
|
|
12,114 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Yolette
Jacques
|
|
|
2,250 |
|
|
|
1,800 |
|
|
|
450 |
|
Russell
Greenberg, Philippe Santi, Francois Heilbronn, Jean Levy, Robert Bensoussan and
Serge Rosinoer are members of our board of directors. Russell Greenberg,
Philippe Santi and Andy Clarke are also executive officers of our company. All
of the other selling shareholders are our employees.
All of the shares being registered for
Messrs. Heilbronn, Levy, Bensoussan and Rosinoer are issuable upon
the exercise of options granted to these individuals under our 2004 Non-Employee
Director Stock Option Plan.
The remaining shares being registered
are issuable upon the exercise of options granted under either our 1999 Stock
Option Plan or our 2004 Stock Option Plan.
STOCK
OPTION PLANS
EMPLOYEE
STOCK OPTION PLANS
The
selling security holders who are not nonemployee directors were granted stock
options under our 1999 Stock Option Plan or our 2004 Stock Option Plan , which
is a successor plan to the 1999 Stock Option Plan.
4 Consists
of shares of common stock underlying options.
5 Consists
of 7,500 shares held directly and options to purchase 5,625 shares.
6 Consists
of 27,000 shares held directly and options to purchase 94,500
shares.
7 Consists
of 10,050 shares held directly and options to purchase 5,064
shares.
Employee
Stock Option Plan Overview
Under our
employee stock option plans, "incentive stock options" may be granted to key
employees, including officers and directors who are employees, and nonqualified
stock options and/or stock appreciation rights may be granted to key employees,
officers, directors and consultants.
The
purpose of our employee stock option plans are to aid us in attracting and
retaining key employees, directors and consultants and to secure for us the
benefits of the incentive inherent in equity ownership by such persons who are
responsible for our continuing growth and success.
Administration
Our
employee stock option plans are administered by the Executive Compensation and
Stock Option Committee of our Board of Directors (the “Committee”). None of the
Committee members are eligible to participate under these plans.
Grants
of Options
Our
committee has the authority under the employee stock option plans to determine
the terms of options and/or stock appreciation rights granted under the plans,
including, among other things, whether an option shall be an incentive or a
nonqualified stock option, the individuals who shall receive them, whether a
stock appreciation right shall be granted separately, in tandem with or in
addition to options, the number of shares to be subject to each option and/or
stock appreciation right, the date or dates each option or stock appreciation
right shall become exercisable and the exercise price or base price of each
option and stock appreciation right; provided, however, that the exercise price
of an incentive stock option may not be less than 100% of the fair market value
of the common stock on the date of grant and not less than 110% of the fair
market value in the case of an optionee who at the time of grant owns more than
10% of our total combined voting power or of any of our
subsidiaries.
Terms
and Conditions of Options
The
options and stock appreciation rights granted under our employee stock option
plans are subject to, among other things, the following terms and
conditions:
(a) Options
and stock appreciation rights may be granted for terms determined by our
committee, provided, however, that the term of an incentive stock option may not
exceed ten (10) years, and in the case of an optionee who at the time of grant
owns more than ten percent (10%) of our combined voting power or of any of our
subsidiaries, the term of an incentive option may not exceed five (5) years.
Commencing in 2006, the Committee has granted options which vest 20% each year
one year after the date of grant, so that each option shall become fully vested
and exercisable on the fifth year from the date of grant.
(b) Options
are payable in full upon exercise or, in the discretion of our committee,
installments. Payment of the exercise price of an option may be made, in the
discretion of our committee, in cash, in shares of common stock or any
combination thereof.
(c) Options
and stock appreciation rights may not be transferred other than by will or by
the laws of descent and distribution, and may be exercised during the employee's
lifetime only by him or her.
(d) If
the employment of the holder of an incentive option is terminated for any reason
other than death or a permanent and total disability, then the incentive option
may be exercised, to the extent exercisable by the holder at the time of
termination of employment, within three (3) months thereafter, but in no event
after expiration of the term of the incentive option. However, if employment was
terminated either for cause or without our consent, then such option shall
terminate immediately. Any and all nonqualified stock options or stock
appreciation rights granted shall terminate simultaneously with the termination
of association of the holder of such nonqualified option or stock appreciation
right with us for any reason other than the death or permanent and total
disability of such holder.
(e) In
the case of the death or disability of the holder of an option and/or stock
appreciation right while employed (or death within three (3) months after
termination of employment), his or her legal representative or beneficiaries may
exercise the option, within twelve (12) months after the date of such death or
disability, but in no event after the expiration of the term of the option
and/or stock appreciation right.
(f) The
holder is required to pay us the amount we determine is necessary to meet our
obligation to withhold federal, state and local taxes incurred by reason of the
exercise of a nonqualified stock option or the disqualifying disposition of
shares acquired upon the exercise of an incentive stock option.
Option
Contracts
Each
option and/or stock appreciation right is evidenced by a written contract
between us and the employee receiving the grant. Such contract may provide,
among other things, that (a) the holder agrees to remain in our employ, at our
election, for the later of (i) the period of time determined by our committee at
or before the time of grant or (ii) the date to which he is then contractually
obligated to remain associated with us, and (c) the optionee will notify us of
any disqualifying disposition of shares acquired pursuant to the exercise of an
incentive stock option and pay any required withholding or other
tax.
Adjustment
in Event of Capital Changes
Appropriate
adjustments shall be made in the number and kind of shares available under our
employee stock option plans, in the number and kind of shares subject to each
outstanding option and stock appreciation right and in the exercise prices and
base prices thereof in the event of any change in our common stock by reason of
any stock dividend, recapitalization, merger, consolidation, reorganization,
split-up, combination or exchange of shares or the like.
Duration
and Amendment of the Plans
No option
may be granted pursuant to our employee stock option plans more than 10 years
after the date of the plan pursuant to which the option was
granted. Our full Board of Directors or the committee may at any time
terminate or amend our employee stock option plans; provided, however, that
without the approval of our stockholders, no amendment may be made which would
(a) increase the maximum number of shares available for the grant of options
(except the anti-dilution adjustments described above), (b) otherwise materially
increase the benefits accruing to participants under our employee stock option
plans or (c) change the eligibility requirements for employees who may receive
options.
Federal
Income Tax Treatment
The
following is a general summary of the federal income tax consequences under
current tax law of incentive stock options, nonqualified stock options and stock
appreciation rights. It does not purport to cover all of the special rules,
including special rules relating to optionees subject to Section 16(b) of the
Securities Exchange Act of 1934, as amended, and the exercise of an option with
previously-acquired shares, or the state or local income or other tax
consequences inherent in the ownership and exercise of stock options and the
ownership and disposition of the underlying shares.
An
optionee will not recognize taxable income for federal income tax purposes upon
the grant of an incentive stock option, a nonqualified stock option or a stock
appreciation right. In the case of an incentive stock option, no taxable income
is recognized upon exercise of the option. If the optionee disposes of the
shares acquired pursuant to the exercise of an incentive stock option more than
two (2) years after the date of grant and more than one (1) year after the
transfer of the shares to him or her, the optionee will recognize long-term
capital gain or loss and we will not be entitled to a deduction. However, if the
optionee disposes of such shares within the required holding period, a portion
of his or her gain will be treated as ordinary income and we will generally be
entitled to deduct such amount.
Upon the
exercise of a nonqualified stock option, the optionee recognizes ordinary income
in an amount equal to the excess, if any, of the fair market value of the shares
acquired on the date of exercise over the exercise price thereof, and we are
generally entitled to a deduction for such amount on the date of exercise so
long as we properly withhold income taxes thereon. If the optionee later sells
shares acquired pursuant to the nonqualified stock option, he or she will
recognize long-term or short-term capital gain or loss.
In the
case of a stock appreciation right, the optionee recognizes ordinary income and
we may deduct an amount equal to the excess, if any, of the fair market value of
the shares of our common stock on the exercise date over the base price
thereof.
In
addition to the federal income tax consequences described above, an optionee may
be subject to the alternative minimum tax, which is payable to the extent it
exceeds the optionee's regular tax. For this purpose, upon the exercise of an
incentive stock option, the excess of the fair market value of the shares over
the exercise price therefor is a tax preference item. In addition, the
optionee's basis in such shares is increased by such amount for purposes of
computing the gain or loss on the disposition of the shares for alternative
minimum tax purposes. If an optionee is required to pay an alternative minimum
tax, the amount of such tax which is attributable to deferral preferences
(including the incentive stock option preference) is allowed as a credit against
the optionee's regular tax liability in subsequent years. To the extent the
credit is not used, it is carried forward.
NONEMPLOYEE
DIRECTORS PLAN
The
selling security holders who are not our employees serve as our nonemployee
directors and were granted stock options under our 2004 Nonemployee Director
Stock Option Plan (the “2004 Plan”).
Option
Grants and Outstanding Options
We
maintain this stock option plan for our nonemployee directors, and the purpose
of this plan is to assist us in attracting and retaining key directors who are
responsible for continuing the growth and success of our Company. On each
February 1st,
options to purchase 1,000 shares are granted to each nonemployee
directors.
On the
date each individual first becomes a nonemployee director he is granted a
nonqualified stock option to purchase 2,000 shares. However, no option will be
granted on any February 1st grant date to any nonemployee director who first
becomes a nonemployee director within six months prior to such February 1st
grant date. All options are granted with an exercise price equal to the fair
market value on the date of grant.
Terms
and Conditions of Options
Each
option granted under our nonemployee director plan has a term of five (5) years,
except that such terms may be for a shorter period in certain instances. Options
granted on or after June 19, 2006 vest ratably over a 4 year
period.
If a
nonemployee director to whom an option has been granted under our nonemployee
director plans ceases to serve on the Board, otherwise than by reason of death
or disability, then his option may be exercised (to the extent that the
nonemployee director was entitled to do so at the time of cessation of service)
at any time within three (3) months after such cessation of service, but in no
event after the original expiration date.
If a
nonemployee director to whom an option has been granted under our nonemployee
director plans dies while he is serving on the Board or within three (3) months
after ceasing to serve as a member of our Board, then such option may be
exercised by the legatee or legatees of such option under the nonemployee
director's last will, or by his personal representatives or distributed, at any
time within one (1) year after his death, but in no event after the date on
which, except for such death, the option would otherwise expire.
Amendment
of the Nonemployee Director Plans
Our full
Board of Directors may amend, suspend or terminate our nonemployee director
plans or any portion thereof at any time but may not, without the approval of
our stockholders within twelve (12) months before or after the date of adoption
of any such amendment or amendments, make any alteration or amendment thereof
which (a) makes any change in the class of eligible participants; (b) increases
the total number of shares of our common stock for which options may be granted
under the nonemployee director plans except in the event of any change in our
common stock by reason of any stock dividend, recapitalization, merger,
consolidation, reorganization, split-up, combination or exchange of shares or
the like; (c) extend the term of the nonemployee director plans or the maximum
option period provided under the plans; (d) decreases the option price; or (e)
materially increases the benefits accruing to participants under the nonemployee
director stock option plans. The nonemployee director plans cannot be amended
more than once every six (6) months, except to comply with changes in the
Internal Revenue Code, Employee Retirement Income Security Act or the rules
thereunder.
PLAN OF
DISTRIBUTION
The
shares offered hereby by the selling security holders may be sold from time to
time by the selling security holders, or by pledgees, donees, transferees or
other successors in interest. These sales may be made on one or more exchanges,
the Nasdaq Global Select Market, or in the over-the-counter market including or
otherwise at prices and at terms then prevailing or at prices related to the
then current market price, or in negotiated transactions. The shares may be sold
by one or more of the following methods, including, without
limitation:
|
|
·
|
a
block trade in which the broker-dealer so engaged will attempt to sell the
shares as agent, but may position and resell a portion of the block as
principal to facilitate the
transaction;
|
|
|
·
|
purchases
by a broker or dealer as principal and resale by a broker or dealer for
its account under this prospectus;
|
|
|
·
|
face-to-face
or other direct transactions between the selling security holders and
purchasers without a broker-dealer or other intermediary;
and
|
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker solicits
purchasers.
|
In
effecting sales, brokers or dealers engaged by the selling security holders may
arrange for other brokers or dealers to participate in the resales. Brokers,
dealers or agents may receive compensation in the form of commissions, discounts
or concessions from selling security holders in amounts to be negotiated in
connection with the sale. These broker-dealers and agents and any other
participating broker-dealers, or agents may be deemed to be “underwriters”
within the meaning of the Securities Act of 1933, as amended, in connection with
the sales. In addition, any securities covered by this prospectus that qualify
for sale under Rule 144 promulgated under the Securities Act of 1933 might be
sold under Rule 144 rather than under this prospectus.
In
connection with distributions of the shares or otherwise, certain selling
security holders may enter into hedging transactions with broker-dealers. In
connection with the transactions, broker-dealers may engage in short sales of
the shares registered hereunder in the course of hedging the positions they
assume with selling security holders. Certain of the selling security holders
may also sell shares short and deliver the shares to close out the positions.
The selling security holders may also enter into option or other transactions
with broker-dealers which require the delivery to the broker-dealer
of the shares registered hereunder, which the broker-dealer may
resell under this prospectus. The selling security holders may also pledge the
shares registered hereunder to a broker or dealer and upon a default, the broker
or dealer may effect sales of the pledged shares under this
prospectus.
Information
as to whether an underwriter(s) who may be selected by the selling security
holders, or any other broker-dealer, is acting as principal or agent for the
selling security holders, the compensation to be received by underwriters who
may be selected by the selling security holders, or any broker-dealer, acting as
principal or agent for the selling security holders and the compensation to be
received by other broker-dealers, in the event the compensation of other
broker-dealers is in excess of usual and customary commissions, will, to the
extent required, be set forth in a supplement to this prospectus. Any dealer or
broker participating in any distribution of the shares may be required to
deliver a copy of this prospectus, including the supplement, if any, to any
person who purchases any of the shares from or through a dealer or
broker.
We have
advised the selling security holders that during the time as they may be engaged
in a distribution of the shares included herein they are required to comply with
Regulation M of the Securities Exchange Act of 1934. With certain exceptions,
Regulation M precludes any selling security holders, any affiliated purchasers
and any broker-dealer or other person who participates in the distribution from
bidding for or purchasing, or attempting to induce any person to bid for or
purchase any security which is the subject of the distribution until the entire
distribution is complete. Regulation M also prohibits any bids or purchase made
in order to stabilize the price of a security in connection with the
distribution of that security. All of the foregoing may affect the marketability
of our common stock.
An
investor may purchase the common stock offered under this prospectus only if
such shares are qualified for sale or are exempt from registration under the
applicable securities laws of the state in which such prospective purchaser
resides. We have not registered or qualified the shares under any state
securities laws and, unless the sale of such shares to a particular investor is
exempt from registration or qualification under applicable state securities
laws, the sale of such shares to an investor may not be effected until such
shares have been registered or qualified with applicable state securities
authorities.
Sales of
securities by us and the selling security holders or even the potential of these
sales may have a negative effect on the market price for shares of our common
stock.
DESCRIPTION
OF SECURITIES
Common
Stock
As of
August 7, 2009 we had 30,060,839 shares of our common stock outstanding. Each
share of our common stock will entitle the holder of such share to one vote.
None of the company’s shareholders have cumulative voting rights. Holders of
shares of our common stock are entitled to vote on all matters.
All
outstanding shares of common stock are, and all shares of common stock to be
outstanding upon completion of this offering will be, validly authorized and
issued, fully paid, and non-assessable.
The
holders of common stock are entitled to one vote for each share held of record
on all matters submitted to a vote of stockholders. Holders of common stock are
entitled to receive ratably such dividends as may be declared by the board of
directors out of funds legally available therefor. In the event of our
liquidation, dissolution, or winding up, holders of our common stock are
entitled to share ratably in all of our assets remaining after payment of
liabilities and liquidation preferences of any outstanding shares of preferred
stock. Holders of common stock have no preemptive rights or other subscription
rights to convert their shares into any other securities.
The following selected financial data
have been derived from our financial statements, and should be read in
conjunction with those financial statements, including the related
footnotes.
|
|
|
Years
Ended December 31,
|
|
|
(In
thousands except per share data)
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income
Statement Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
Income per Share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
.
78
|
|
|
$
|
.78
|
|
|
$
|
.58
|
|
|
$
|
.51
|
|
|
$
|
.55
|
|
|
Diluted
|
|
$
|
.77
|
|
|
$
|
.76
|
|
|
$
|
.58
|
|
|
$
|
.50
|
|
|
$
|
.51
|
|
|
Average
Common Shares Outstanding:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
30,621
|
|
|
|
30,666
|
|
|
|
30,486
|
|
|
|
30,117
|
|
|
|
28,808
|
|
|
Diluted
|
|
|
30,778
|
|
|
|
31,004
|
|
|
|
30,853
|
|
|
|
30,731
|
|
|
|
30,741
|
|
|
|
|
|
|
|
(In
thousands except per share data)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance
Sheet And Other Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividends
per Share
|
|
$ |
0.133 |
|
|
$ |
0.133 |
|
|
$ |
0.107 |
|
|
$ |
0.107 |
|
|
$ |
.08 |
|
Dividends
In December 2006, our board of
directors increased our cash dividend from $.107 to $.133 per share per annum,
payable $.033 on a quarterly basis. In December 2007 and again in December 2008,
our board of directors authorized the continuation of our cash dividend of $.133
per share per annum, payable $.033 on a quarterly basis. The first cash dividend
for 2009 of $.033 per share was payable on April 15, 2009 to shareholders
of record on March 31, 2009.
Our
Certificate of Incorporation provides for the requirement of unanimous approval
of the members of our board of directors for the declaration or payment of
dividends, if the aggregate amount of dividends to be paid by us and our
subsidiaries in any fiscal year is more than thirty percent (30%) of our annual
net income for the last completed fiscal year, as indicated by our consolidated
financial statements.
Preferred
Stock
We also
have 1,000,000 authorized shares of preferred stock, $.001 par value per share,
none of which are outstanding.
Our Board
of Directors has the authority, without further action by our stockholders, to
issue 1,000,000 shares of preferred stock, in one or more series and to fix the
privileges and rights of each series. These privileges and rights may be greater
than those of the common stock. As of the date of this Prospectus, we do not
have any shares of preferred stock outstanding. Our Board of Directors, without
further shareholder approval, can issue preferred stock with voting, conversion
or other rights that could adversely affect the voting power and other rights of
the holders of common stock. This type of “blank check preferred stock” makes it
possible for us to issue preferred stock quickly with terms calculated to delay
or prevent a change in our control or make removal of our management more
difficult.
TRANSFER
AGENT
The
transfer agent and registrar for our common stock is American Stock Transfer
& Trust Company, located at 59 Maiden Lane, New York, New York
10038.
LEGAL
MATTERS
The
validity of the shares of common stock which are originally offered under the
registration statement of which this reoffer prospectus forms a part will be
passed on for us by GrayRobinson, P.A., Ft. Lauderdale, Florida.
EXPERTS
The
consolidated financial statements and the related financial statement schedule
of Inter Parfums, Inc., and subsidiaries as of December 31, 2008 and December
31, 2007, and for each of the years in the three-year period ended December 31,
2008, and management's assessment of the effectiveness of internal controls over
financial reporting as of December 31, 2008 included in Inter Parfums, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 2008, have been
incorporated by reference herein and in the registration statement in reliance
upon the reports of Mazars LLP, independent registered public accounting firm,
and upon the authority of said firm as experts in accounting and
auditing.
DOCUMENTS
INCORPORATED BY REFERENCE
The
following documents previously filed with the Securities and Exchange Commission
are incorporated herein by reference:
|
|
·
|
Our
Annual Report on Form 10-K for the fiscal year ended December 31,
2008.
|
|
|
|
|
|
|
·
|
Our
Amendment No. 1 on Form 10-K/A to our Annual Report on Form
10-K for the fiscal year ended December 31,
2008.
|
|
|
·
|
Our
Current Report on Form 8-K date of report, March 11,
2009.
|
|
|
·
|
Our
Current Report on Form 8-K date of report, April 23,
2009.
|
|
|
|
|
|
|
·
|
Our
Current Report on Form 8-K date of report, May 11,
2009.
|
|
|
|
|
|
|
·
|
Our
Quarterly Report on Form 10-Q for the quarter ended March 31,
2009.
|
|
|
|
|
|
|
·
|
Our
Current Report on Form 8-K date of report, July 23,
2009.
|
|
|
|
|
|
|
·
|
Our
Current Report on Form 8-K date of report, August 10
, 2009.
|
|
|
|
|
|
|
·
|
Our
Quarterly Report on Form 10-Q for the period ended June 30,
2009.
|
|
|
|
|
|
|
·
|
All
documents that we file with the Commission pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus
and prior to the termination of the offering shall be deemed to be
incorporated by reference into this prospectus from the date of the filing
of such documents.
|
Any
statement contained in a document incorporated by reference shall be deemed to
be modified or superseded for purposes of this prospectus to the extent that a
statement contained in a later document modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed to constitute a part
of this prospectus, except as so modified or superseded.
We will
provide, without charge, a copy of any document incorporated by reference in
this prospectus but which is not delivered with this prospectus to any person to
whom this prospectus has been delivered upon the oral or written request of that
person. Requests should be directed to the attention of the Corporate Secretary,
Inter Parfums, Inc., 551 Fifth Avenue, New York, New York 10167. Our telephone
number is 212.983.2640.
WHERE YOU
CAN FIND MORE INFORMATION ABOUT US
We are
subject to the reporting requirements of the Securities Exchange Act of 1934,
and we file reports, proxy statements and other information with the Securities
Exchange Commission. These reports, proxy statements and other information can
be inspected and copied at the Public Reference Room of the SEC, 100 F Street,
N.E., Washington, D.C. 20549, at prescribed rates. The SEC maintains a website,
www.sec.gov, which contains reports, proxy and information statements and other
information regarding registrants, including us, that file electronically with
the SEC. In addition, you may obtain information from the Public Reference Room
by calling the SEC at 1-800-SEC-0330. Our common stock is quoted on the Nasdaq
Global Market System. Our reports, proxy statements, informational statements
and other information can be inspected at the offices of the National
Association of Securities Dealers, Inc. at 1735 K Street, N.W., Washington, D.C.
20006.
We have
filed with the Commission a registration statement on Form S-8 under the
Securities Act with respect to the our common stock being offered pursuant to
this prospectus. This prospectus, which is a part of the registration statement,
does not contain all of the information set forth in the registration statement
and its exhibits. For further information with respect to us and the common
stock offered hereby, please refer to the registration statement and its
exhibits.
We
maintain our internet website at www.interparfumsinc.com which is linked to the
SEC Edgar database. Information contained in our website, other than reports
filed with the SEC, is not a part of this prospectus. You can obtain through our
website, free of charge, our annual reports on Form 10-K, quarterly reports on
Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or
furnished pursuant to Section 13(a) or 15(d) of the Exchange as soon as
reasonably practicable after we have electronically filed with or furnished them
to the SEC.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference.
The
following documents previously filed with the Securities and Exchange Commission
are incorporated herein by reference:
|
|
·
|
Our
Annual Report on Form 10-K for the fiscal year ended December 31,
2008.
|
|
|
·
|
Our
Amendment No. 1 on Form 10-K/A to our Annual Report on Form
10-K for the fiscal year ended December 31,
2008.
|
|
|
·
|
Our
Current Report on Form 8-K date of report, March 11,
2009.
|
|
|
·
|
Our
Current Report on Form 8-K date of report, April 23,
2009.
|
|
|
·
|
Our
Current Report on Form 8-K date of report, May 11,
2009.
|
|
|
·
|
Our
Quarterly Report on Form 10-Q for the quarter ended March 31,
2009.
|
|
|
·
|
Our
Current Report on Form 8-K date of report, July 23,
2009.
|
|
|
·
|
Our
Current Report on Form 8-K date of report, August 10
, 2009.
|
|
|
·
|
Our
Quarterly Report on Form 10-Q for the period ended June 30,
2009.
|
|
|
·
|
All
documents that we file with the Commission pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus
and prior to the termination of the offering shall be deemed to be
incorporated by reference into this prospectus from the date of the filing
of such documents.
|
Item 4.
Description of Securities.
Not
applicable.
Item 5.
Interests of Named Experts and Counsel.
Not
applicable.
Item 6.
Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law authorizes a court to award, or a
corporation’s board of directors to grant, indemnity to directors and officers
in terms sufficiently broad to permit such indemnification under certain
circumstances for liabilities (including reimbursement for expenses incurred)
arising under the Securities Act of 1933, as amended (the “Securities
Act”).
As
permitted by Section 145 of the Delaware General Corporation Law, Registrant’s
Certificate of Incorporation includes a provision that eliminates the personal
liability of its directors for monetary damages for breach of fiduciary duty as
a director, except for liability:
|
|
-
|
for
any breach of the director’s duty of loyalty to Registrant or its
stockholders;
|
|
|
-
|
for
acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of the law;
|
|
|
-
|
under
Section 174 of the Delaware General Corporation Law regarding unlawful
dividends and stock purchases; and
|
|
|
-
|
for
any transaction from which the director derived an improper personal
benefit.
|
As
permitted by the Delaware General Corporation Law, Registrant’s bylaws provide
that:
|
|
-
|
Registrant
is required to indemnify its directors and officers to the fullest extent
permitted by the Delaware General Corporation Law, subject to limited
exceptions;
|
|
|
-
|
Registrant
may indemnify its other employees and agents to the extent that it
indemnifies its officers and directors, unless otherwise required by law,
its certificate of incorporation, its bylaws or agreements to which it is
a party;
|
|
|
-
|
Registrant
is required to advance expenses, as incurred, to its directors and
officers in connection with a legal proceeding to the fullest extent
permitted by the Delaware General Corporation Law, subject to limited
exceptions; and
|
|
|
-
|
the
rights conferred in the Bylaws are not
exclusive.
|
Registrant
maintains directors’ and officers’ liability insurance and intends to extend
that coverage for public securities matters.
See also
the undertakings set out in response to Item 9.
Item 7.
Exemption from Registration Claimed.
Not
applicable.
Item 8.
Exhibits.
|
Number
|
|
Description
|
|
|
|
|
|
4.1
|
|
1999
Stock Option Plan, as Amended (filed herewith)
|
|
4.2
|
|
2004
Stock Option Plan (filed herewith)
|
|
4.3
|
|
2004
Nonemployee Director Stock Option Plan, as Amended((filed
herewith)
|
|
4.4
|
|
Form
of Nonqualified Stock Option Contract- Employees Grant 12/10/04 (filed
herewith)
|
|
4.5
|
|
Form
of Nonqualified Stock Option Contract- Employees Grant 4/20/05 (filed
herewith)
|
|
4.6
|
|
Form
of Nonqualified Stock Option Contract- Non-Employee Directors Grant 2/1/05
(filed herewith)
|
|
Number
|
|
Description
|
|
|
|
|
|
4.7
|
|
Form
of Nonqualified Stock Option Contract- Non-Employee Directors Grant 2/1/06
(filed herewith)
|
|
5.1
|
|
Opinion
of GrayRobinson, P.A. (filed herewith)
|
|
23.1
|
|
Consent
of GrayRobinson, P.A. (included in Exhibit 5.1)
|
|
23.2
|
|
Consent
of Mazars LLP(filed herewith)
|
|
24.1
|
|
Power
of Attorney (included on signature page of this registration
statement)
|
Item 9.
Undertakings.
A. 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;
|
|
|
(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; and
|
|
|
(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;
|
provided,
however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act of 1934 that are incorporated by reference 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.
|
B. The
undersigned registrant hereby undertakes that, for purposes of determining
liability under the Securities Act, each filing of the registrant’s annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the 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 Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on this 7th day of August,
2009.
|
|
Inter
Parfums, Inc.
|
|
|
|
|
|
|
|
By
|
/s/ Jean Madar
|
|
|
|
Jean
Madar, Chief Executive Officer
|
|
|
|
Date:
August 7, 2009
|
|
Each person whose signature appears
below hereby appoints Jean Madar and Russell Greenberg,
and both of them, either of whom may act without the joinder of the other, as
his true and lawful attorneys-in-fact and agents, 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 to this registration
statement on Form S-8, and to file the same, with all exhibits thereto and all
other documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to perform each and every
act and thing appropriate or necessary to be done, as fully and for 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 their substitute or substitutes
may lawfully do or cause to be done by virtue hereof. Pursuant to the
requirements of the Securities Act, this registration statement has been signed
by the following persons in the capacities and on the dates
indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
/s/ Jean Madar
|
|
Chairman of the Board of Directors
|
|
August 7, 2009
|
|
|
Jean
Madar
|
|
and Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Russell Greenberg
|
|
Chief Financial and Accounting Officer
|
|
August 7, 2009
|
|
|
Russell
Greenberg
|
|
and Director
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Philippe
Benacin
|
|
Director
|
|
August 7, 2009
|
|
|
Philippe
Benacin
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Philippe
Santi
|
|
Director
|
|
August 7, 2009
|
|
|
Philippe
Santi
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Francois Heilbronn
|
|
Director
|
|
August 7, 2009
|
|
|
Francois
Heilbronn
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Jean Levy
|
|
Director
|
|
August 7, 2009
|
|
|
Jean
Levy
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Robert
Bensoussan-Torres
|
|
Director
|
|
August 7, 2009
|
|
|
Robert
Bensoussan-Torres
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Serge Rosinoer
|
|
Director
|
|
August 7, 2009
|
|
|
Serge
Rosinoer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Patrick Choël
|
|
Director
|
|
August 7, 2009
|
|
|
Patrick
Choël
|
|
|
|
|
|
EXHIBIT
INDEX
|
Number
|
|
Description
|
|
Page
Number
|
|
|
|
|
|
|
|
|
|
4.1
|
|
1999
Stock Option Plan, as Amended (filed herewith)
|
|
31 |
|
|
4.2
|
|
2004
Stock Option Plan (filed herewith)
|
|
39 |
|
|
4.3
|
|
2004
Nonemployee Director Stock Option Plan, as Amended (filed
herewith)
|
|
47 |
|
|
4.4
|
|
Form
of Nonqualified Stock Option Contract- Employees Grant 12/10/04 (filed
herewith)
|
|
53 |
|
|
4.5
|
|
Form
of Nonqualified Stock Option Contract- Employees Grant 4/20/05 (filed
herewith)
|
|
56 |
|
|
4.6
|
|
Form
of Nonqualified Stock Option Contract- Non-Employee Directors Grant 2/1/05
(filed herewith)
|
|
59 |
|
|
4.7
|
|
Form
of Nonqualified Stock Option Contract- Non-Employee Directors Grant 2/1/06
(filed herewith)
|
|
61 |
|
|
5.1
|
|
Opinion
of GrayRobinson, P.A. (filed herewith)
|
|
63 |
|
|
23.1
|
|
Consent
of GrayRobinson, P.A. (included in Exhibit 5.1)
|
|
63 |
|
|
23.2
|
|
Consent
of Mazars LLP(filed herewith)
|
|
64 |
|
|
24.1
|
|
Power
of Attorney (included on signature page of this registration
statement)
|
|
29 |
|