As filed with the Securities and Exchange
Commission on May 11, 200
9
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
PHYSICIANS
FORMULA HOLDINGS, INC.
(Exact
name of registrant as specified in its charter)
Delaware
(State or other
jurisdiction of
incorporation
or organization)
|
|
20-0340099
(I.R.S. Employer Identification
No.)
|
|
|
|
1055
West 8th Street, Azusa, California
|
|
91702
|
(Address
of Principal Executive Offices)
|
|
(Zip
Code)
|
|
|
|
Physicians
Formula Holdings, Inc. Amended and Restated 2006 Equity Incentive
Plan
(Full
title of the plan)
Joseph
J. Jaeger
Chief
Financial Officer
Physicians
Formula Holdings, Inc.
1055
West 8th Street
Azusa,
California 91702
Telephone:
(626)
334-3395
(Name,
address and telephone number, including area code, of agent for
service)
Copy to:
James
S. Rowe, Esq.
Elisabeth
M. Martin, Esq.
Kirkland
& Ellis LLP
300
North LaSalle
Chicago,
Illinois 60654
Telephone:
(312) 862-2000
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
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer
o
|
|
|
Non-accelerated
filer
o
|
|
Smaller
reporting company
o
|
CALCULATION
OF REGISTRATION FEE
Title of securities to be
registered
|
|
Amount to be
registered (1)
|
|
|
Proposed maximum
offering price per share (2)
|
|
|
Proposed
maximum aggregate offering price (2)
|
|
|
Amount
of resgistration fee
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common
Stock, par value $0.01 per share
|
|
|
271,542
|
(3
|
)
|
|
$
|
3.27
|
|
|
$
|
887,942.34
|
|
|
$
|
50
|
|
(1)
|
Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities
Act”), this Registration Statement shall also cover any additional shares
of common stock which become issuable under the above-named plan by reason
of any stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results in
an increase in the number of our outstanding shares of common
stock.
|
(2)
|
The proposed maximum offering
price is calculated pursuant to paragraphs (c) and (h) of Rule 457 under
the Securities Act on the basis of the average of the high and low sale
prices for the shares of common stock as reported on The Nasdaq Global
Select Market on May 5, 2009 solely for the purpose of calculating
the registration fee.
|
(3)
|
Represents
additional shares of common stock authorized as of January 1, 2009 under
the evergreen provision of the Physicians Formula Holdings, Inc. Amended
and Restated 2006 Equity Incentive Plan (the
“Plan”).
|
EXPLANATORY
NOTE
Pursuant to
General Instruction E to Form S-8 under the Securities Act, this Registration
Statement on Form S-8 is filed by Physicians Formula Holdings, Inc. (the
“Company”) for the purpose of registering additional shares of common stock, par
value $0.01 per share, of the Company (the “Common Stock”) under the Plan. The
number of shares of Common Stock available for issuance under the Plan is
subject to an automatic annual increase on the first day of each of the
Company’s fiscal years beginning in 2007 and ending in 2016 equal to the lesser
of: (i) two percent (2%) of the shares of Common Stock outstanding on the last
day of the immediately preceding fiscal year or (ii) such lesser number of
shares of Common Stock as determined by the Compensation Committee (the
“Committee”) of the Board of Directors of the Company (the “Evergreen
Provision”). Accordingly, the number of shares of Common Stock available for
issuance under the Plan was increased by 271,542 shares effective January 1,
2009. This Registration Statement registers the 271,542 additional shares of
Common Stock available for issuance under the Plan as a result of the Evergreen
Provision.
The shares of
Common Stock registered pursuant to this Registration Statement are of the same
class of securities as the shares of Common Stock registered for issuance under
the Plan pursuant to the currently effective Registration Statement on Form S-8
(Registration No. 333-140667) filed on February 13, 2007 (the “Original
Registration Statement”). In addition, on March 13, 2008, the Company filed an
additional Registration Statement on Form S-8 (Registration No. 333-149691) to
register an additional 281,914 shares of Common Stock which became available for
issuance as of January 1, 2008 as a result of the Evergreen Provision. The
contents of the Original Registration Statement, including any amendments
thereto or filings incorporated therein, are incorporated herein by this
reference. Any items in the Original Registration Statement not expressly
changed hereby shall be as set forth in the Original Registration
Statement.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by
Reference
.
|
The
following documents, which
have been filed by the Company with the Commission, are incorporated in this
Registration Statement by reference:
(a) The
Company’s Annual Report on Form 10-K for the fiscal year ended December 31,
2008, filed with the Commission on March 31, 2009
, and the
Company’s Amendment No. 1 on Form 10-K/A, filed with the Commission on April 27,
2009;
(b)
The
Company’s Quarterly Report on Form 10-Q filed with the Commission on May 11,
2009;
(c)
The
Company’s Current Reports on Form 8-K filed with the Commission on March 10,
2009, March 16, 2009, March 31, 2009 (to report entry into a material definitive
agreement), March 31, 2009 (to report compensatory arrangements of certain
officers), April 24, 2009 and May 5, 2009; and
(d) The
description of the Company’s common stock, par value $0.01 per share, included
under the caption “Description of Capital Stock” in the Prospectus forming a
part of the Company’s Registration Statement on Form S-1, initially filed with
the Commission on August 25, 2006 (Registration No. 333-136913), including
exhibits, and as amended, which description has been incorporated by reference
in Item 1 of the Company’s
Registration Statement on Form 8-A, filed
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), on November 8, 2006 (Registration No. 001-33142).
All reports
and other documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement, but prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is 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 5.
Interests of Named Experts and
Counsel
.
Not
Applicable.
|
Item 8.
Exhibits.
Reference
is made to the attached Exhibit Index, which is incorporated by reference
herein.
|
(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 the 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. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective 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
reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act 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 any
liability under the Securities Act, each filing of the Company’s annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 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.
Pursuant to
the requirements of the Securities Act, the registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Azusa,
State of California, on May 11, 2009.
|
PHYSICIANS
FORMULA HOLDINGS, INC.
|
|
|
|
By:
|
/s/
Joseph J. Jaeger
|
|
|
Name:
Joseph J. Jaeger
|
|
|
Title:
Chief Financial
Officer
|
POWER
OF ATTORNEY
KNOW ALL MEN
BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Ingrid Jackel and Joseph J. Jaeger and each of them his or her true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities (including his or her capacity as a director and/or officer)
to sign any or all amendments (including post-effective amendments) to this
registration statement and any subsequent registration statement, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his 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 indicated on May 11,
2009.
Signature
|
|
Title
|
|
|
|
|
|
/s/
Ingrid Jackel
|
|
Chief
Executive Officer and Director
|
|
Ingrid
Jackel
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
/s/
Joseph J. Jaeger
|
|
Chief
Financial Officer
|
|
Joseph
J. Jaeger
|
|
(Principal
Financial and Accounting Officer)
|
|
|
|
|
|
/s/Jeff
Rogers
|
|
President
and Director
|
|
Jeff
Rogers
|
|
|
|
|
|
|
|
/s/
Padraic L. Spence
|
|
Director
|
|
Padraic
L. Spence
|
|
|
|
|
|
|
|
/s/
Zvi Eiref
|
|
Director
|
|
Zvi
Eiref
|
|
|
|
|
|
|
|
/s/ Jeff M.
Berry
|
|
Director
|
|
Jeff
M. Berry
|
|
|
|
|
|
|
|
EXHIBIT
INDEX
Exhibit
Number
|
|
Description
|
5.1
|
|
Opinion
of Kirkland & Ellis LLP with respect to the legality of the shares of
common stock being registered hereby.
|
23.1
|
|
Consent
of Deloitte & Touche LLP.
|
23.2
|
|
Consent
of Kirkland & Ellis LLP (included in Exhibit 5.1).
|
24.1
|
|
Power
of Attorney of certain officers and directors of the Company to file
future amendments (set forth on the signature page of the Registration
Statement).
|
Physicians Formula Holdings, Inc. (MM) (NASDAQ:FACE)
Historical Stock Chart
From Jul 2024 to Aug 2024
Physicians Formula Holdings, Inc. (MM) (NASDAQ:FACE)
Historical Stock Chart
From Aug 2023 to Aug 2024