As filed with the Securities and Exchange Commission on July 07, 2004 Reg. No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________________________
BGR Corporation
(Exact name of registrant as specified in its charter)
Nevada 98-0353403
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
5080 N 40th St. Suite 103
Phoenix, AZ 85018
Tel: (480) 596-4014
(Address of principal executive offices)
________________________________________________
ADVISORY AND CONSULTING AGREEMENTS
(Full title of plan)
________________________________
Bradford Miller
Chief Executive Officer
5080 N 40th St. Suite 103
Phoenix, AZ 85018
(Name and address of agent for service)
Tel: (480) 596-4014
(Telephone number, including area code of agent for service)
Copy to:
Michael L. Corrigan, Esq.
7770 Regents Rd. Suite 113-401
San Diego, CA 92122-1967
(858) 362-1440
CALCULATION OF REGISTRATION FEE
=============================================================================================
Proposed Proposed
Title of securities Amount to be maximum maximum Amount of
to be registered Registered (1) offering price Aggregate offering Registration fee
per share Price (2)
=============================================================================================
Common Stock 800,000 .078 $ 62,400.00 $ 7.91
($.0001 par value)
=============================================================================================
(1) Represents 800,000 shares of Common Stock to be issued as compensation for
services rendered.
(2) Estimated solely for the purpose of determining the amount of registration
fee and pursuant to Rules 457(c) and 457(h) of the General Rules and Regulations
under the Securities Act of 1933.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating parties in accordance with Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"). Such document(s) are not
being filed with the Commission pursuant to the introductory Note to Part 1 of
Form S-8, but constitute (along with the documents incorporated by reference to
the Registration Statement pursuant to Item 3 of Part II hereof) a prospectus
that meets the requirements of Section 10(a) of the Act.
Purposes:
The Common Stock will be issued by the Company pursuant to an agreement entered
into by the Company and approved by the Board of Directors of the Company (the
"Board of Directors"). The agreement is intended to provide a method whereby the
Company may be stimulated by the personal involvement of the Consultant in the
Company's business thereby advancing the interests of the Company, and all of
its shareholders.
Common Stock:
The Board has authorized the issuance of up to 800,000 shares of the Common
Stock to the Consultant upon effectiveness of the registration statement.
Consultants:
The Consultant has agreed to provide its expertise and advice to the Company on
a non-exclusive basis for the purpose of generally representing the Company with
respect to certain matters as described in the Consultant's engagement
agreement.
No Restrictions on Transfer
Upon the shares becoming "Earned" pursuant to the terms of Consultant's
engagement agreement, the Consultant will become the record and beneficial
owner of the shares of Common Stock upon issuance and delivery and is entitled
to all of the rights of ownership, including the right to vote any shares
awarded and to receive ordinary cash dividends on the Common Stock.
Tax Treatment to the Consultant
The Common Stock is not qualified under Section 401(a) of the Internal Revenue
Code. The Consultant, therefore, will be deemed for federal income tax purposes
to recognize ordinary income during the taxable year in which the first of the
following events occurs: (a) the shares become freely transferable, or (b) the
shares cease to be subject to a substantial risk of forfeiture. Accordingly, the
Consultant will receive compensation taxable at ordinary rates equal to the fair
market value of the shares on the date of receipt since there will be no
substantial risk of forfeiture or other restrictions on transfer. If, however,
2
the Consultant receives shares of common stock pursuant to the exercises of an
option or options at an exercise price below the fair market value of the shares
on the date of exercise, the difference between the exercise price and the fair
market value of the stock on the date of exercise will be deemed ordinary income
for federal tax purposes. The Consultant is urged to consult his tax advisor on
this matter. Further, if any recipient is an "affiliate", Section 16(b) of the
Exchange Act is applicable and will affect the issue of taxation.
Tax Treatment to the Company
The amount of income recognized by any recipient hereunder in accordance with
the foregoing discussion will be an expense deductible by the Company for
federal income tax purposes in the taxable year of the Company during which the
recipient recognizes income.
Restrictions of Resales
In the event that an affiliate of the Company acquires shares of Common Stock
hereunder, the affiliate will be subject to Section 16(b) of the Exchange Act.
Further, in the event that any affiliate acquiring shares hereunder has sold or
sells any shares of Common Stock in the six months preceding or following the
receipt of shares hereunder, any so called "profit", as computed under Section
16(b) of the Exchange Act, would be required to be disgorged from the recipient
to the Company. Services rendered have been recognized as valid consideration
for the "purchase" of shares in connection with the "profit" computation under
Section 16(b) of the Exchange Act. The Company has agreed that for the purpose
of any "profit" computation under 16(b) the price paid for the Common Stock
issued to affiliates is equal to the value of services rendered. Shares of
Common Stock acquired hereunder by persons other than affiliates are not subject
to Section 16(b) of the Exchange Act.
Item 2. Registrant Information
A copy of any document or part hereof incorporated by reference in this
Registration Statement but not delivered with this Prospectus or any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Requests should be
addressed to: 5080 N 40th St., Suite 103 Phoenix, AZ 85018.
Legal Opinions and Experts
Michael L. Corrigan has rendered an opinion on the validity of the securities
Being registered.
The financial statements of BGR Corporation by reference in the Company's Annual
Report (Form 10-KSB) for the period ended June 30, 2003, have been audited by
Epstein, Weber & Conover, P.L.C., independent auditors, as set forth in their
report incorporated herein by reference and are incorporated herein by reference
and are incorporated herein in reliance upon such report given upon the
authority of the firm as experts in auditing and accounting.
3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this registration
statement and are not required to be filed with this registration statement:
(a) Registrant's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 2003, filed on September 26, 2003 pursuant to Section 15(d) of the
Securities Exchange Act of 1934, as amended.
(b) Registrant's quarterly reports on Form 10-QSB, for the fiscal quarters
ended March 31, 2004, December 31, 2003, and September 30, 2003 and registrant's
current reports on Form 8-K, pursuant to Section 15(d) of the Securities
Exchange Act of 1934, as amended.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 after the date of this
registration statement and prior to the filing of a post-effective amendment to
this registration statement which indicates that all securities offered
hereunder have been sold, or which deregisters all securities then remaining
unsold under this registration statement, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation of the Company provide for the Indemnification of
employees and officers in certain cases. Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers or persons controlling the company pursuant to the foregoing
provisions, the company has been informed that in the opinion of the securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is therefore not enforceable. At the present time, the
Company does not have any officer-director liability insurance although
permitted by Section 78.752 of the Nevada Revised Statutes, nor does the Company
have indemnification agreements with any of its directors, officers, employees
or agents.
In addition, NRS Section 78.751 provides as follows: 78.751 Indemnification
of officers, directors, employees and agents; advance of expenses.
1. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or
4
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorney's fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suitor proceeding if he acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation. Indemnification may not be made for
any claim, issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, he must be indemnified by the corporation
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection with the defense.
4. Any indemnification under subsections 1 and 2, unless ordered by a court
or advanced pursuant to subsection 5, must be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances. The
determination must be made: (a) By the stockholders: (b) By the board of
directors by majority vote of a quorum consisting o directors who were not
parties to act, suit or proceeding; (c) If a majority vote of a quorum
consisting of directors who were not parties to the act, suit or proceeding so
orders, by independent legal counsel in a written opinion; or (d) If a quorum
consisting of directors who were not parties to the act, suit or proceeding
cannot to obtained, by independent legal counsel in a written opinion; or
5. The Articles of Incorporation, the Bylaws or an agreement made by the
corporation may provide that the expenses of officers and directors incurred in
defending a civil or criminal, suit or proceeding must be paid by the
5
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he is not entitled to be indemnified by
corporation. The provisions of this subsection do not affect any rights to
advancement of expenses to which corporate personnel other than the directors or
officers may be entitled under any contract or otherwise by law.
6. The indemnification and advancement of expenses authorized in or ordered
by a court pursuant to this section: (a) Does not exclude any other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under the articles of incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, for either an action in
his official capacity or an action in another capacity while holding his office,
except that indemnification, unless ordered by a court pursuant to subsection 2
or for the advancement of expenses made pursuant to subsection 5, may not be
made to or on behalf of any director or officer if a final adjudication
establishes that his act or omissions involved intentional misconduct, fraud or
a knowing violation of the law and was material to the cause of action. (b)
Continues for a person who has ceased to be a director, officer, employee or
agent and endures to the benefit of the heirs, executors and administrators of
such a person. 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits to this registration statement are listed in the index to Exhibits.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
1. To file, during the period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
6
(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
Registration Statement is on Form S-3, Form S-8 or Form F-3, and 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 Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities 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 of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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.
4. The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
5. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee pursuant to the plan's annual report pursuant to section 15(d) for the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
6. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by 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 counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
7
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, whereunto duly
authorized, in Phoenix, Arizona, on July 7, 2004.
BGR Corporation
By /s/ Bradford Miller
----------------------------------------------------
Bradford Miller, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, the
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
By /s/ Bradford Miller
----------------------------------------------------
Bradford Miller, President and Chief Executive Officer
Dated: July 7, 2004
8
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
------- -----------
4.1 Engagement Agreement, Michael L. Corrigan
5.1 Opinion of Counsel, Michael L. Corrigan
23.1 Consent of Andersen Andersen & Strong, L.C.
23.2 Consent of Michael L. Corrigan
(included in Exhibit 5.1)
9