As Filed With the Securities and Exchange Commission on February 25, 2004
Registration No. 333-________
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UNITED STATES
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 (IRS employer
incorporation or organization) indentification no.)
7263 E. San Alfredo
Scottsdale, AZ 85258
(Address of principal executive offices)
480-596-4014
(Registrant's telephone number, including area code)
2004 Qualified Stock Option Plan
(Full title of the plans)
Jerry Brown, President
BGR Corporation
7263 E. San Alfredo
Scottsdale, AZ 85258
(Name and address of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum Maximum
offering Aggregate Amount of
Title of securities Amount to be price offering registration
to be registered Registered(1) per unit(2) price fee
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Common stock, par 4,000,000 $0.28 $1,120,000 $141.90
value, $0.001 per
share
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(1) This Registration Statement covers, in addition to the number of shares of
Common Stock stated above pursuant to Rule 416(c) under the Securities Act
of 1933, as amended, an additional indeterminate number of Shares which by
reason of certain events specified in the Plan may be offered or sold
pursuant to the Plan.
(2) This estimate is made solely for the purpose of determining the amount of
the registration fee pursuant to Rule 457(c) under the Securities Act of
1933, as amended and is based upon the average of the closing price of the
Registrant's Common Stock as reported by the NASD OTC Bulletin Board on
February 4, 2004.
This Registration Statement shall become effective upon filing in accordance
with Section 8(a) of the Securities Act of 1933, as amended, and 17 C.F.R. 462.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Please refer to Item 2 of this section, below.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in Part I, Items 1 and
2, will be delivered to each of the participants in accordance with Form S-8 and
Rule 428 promulgated under the Securities Act of 1933. The participants shall be
provided a written statement notifying them that upon written or oral request
they will be provided, without charge, (i) the documents incorporated by
reference in Item 3 of Part II of the registration statement, and (ii) other
documents required to be delivered pursuant to Rule 428(b). The statement will
inform the participants that these documents are incorporated by reference in
the Section 10(a) prospectus, and shall include the address (giving title or
department) and telephone number to which the request is to be directed.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, previously filed with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934 (the
"Exchange Act") by BGR Corporation (the Company") are incorporated herein by
reference:
(a) The Company's latest annual report for its fiscal year ended June 30,
2003 filed pursuant to Section 13(a) or 15(d) of the Exchange Act on
September 26, 2003; and
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year
covered by the Form 10-KSB referred to in (a) above.
(c) A description of the Registrant's securities contained in the
Registration Statement on Form SB-2 filed by the Registrant to
register the common stock under the Securities Act, including all
amendments filed for the purpose of updating such common stock
description.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, 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.
All shares of Common Stock bear equal voting rights and are non assessable.
Voting rights are not cumulative, and so holders of more than 50% of the shares
could, if they chose, elect all the Directors. Upon liquidation, dissolution or
winding up of the Company, the assets of the Company, if any, after payment of
liabilities and any liquidation preferences on any outstanding preferred stock,
will be distributed pro rata to the holders of the Common Stock. The holders of
the Common Stock do not have preemptive rights to subscribe for any securities
of the Company and have no right to require the Company to redeem or purchase
their shares. Holders of Common Stock are entitled to share equally in dividends
when, as and if declared by the Board of Directors, out of funds legally
available therefore.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Other than as set forth below, no named expert or counsel was hired on a
contingent basis, will receive a direct or indirect interest in the small
business issuer, or was a promoter, underwriter, voting trustee, director,
officer, or employee of the Registrant.
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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
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.
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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
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.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. LIST OF EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION/LOCATION
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4 2004 Qualified Stock Option Plan
5 Opinion of Legality
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Certifying Accountants
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act 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.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company'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 benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 payment by the Company of expenses paid or incurred
by a director, officer or controlling person of the Company 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 Company 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 Act and will be governed by the final adjudication of
such issue.
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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 Scottsdale, the State of Arizona, on this 23rd day of
February, 2004.
BGR Corporation
Signature: /s/ Jerry Brown
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Title: President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature: /s/ Jerry Brown
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Title: President and Director
Date: February 23, 2004
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the employee benefit plan) have duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Scottsdale, the State of Arizona, on
this 11th day of September, 2004.
Plan: 2004 Qualified Stock Option Plan
Signature: /s/ Jerry Brown
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Title: President and Director
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION/LOCATION
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4 2004 Qualified Stock Option Plan
5 Opinion of Legality
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Certifying Accountants