-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EuHgFNXVZ7m6vr5TfT/ey8ckmpibVqY9OH79yiEAzK3JkP+4kk1ovx3+Fmn9Lt5k UDJMwM6yDn1UkVnGbytDzQ== 0000950147-99-000188.txt : 19990308 0000950147-99-000188.hdr.sgml : 19990308 ACCESSION NUMBER: 0000950147-99-000188 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19990305 EFFECTIVENESS DATE: 19990305 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FBR CAPITAL CORP /NV/ CENTRAL INDEX KEY: 0000836937 STANDARD INDUSTRIAL CLASSIFICATION: PERFUMES, COSMETICS & OTHER TOILET PREPARATIONS [2844] IRS NUMBER: 133465289 STATE OF INCORPORATION: NV FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-73387 FILM NUMBER: 99557815 BUSINESS ADDRESS: STREET 1: 15 EXECUTIVE BLVD CITY: ORANGE STATE: CT ZIP: 06477 BUSINESS PHONE: 2037994609 MAIL ADDRESS: STREET 1: 15 EXECUTIVE BLVD CITY: ORANGE STATE: CT ZIP: 06477 FORMER COMPANY: FORMER CONFORMED NAME: BARRIE RICHARD FRAGRANCES INC DATE OF NAME CHANGE: 19920703 S-8 1 FORM S-8 OF FBR CAPITAL CORPORATION As filed with the Securities and Exchange Commission on March 5, 1999 Registration No. 333-______________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 Registration Statement Under The Securities Act Of 1933 FBR CAPITAL CORPORATION (Exact name of registrant as specified in its charter) Nevada 13-3465289 - ------------------------ --------------------------------- (State of Incorporation) (IRS Employer Identification No.) 14988 N. 78th Way, Suite 203 Scottsdale, AZ 85260 ---------------------------------------- (Address of principal executive offices) Director Compensation Plan -------------------------- (Full title of the plans) CHARLES D. SNEAD, JR. President 14988 N. 78th Way, Suite 203 Scottsdale, AZ 85260 (602) 483-1466 --------------------------------------------------------- (Name, address and telephone number of agent for service) If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 41 under the Securities Act of 1933, check the following [X] ================================================================================ CALCULATION OF REGISTRATION FEE ================================================================================ Proposed Proposed Title of Maximum Maximum Amount Securities Amount Offering Aggregate of to be to be Price Per Offering Registration Registered Registered Share (1) Price Fee - -------------------------------------------------------------------------------- Common Stock, par value $. 70,000 $0.6875 $48,125.00 $13.38 ================================================================================ (1) Estimated for the sole purpose of calculating the registration fee in accordance with Rule 457(h) of the Securities Act of 1933, as amended. Based on the Company's Common Stock average high and low prices of $ .6875 per share as reported on the NASDAQ on March 4, 1999. -ii- PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS AVAILABLE INFORMATION The Company has filed with the Securities and Exchange Commission (the "Commission"), a Registration Statement on Form S-8 under the Securities Act of 1933, with respect to the Common Stock offered hereby. The Company is subject to the informational requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and in accordance therewith, files periodic reports and other information with the Commission. Such reports and other information concerning the Company may be inspected and copies may be obtained (at prescribed rates) at the Commission's Public Reference Section, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's Regional offices at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 75 Park Place, Room 1228, New York, New York 10007. This Prospectus does not contain all information set forth in the Registration Statement and Exhibits thereto which the Company has filed with the Commission under the Securities Act of 1933 and to which reference is hereby made. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of the Prospectus to the extent that a statement contained herein modifies or replaces such statement. Any such statement shall not be deemed to constitute a part of this Prospectus, except as so modified or replaced. There is incorporated herein by reference the following documents previously filed with the Commission: (1) The Company's Annual Reports on Form l0-KSB for the fiscal years ended June 30, 1996, June 30, 1997 and June 30, 1998; (2) The Company's Quarterly Report on Form 10-QSB for the quarter ended December 31, 1998, In addition, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering of the Common Stock offered hereby shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing of such documents. ITEM 2. The Company will provide without charge to each person, including any beneficial owner, to whom this Prospectus is delivered, on written or oral request of any such person, a copy of any or all of the foregoing documents incorporated herein by reference (other than exhibits to such documents). Requests should be directed to: FBR Capital Corporation, 14988 N. 78th Way, Suite 203, Scottsdale, AZ 85260, Attention: Charles D. Snead, Jr. President; (602) 483-1466. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE Incorporated by reference in this registration statement are the following documents and information previously filed with the Securities and Exchange Commission (the "Commission"): (1) The Company's Annual Reports on Form l0-KSB for the fiscal years ended June 30, 1996, June 30, 1997 and June 30, 1998; (2) The Company's Quarterly Report on Form l0-QSB for the quarter ended December 31, 1998; In addition, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering of the Common Stock offered hereby shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of the registration statement to the extent that a statement contained herein modifies or replaces such statement. Any such statement shall not be deemed to constitute a part of this registration statement except as so modified or replaced. ITEM 4. DESCRIPTION OF SECURITIES - NOT APPLICABLE. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Stephen T. Meadow, a director of the Company and a selling shareholder hereunder, also serves as Of Counsel to the firm of Cruse, Firetag & Bock, PC, legal counsel to the Company. Mr. Meadow is not a member of such law firm, has no interest in any profits therefrom and is paid only for work performed by him for his clients. As a director of the Company, Mr. Meadow is eligible to receive stock option grants and stock available to other directors of the Company. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article Fourteenth of the Company's Amended Articles of Incorporation contains provisions for the indemnification of officers, directors, employees and agents to the full extent permitted by Section 78.751 of the Nevada General Corporation Law. Section 78.751 (in conjunction with Section 78.7502) permits indemnification of directors, officers and employees of corporations under certain conditions and subject to certain limitations. Under such law, to the extent that such person is successful on the merits in a defense of a suit or proceeding brought against him by reason of the fact that he is or was a director or officer of the Company, or serves or served any other enterprise or organization at the Company, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred in connection with such action. If unsuccessful in defense of a third-party civil suit or a. criminal suit, or if such suit is settled, such person shall be indemnified under such law against both (1) expenses, including attorneys' fees, and (2) judgments, fines and amounts paid in settlement if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal action, had no reasonable cause to believe his conduct was unlawful. If unsuccessful in defense of a suit brought by or in the right of the Company, where such suit is settled, such person shall be indemnified under such law only against expenses (including attorneys' fees) actually and reasonably incurred in the defense or settlement of such suit if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Company, except that if such person is adjudged to be liable in such a suit for negligence or misconduct in the performance of his duty to the Company, he cannot be made whole even for expenses unless the court determines that he is fully and reasonably entitled to indemnity for such expenses. II-1 In addition, Article Fifteenth of the Company's Amended Articles of Incorporation provides that "no director or officer shall be personally liable to the Corporation or its stockholders for damage for breach for [sic] fiduciary duty as a director or officer; provided, however, that this provision shall not limit the liability of a director or officer (i) for acts or omissions which involve intentional misconduct, fraud, or a knowing violation of law, or (ii) for the payment of dividends in violation of Nevada Revised Statutes Section 78.300. Neither the amendment nor repeal of this Article FIFTEENTH, nor the adoption of any provision of the Articles of Incorporation inconsistent with this Article FIFTEENTH, shall eliminate or reduce the effect of this Article FIFTEENTH in respect of any matter occurring, or any cause of action, suit, or claims that, but for this Article FIFTEENTH, would accrue or arise, prior to such amendment or repeal, or adoption of an inconsistent provision." ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED - NOT APPLICABLE. ITEM 8. EXHIBITS Exhibit No. Description - --- ----------- 5 Opinion of Cruse, Firetag & Bock, PC, counsel to the Company. ITEM 9. UNDERTAKINGS The undersigned registrant hereby undertakes: 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. That, for the purpose of determining any liability under the Securities Act of 1933 ("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; and, 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. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities 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 therein and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 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 Exchange Act; 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. 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 Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, II-2 unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid any 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, as amended, the Company 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 duty authorized, in the City of Scottsdale, County of Maricopa, State of Arizona, on the 5th day of March, 1999. FBR Capital Corporation /s/ Charles D. Snead, Jr. ---------------------------- Charles D. Snead, Jr. President Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated: Dated: March 5, 1999 /s/ Charles D. Snead, Jr. ------------------------------------------------- Charles D. Snead, Jr., President, Chief Executive Officer, Treasurer and Chief Financial Officer (Principal Executive Officer) Dated: March 5, 1999 /s/ Stephen T. Meadow ------------------------------------------------- Stephen T. Meadow, Secretary and Director INDEX TO EXHIBITS Exhibit No. - ------- 5 Opinion of Cruse, Firetag & Bock, PC, Counsel to the Company. II-3 EX-5 2 OPINION OF CRUSE, FIRETAG & BOCK, PC March 5, 1999 Exhibit 5 FBR Capital Corporation 14988 N. 78th Way, Suite 203 Scottsdale, Arizona 85260 Re: FBR Capital Corporation, a Nevada corporation REGISTRATION STATEMENT ON FORM S-8 Our File No.: 2691-6295 Gentlemen: We are counsel for FBR Capital Corporation, a Nevada corporation (the "Company"). We have been asked to deliver this opinion in connection with the preparation and filing with the Securities and Exchange Commission under the Securities Act of 1993, as amended (the "Act"), of a Registration Statement on Forms S-8 (the "Registration Statement") relating to an aggregate of 70,000 shares of the Company's Common Stock, $.005 par value per share (the "Shares"). This opinion letter, together with Schedule A attached hereto (this "Opinion Letter"), is being rendered in connection with the filing of the Registration Statement. The 70,000 Shares covered by the Registration Statement are issuable under the Company's Director Compensation Plan (the "Plan"). In connection with this Opinion Letter, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of the following documents (collectively, the "Documents"): 1. A Certificate of Good Standing from the Secretary of State of the State of Nevada, dated March 1, 1999; 2. A certificate of Good Standing from the Arizona Corporation Commission, dated March 1, 1999; 3. A copy of the Articles of Incorporation of the Company, as amended to date, and a certificate of the Secretary that there have been no further amendments thereto; 4. A copy of the Amended and Restated By-laws of the Company, certified by the Secretary of the Company as presently being in effect; 5. Certain proceedings of the directors of the Company relative to the Plan and Options granted under the Plan; 6. A letter from the Company's transfer agent dated February 25, 1999, as to the issued and outstanding shares of the Company's Common Stock, $.005 par value per share; and 7. The Registration Statement. We have, without independent investigation, relied upon the representation and warranties of the various parties as to matters of objective fact contained in the Documents. In addition, this Firm, in rendering legal opinions, customarily makes certain assumptions which are described in Schedule A hereto. In the course of our representation of the Company in connection with the preparation of the Registration Statement, nothing has come to our attention which causes us to believe reliance upon any of these assumptions is inappropriate, and, with your concurrence, the opinion hereafter expressed is based upon those assumptions. The Enumerated Party referred in Schedule A is the Company. We have not made any independent review or investigation of orders, judgments, rules or other regulations or decrees by which the Company or any of its property may be bound, nor have we made any independent investigation as to the existence of actions, suits, investigations or proceedings, if any, pending or threatened against the Company. With your concurrence, our opinion hereafter expressed is based solely upon: (1) our review of the Documents, (2) discussions with those of our attorneys who have devoted substantive attention to the preparation of the Registration Statement, and (3) such review of published sources of law as we have deemed necessary. Our opinions contained herein are limited to the laws of the State of Arizona and the Federal law of the United States of America. Our opinion regarding the Shares is rendered, with your concurrence, as if only the internal laws of the State of Arizona were applicable thereto, notwithstanding that the Company is a Nevada corporation. We express no legal opinion upon any matter other than that explicitly addressed below, and our express opinion therein contained shall not be interpreted to be an implied opinion upon any other matter. Based upon and subject to the foregoing, we are of the opinion that the issuance of the Shares has been duly authorized and, when issued and paid for in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid, and non-assessable. We hereby consent to the reference to this firm in the Registration Statement and to the filing of this opinion as Exhibit 5 to the Registration Statement. Very truly yours, CRUSE, FIRETAG & BOCK, P.C. /s/ John L. Stoss JOHN L. STOSS SCHEDULE A CRUSE, FIRETAG & BOCK, P.C. STANDARD ASSUMPTIONS In rendering legal opinions, Cruse, Firetag & Bock, P.C. makes certain customary assumptions described below: 1. Each natural person executing any of the Documents has sufficient legal capacity to enter into such Documents. 2. Each Document is accurate, complete and authentic, each original is authentic, each copy conforms to an authentic original and all signatures are genuine. 3. All official public records are accurate, complete and properly indexed and filed. 4. There has not been any mutual mistake of fact or misunderstanding, fraud, duress, or undue influences by or among any of the parties to the Documents. 5. The conduct of the parties to the Documents has complied in the past and will comply in the future with any requirement of good faith, fair dealing and conscionability. 6. The Enumerated Party will obtain all permits and governmental approvals required in the future and take all actions similarly required relevant to its performance of its obligations under the Documents. 7. All parties to or bound by the Documents will act in accordance with, and will refrain from taking any action that is forbidden by, the terms and conditions of the Documents. 8. There are no agreements or understandings among the parties to or bound by the Documents, and there is no usage of trade or course of prior dealing among such parties, that would define, modify, waive, or qualify the terms of any of the Documents. -----END PRIVACY-ENHANCED MESSAGE-----