SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BGI, INC.
(Exact name of issuer as specified in its charter)
Oklahoma 731092118
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
13581 Pond Springs Rd, Suite 105
Austin, Texas
(Address of Principal Executive 78729
Offices) (Zip Code)
CONSULTANT INCENTIVE PLAN
(Full title of plan)
Robert Chappell, Secretary
BGI, Inc.
13581 Pond Springs Rd, Suite 105
Austin, Texas 78729
(Name and address of agent for service)
(512) 335-0065
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
============================================================================================
Proposed Proposed
maximum maximum
Title of securities to Amount to be offering price aggregate Amount of
be registered registered per share offering price registration fee
(1)
- --------------------------------------------------------------------------------------------
Common Stock, 185,000 shares $ 0.12 $ 22,200 $ 6.00
.001 par value per
share
============================================================================================
<FN>
(1) Estimated solely for the purpose of determining the registration fee pursuant
to Rule 457(c) and (h) and based upon the closing price quoted on the NASD OTC Electronic
This registration statement relates to 185,000 shares of Common Stock,
$.001 par value per share ("Common Stock") of BGI, Inc., an Oklahoma corporation
(the "Company") that may be issued to consultants under the Company's Consultant
Incentive Plan (the "Plan"). The Company may issue covered shares directly to
participants or grant options that allow participants to purchase shares at a
fixed price for a specified period of time.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in "Item 1. Plan
Information" and "Item 2. Registrant Information and Employee Plan Annual
Information" of Form S-8 will be sent or given to participants in the Plan, as
specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the
"Securities Act"). Such documents are not required to be and are not filed with
the Securities and Exchange Commission either as part of this Registration
Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under
the Securities Act and the Note to Part I of Form S-8. These documents and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II of Form S-8, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby specifically incorporated by reference
into this registration statement:
(1) The Company's Annual Report on Form 10-K SB for the fiscal
year ended December 31, 2000;
(2) All other reports filed by the Company pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 since December 31,
2000; and
(3) The description of the Company's Common Stock contained in the
Company's registration filed under Section 12 of the Securities Exchange Act of
1934, including any amendment or report filed for the purpose of updating such
description.
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 filing of a post-effective
amendment to this registration statement indicating that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this registration statement and
to be part thereof from the date of filing of such documents.
DESCRIPTION OF SECURITIES
Not applicable
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1031 of the Corporation Act permits a corporation to indemnify
any of its directors, officers, employees or agents 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
(other than an action by or in the right of the corporation), by reason of the
fact that such person is or was a director, officer, employee or agent of the
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corporation (or another enterprise if serving at the request of the
corporation), against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner 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 reason to believe that his or her conduct was unlawful. In
any threatened, pending or completed action or suit by or in the right of the
corporation, a corporation is permitted to indemnify any director, officer,
employee or agent against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner that
he reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made if such person shall
have been adjudged to be liable to the corporation unless and only to the extent
that the court in which the action or suit was brought shall determine upon
application that, despite such adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such expenses which the court shall deem proper. Such
indemnification may generally be made only upon a determination that such
indemnification is proper in the circumstances because the person to be
indemnified has met the applicable standard of conduct to permit indemnification
under the law; however, directors and officers that are successful on the merits
or otherwise in defense of claims arising from their service to the Company are
entitled by right to indemnification for the costs of defense.
Article VII of the Company's Certificate of Incorporation provides that the
Company will 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 (other than
an action by or in the right of the corporation), by reason of the fact that
such person is or was a director, officer, employee or agent of the corporation
(or another enterprise if serving at the request of the corporation), against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner 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 that his or her conduct was unlawful. Article VII
further provides that in any threatened, pending or completed action or suit by
or in the right of the corporation, the Company will indemnify any director,
officer, employee or agent against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner that he reasonably believed to be in or not opposed to the best interests
of the corporation, except that no indemnification may be made if such person
shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Company unless and only to the extent that the
court in which the action or suit was brought shall determine upon application
that, despite such adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such expenses which the court shall deem proper. Such
indemnification may generally be made only upon a determination that such
indemnification is proper in the circumstances because the person to be
indemnified has met the applicable standard of conduct to permit indemnification
under the law; however, directors and officers that are successful on the merits
or otherwise in defense of claims arising from their service to the Company are
entitled by right to indemnification for the costs of defense. Article VII
allows the Company to advance expenses of defense to indemnified persons and to
purchase insurance against liability on the part of any a director, officer,
employee or agent of the corporation (or another enterprise if serving at the
request of the corporation), whether or not the Company could indemnify such
person against the insured risk under the Corporation Act.
Article XI of the Company's By-laws provides that the Company shall have
the power to indemnify to the full extent authorized or permitted by the
Corporation Act any director, officer, employee or agent of the Company and any
person serving at the request of the Company as a director, officer, employee or
agent of any other enterprise at the Company's request.
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The Company also has purchased insurance designed to protect the Company
and its directors and officers against losses arising from certain claims,
including claims under the Securities Act.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
EXHIBITS
The following exhibits are filed with or incorporated by reference into
this registration statement:
Exhibit
-------
4.1 Description of Common Stock
4.2 Consultant Incentive Plan
5 Opinion re legality
23.1 Consent of Brown, Graham and Company, P.C.
23.2 Consent of Winstead Sechrest & Minick P.C. (included as part of
Exhibit 5)
UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a) 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 of 1933;
(ii) To reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information in the
registration statement (Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total 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 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement);
(iii) To include any additional or changed material information on the plan
of distribution.
Provided, that paragraphs (a)(i) and (a)(ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(b) That, for purposes of determining any liability under the Securities Act of
1933, each post-effective amendment will be treated as a new registration
statement of the securities offered herein, and the offering of such
securities at that time will be treated as the initial bona fide offering.
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(c) To file a post-effective amendment to remove from registration any of the
securities being registered that remain unsold at the termination of the
offering.
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) of 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling 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 Securities Act and
is therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted against
the Company 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 Securities 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 Austin, State of Texas, on May 18, 2001.
BGI, INC.
(Registrant)
By: /s/ Reid Funderburk
-----------------------------------
Reid Funderburk,
Chief Executive Officer
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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 Title Date
- -------------------------- ----------------------------- -------------
/s/ Reid Funderburk Chief Executive Officer and May 18, 2001
- -------------------------- Director
Reid Funderburk (Principal Executive Officer)
/s/ Rick Redmond Director May 18, 2001
- --------------------------
Rick Redmond
/s/ R. E. Wilkin Director May 18, 2001
- --------------------------
R. E. Wilkin
/s/ Robert Chappell Controller May 18, 2001
- -------------------------- (Principal Financial and
Robert Chappell Accounting Officer)
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EXHIBIT INDEX
Exhibit Sequentially
- ------- -------------
Numbered Page
-------------
4.1 Description of Common Stock (incorporated --
by reference from registrant's initial registration
statement under Section 12 of the Securities
Exchange Act of 1934)
4.2 Consultant Incentive Plan 8
5 Opinion re legality 10
23.1 Consent of Brown, Graham and Company, P.C. 12
23.2 Consent of Winstead Sechrest & Minick P.C. --
(included as part of Exhibit 5)
8