As filed with the Securities and Exchange Commission on July 30, 1998,
Commission File No. Q-2549
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
BRIA COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
NEW JERSEY 22-1644111
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification No.)
8 West 38th Street, 9th Floor, New York, NY 10018
(Address of principal executive offices) (Zip Code)
Copies to:
JAMES TILTON, PRESIDENT
8 WEST 38TH STREET, 9TH FLOOR
NEW YORK, NEW YORK 10018
(212) 398-7833
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CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed Amount
Securities to to be Maximum Offering Maximum Aggregate Registration
be registered Registered Price Per Share(1) Offering Price(1) Fee
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Common Stock, 75,000 $.44 $33,000 $10.00
$.001 par value Shares
per share
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee on the basis of the average of the high and low prices of
the Common Stock reported on NASD's Electronic Bulletin Board on July 29,
1998.
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PART II
Information Required in the Registration Statement
Item 3. Incorporation of documents by reference.
These are hereby incorporated by reference the following documents and
information heretofore filed with the Securities and Exchange Commission:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1997, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "Exchange Act") and the Registrants
Quarterly Report on Form 10-QSB for the periods ending March 31,
1998.
(b) The description of the Registrant's common stock, $.001 par value
per share ("Common Stock"), to be offered hereby is contained in the
Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1997, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 into this registration statement and to be a
part hereof from the date of the 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 By-laws of the Registrant, in Article XI thereof, provide for the
indemnification of the Registrant's Directors and Officers in certain
circumstances as follows:
1. GENERALLY
Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or
proceedings, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason
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of the fact that he or his testator or intestate (a) is or was a
director or officer of the Corporation or (b) is or was a director
or officer of the Corporation who serves or served, in any capacity,
any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise at the request of the Corporation
(hereinafter an "Indemnity"), shall be indemnified and held harmless
by the Corporation against all expense, liability and loss
[including ERISA excise tax or penalties, judgments, fines,
penalties, amounts paid in settlement (provided the Corporation
shall have given its prior consent to such settlement, which consent
shall not be unreasonably withheld by it) and reasonable expenses,
including attorneys' fees] suffered or incurred by such Indemnity in
connection therewith and such indemnification shall continue as to
an Indemnity who has ceased to be a director or officer and shall
inure to the benefit of the Indemnities heirs and fiduciaries;
provided, however, that no indemnification may be made to or on
behalf of any director or officer if his acts were committed in bad
faith or were the result of any active and deliberate dishonesty and
were material to the cause of action so adjudicated or otherwise
disposed of, or he personally gained in fact a financial profit or
other advantage to which he was not legally entitled.
Not-withstanding the foregoing, except as contemplated by Section 3
hereof, the Corporation shall indemnify any such Indemnity in
connection with a proceeding (or part thereof) initiated by such
Indemnity only if such proceeding (or part thereof) was authorized
by the Board of Directors of the Corporation.
2. ADVANCEMENT OF EXPENSES
All expenses reasonably incurred by an Indemnity in connection with
a threatened or actual proceeding with respect to which any such
Indemnity is or may be entitled to indemnification under this
Article shall be advanced to him or promptly reimbursed by the
Corporation in advance of the final disposition of such proceeding,
upon receipt of an undertaking by him or on his behalf to repay the
amount of such advances, if any, as to which he is ultimately found
not to be entitled to indemnification or, where indemnification is
granted, to the extent such advances exceed the indemnification to
which he is entitled. Such person shall cooperate in good faith with
any request by the Corporation that common counsel be used by the
parties to an action or proceeding who are similarly situated unless
to do so would be inappropriate due to an actual or potential
conflict of interest.
3. PROCEDURE FOR INDEMNIFICATION
(a) Not later than thirty (30) days following final disposition of
a proceeding with respect to which the Corporation has
received written request by an Indemnity for indemnification
pursuant to this Article or with respect to which there has
been an advancement of expenses pursuant to Section 2 of this
Article, if such indemnification has not been ordered by a
court, of the Board of Directors shall meet and find whether
the Indemnity met
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the standard of conduct set forth in Section 1 of this
Article, and, if it finds that he did, or to the extent it so
finds, shall authorize such indemnification.
(b) Such standard shall be found to have been met unless (i) a
judgment or other final adjudication adverse to the Indemnity
established that the standard of conduct set forth in Section
1 of this Article was not met, or (ii) if the proceeding was
disposed of other than by judgment or other final
adjudication, the Board finds in good faith that, if it had
been disposed of by judgment or other final adjudication, such
judgment or other final adjudication would have been adverse
to the Indemnity and would have been established that the
standard of conduct set forth in Section 1 of this Article was
not met.
(c) If the Board fails or is unable to make the determination
called for by paragraph (a) of this Section 3, or if
indemnification is denied, in whole or in part, because of an
adverse finding by the Board, or because the Board believes
the expenses for which indemnification is requested to be
unreasonable, such action, inaction or inability of the Board
shall in no way affect the right of the Indemnify to make such
application therefore in any court have jurisdiction thereof.
In such action or proceeding, or in any suit brought by the
Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the issue shall be whether the
Indemnity met the standard of conduct set forth in Section 1
of this Article, or whether the expenses were reasonable, as
the case may be (not whether the finding of the Board with
respect thereto was correct). If the judgment or other final
adjudication in such action or proceeding establishes that the
Indemnity met the standard set forth in Section 1 of this
Article, or that the disallowed expenses were reasonable, or
to the extent that it does, the Board shall then find such
standard to have been met or the expenses to be reasonable,
and shall grant such indemnification, and shall also grant to
the Indemnity indemnification of the expenses incurred by him
in connection with the action or proceeding resulting in the
judgment or other final adjudication that such standard of
conduct was met, or if pursuant to such court determination
such person is entitled to less than the full amount of
indemnification denied by the Corporation, the portion of such
expenses proportionate to the amount of such indemnification
so awarded. Neither the failure of the Board to have made
timely a determination prior to the commencement of such suit
that indemnification of the Indemnity is proper in the
circumstances because the Indemnity has met the applicable
standard of conduct set forth in Section 1, nor an actual
determination by the Board that the Indemnity has not met such
applicable standard of conduct, shall cerate a presumption
that the Indemnity has not met the applicable standard of
conduct. In any
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suite brought by the Indemnity to enforce a right to
indemnification, or by the Corporation to receive an
advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the Indemnity is not
entitled to indemnification, under this Article or otherwise,
shall be on the Corporation.
(d) A finding by the Board pursuant to this Section 3 that the
standard of conduct set forth in Section 1 of this Article has
been met shall mean a finding of the Board or shareholders as
provided by law.
4. CONTRACTUAL ARTICLE
The rights conferred by this Article are contract rights which shall
not be abrogated by any amendment or repeal of this Article with
respect to events occurring prior to such amendment or repeal and
shall, to the fullest extent permitted by law, be retroactive to
events occurring prior to the adoption of this Article. No amendment
of the Business Corporate Law, insofar as it reduced the permissible
extent of the right of indemnification of an Indemnity under this
Article, shall be effective as to such person with respect to any
event, act or omission occurring or allegedly occurring prior to the
effective date if such amendment irrespective of the date of any
claim or legal action in respect thereto. This Article shall be
binding on any successor to the Corporation, including any
corporation or other entity which acquires all or substantially all
of the Corporation's assets.
5. NON-EXCLUSIVITY
The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which any person covered hereby may
be entitled other than pursuant to this Article. The Corporation is
authorized to enter into agreements with any such person providing
rights to indemnification or advancement of expenses in addition to
the provisions therefore in this Article, and the Corporation's
shareholders and its Board of Directors are authorized to adopt, in
their discretion, resolutions providing any such person with any
such rights.
6. INSURANCE
The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under this
Article or applicable law.
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7. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION
The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification and the
advancement of expenses to any employee or agent of the Corporation
with the same scope and effect as provided in this Article to
directors and officers of the Corporation.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "1933 Act") may be permitted to
directors, officers or persons controlling the Registrant pursuant
to the foregoing provisions, the Registrant has been informed that
in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the 1933
Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
(a) Exhibits. The following Exhibits are filed herewith:
Exhibit Number Description of Document
5.1 Opinion of Herbert M. Jacobi, Esq., regarding the
legality of the securities being registered under this
Registration Statement.
24.1 Consent of Herbert M. Jacobi, counsel for the Registrant
(set forth in the opinion of counsel included as Exhibit
5.1).
24.2 Consent of Andersen, Andersen & Strong, L.C.,
independent public accountants for the Registrant.
Item 9. Undertakings
The undersigned Registrant 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
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; and
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "1933 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
(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the
registrant's annual report pursuant to section 13(g) or 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.
Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to officers, directors and controlling persons
of the Company, 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 1933 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 an officer, director 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 competent jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the 1933 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 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 duly
authorized, in the City of New York and the State of New York, on the 30th day
of July, 1998.
BRIA COMMUNICATIONS CORPORATION
By: /s/ James Tilton
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James Tilton
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 dates indicated.
Date: July 30, 1998 /s/ James Tilton
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James Tilton, President
Date: July 30, 1998 /s/ Jane Zheng
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Jane Zheng, Secretary
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EXHIBIT 5.1
[Letterhead of Herbert M. Jacobi]
July 30, 1998
James Tilton, President
Bria Communications Corporation
8 West 38th Street, 9th Floor
New York, New York 10018
Gentlemen:
I am securities counsel for Bria Communications Corporation ("Bria"). You
have asked me to render this opinion to Bria.
You have advised that:
1. Bria is current in its reporting responsibilities to the Securities and
Exchange Commission as mandated by the Securities Exchange Act of 1934, as
amended;
2. James Tilton ("Tilton") is President and Director of Bria.
3. In order to induce Tilton to continue to act as a director and an
officer of Bria, Bria has agreed to issue its securities to Tilton.
4. The shares to be issued to Tilton are pursuant to corporate resolution
and the approval of the Board of Directors and the shares to be issued to Tilton
are to be registered pursuant to a Registration Statement on Form S-8.
I have read such documents as have been made available to me. For purposes
of this opinion, I have assumed the authenticity of such documents.
Based on the accuracy of the information supplied to me, it is my opinion
that Bria may avail itself of a Registration Statement on Form S-8 and is
qualified to do so, and further, it is my opinion that Tilton, is a proper
person qualified to receive shares which are registered in a Registration
Statement on Form S-8.
I consent to the use of my name in the Registration Statement filed on
Form S-8.
Very truly yours,
/s/ Herbert M. Jacobi
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Herbert M. Jacobi
EXHUBIT 24.2
[Letterhead of Andersen, Andersen & Strong, L.C.]
July 27, 1998
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the use of our
audit report dated June 8, 1998 (and to all reference to our Firm) included in
or made part of the Form S-8 registration statement of BRIA Communications
Corporation.
/s/ Andersen, Andersen & Strong
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Andersen, Andersen & Strong
