As filed with the Securities and Exchange Commission on March 5, 1999
Registration No. 333-______________
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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
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(State of Incorporation) (IRS Employer Identification No.)
14988 N. 78th Way, Suite 203
Scottsdale, AZ 85260
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(Address of principal executive offices)
Director Compensation Plan
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(Full title of the plans)
CHARLES D. SNEAD, JR.
President
14988 N. 78th Way, Suite 203
Scottsdale, AZ 85260
(602) 483-1466
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(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]
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CALCULATION OF REGISTRATION FEE
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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
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Common Stock,
par value $. 70,000 $0.6875 $48,125.00 $13.38
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(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.
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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.
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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.
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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
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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,
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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.
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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.
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Charles D. Snead, Jr., President, Chief Executive
Officer, Treasurer and Chief Financial Officer
(Principal Executive Officer)
Dated: March 5, 1999 /s/ Stephen T. Meadow
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Stephen T. Meadow, Secretary and Director
INDEX TO EXHIBITS
Exhibit
No.
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5 Opinion of Cruse, Firetag & Bock, PC, Counsel to the Company.
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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
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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
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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.
