SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BRL HOLDINGS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 88-0218411
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(State or other jurisdiction of (I. R. S. Employment Number)
incorporation or organization)
200 PERIMETER ROAD
MANCHESTER, NH 03130
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(Address of Principal Executive Offices)
(603) 641-8443
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(Issuer's Telephone Number, including Area Code)
CONSULTANT STOCK FOR SERVICES JUNE 2003
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(Full title of the Plan)
R. BRUCE REEVES 200 PERIMETER ROAD
MANCHESTER, NH 03103
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(Name and Address of Agent for Service)
(603) 641-8443
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(Telephone number including area code, 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 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, CHECK THE FOLLOWING BOX: [ ]
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CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Proposed
Class of Maximum Maximum Amount of
Securities to Amount to Price per Aggregate Registration
be Registered be Registered(1) Unit/Share Offering Price Fee(2)
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$0.01 par
value common
voting stock 2,000,000 $0.06 $120,000 $9.71
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(1) Pursuant to Consulting Agreements for services rendered. None of the
Consultants is believed presently to be an "affiliate" of the Registrant;
however, if any becomes an "affiliate" at any time that he or she owns
securities that are registered hereunder, resales by that person must also be
made in compliance with applicable provisions of Rule 144.
(2) Calculated according to Rule 230.457(h) of the Securities and Exchange
Commission, based upon the exercise price of the options covering the underlying
common stock to be issued under the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
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A copy of our ("BRL Holdings, Inc.," or the "Company," "we," "our" and "us"
or words of similar import) proforma written Consulting Agreement (the
"Consulting Agreements") is attached hereto and incorporated herein by
reference. (See the Exhibit Index)
Item 2. Registrant Information and Employee Plan Annual Information.
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Not Applicable.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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We are subject to the information requirements of the Securities Exchange
Act of 1934 (the "Exchange Act") and, in accordance with the Exchange Act, we
file reports with the Securities and Exchange Commission. The documents listed
below are hereby incorporated by reference into this Registration Statement on
Form S-8; and all documents subsequently filed by us pursuant to Sections 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 registered and offered hereby have
been sold or which de-registers all securities remaining unsold, shall be deemed
to be incorporated herein by reference in this Registration Statement, and shall
be a part hereof from the date of the filings of such documents.
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(a) Our Annual Report on Form 10-KSB for the fiscal year ended June 30,
2002, filed November 14, 2002; and
(b) All of our other reports filed pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act during the past twelve months, along with all
other reports filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act since June 30, 2002, including, but not limited to our 8-K Current
Report dated October 2, 2002, which was filed October 4, 2002; our 8-K/A Current
Report dated October 2, 2002, which was filed November 6, 2002; our 8-K Current
Report dated April 1, 2002, which was filed November 7, 2002; our Definitive
Information Statement which was filed November 25, 2002; Our Quarterly Report on
Form 10-QSB for the quarter ended September 30, 2002, which was filed November
19, 2002; and our 8-K Current Report dated November 20, 2002, which was filed
November 20, 2002; our Form 10-QSB for the quarter ended December 31, 2002 which
was filed February 18, 2003; OUR Form 10-QSB for the quarter ended March 31,
2003 which was filed May 19, 2003;
(c) We are authorized to issue two class of securities, that are comprised
of $0.01 par value common voting stock, and a class of preferred stock with a
$0.10 par value, of which no shares are issued or outstanding.
The holders of our $0.01 par value common stock have traditional rights as
to voting, dividends and liquidation. All shares of common stock are entitled to
one vote on all matters; there are no pre-emptive rights and cumulative voting
is not allowed. The common stock is not subject to redemption and carries no
subscription or conversion rights. In the event of our liquidation, the holders
of our common stock are entitled to share equally in corporate assets after
satisfaction of all liabilities.
Item 4. Description of Securities.
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Not applicable; however, see Item 3(c) above.
Item 5. Interest of Named Experts and Counsel.
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The validity of the authorization and issuance of the common stock being
registered hereby will be passed upon by John B.Lowy, P.C.
Item 6. Indemnification of Directors and Officers.
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Under the Delaware General Corporation Law, a corporation has the power to
indemnify any person who is made a party to any civil, criminal, administrative
or investigative proceeding, other than an action by or in the right of the
corporation, by reason of the fact that such person was a director, officer,
employee or agent of the corporation, against expenses, including reasonable
attorneys' fees, judgments, fines and amounts paid in settlement of any such
actions; provided, however, in any criminal proceeding, the indemnified person
shall have had no reason to believe the conduct committed was unlawful.
Item 7. Exemption from Registration Claimed.
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Not applicable.
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Item 8. Exhibits.
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Exhibit
Number
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5 Opinion and Consent of John B. Lowy, P.C. re the legality of the
securities registered.
23.1 Consent of John B. Lowy, P.C., to use the opinion with respect to the
legality of the securities being registered is contained in Exhibit 5
above.
23.2 Consent of Stephen Diamond, Certified Public Accountant
99.2.5 Form of Consulting Agreement
Item 9. Undertakings.
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We hereby undertake:
(a) (1) 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 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and
(iii) To include any additional or changed 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; provided, however,
only to the extent required by the general rules and regulations
of the Securities and Exchange Commission.
(2) That, for the purpose of determining any liability under the
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.
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(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) That for purposes of determining any liability under the 1933 Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the 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.
(h) Insofar as indemnification for liabilities arising under the Securities
Act, as amended, may be permitted to directors, executive officers and
controlling persons of the Registrant as outlined above 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, executive officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, executive 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 of 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 Section 13 or 15(d) of the Exchange Act of
1934, 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 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, on the date set forth below.
BRL Holdings, Inc.
Date: June , 2003 By: Nataliya Hearn, Ph.D.
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Nataliya Hearn, President
Pursuant to the requirements of the Securities Act, the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated have signed this registration statement below.
Date: By:
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Nataliya Hearn, President
and Director
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Date: By:
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Gerald Enloe, Director
Date: By:
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Jim Morin, Treasurer
and Director
Securities and Exchange Commission File No.000-15260
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BRL HOLDINGS, INC.
EXHIBIT INDEX
Exhibit
Number
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5 Opinion regarding Legality
23.1 Consent of John B. Lowy, P.C. contained in Exhibit 5
23.2 Consent of Stephen Diamond
Certified Public Accountants
99.2.5 Form of Consulting Agreement
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June 10, 2003
BRL Holdings, Inc.
D/b/a Element 21
200 Perimeter Road
Manchester, NH 03103
Gentlemen:
We have reviewed a Registration Statement on Form S-8 (the "Registration
Statement"), to be filed with the Securities and Exchange Commission, relating
to 2,000,000 shares of common stock, $.01 par value per share (the "Shares") of
BRL Holdings, Inc (the "Company"), which shares have been issued pursuant to
certain Company's consulting agreements and employment agreements, the forms of
which are filed as an exhibit to the Registration Statement (the "Agreement").
We have examined the Certificate of Incorporation, as amended, and the
By-Laws of the Company and all amendments thereto, the Registration Statement
and originals, or copies certified to our satisfaction, of such records of
meetings written actions in lieu of meetings, or resolutions adopted at
meetings, of the directors of the Company, and such other documents and
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below.
In examination of the foregoing documents, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified or photo static copies, and the authenticity of the originals of
such latter documents.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly and validly authorized for issuance under the Agreement,
and the Shares, when issued against payment therefore in accordance with the
terms of their agreements, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
JBL:ah John B. Lowy, P.C.
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CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in BRL Holdings, Inc. Form S-8
dated June 10, 2003 of our audit report dated November 12, 2002 on the financial
statements of BRL Holdings, Inc. as of and for the year ended June 30, 2002,
which is included in BRL Holdings, Inc.'s annual Report on Form 10-KSB for the
year ended June 30, 2002.
Stephen A. Diamond
1200 Sheppard Ave. E. Suite 203
North York, Ontario
Canada M2K 2S5
June 10, 2003
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PROFORMA CONSULTANT AGREEMENT
This Consultant Agreement ("Agreement") is made by BRL Holdings, Inc.,
d/b/a Element 21 ("Element 21") having a place of business at 200 Perimeter
Road, Manchester, N.H. 03103, its successors and subsidiaries worldwide, and
______________________________ ("Consultant") with his/her principal office at
________________________________ ______________________________, and effective
this _____ day of ______________, 20___ ("Effective Date") for the purpose of
setting forth the exclusive terms and conditions by which Element 21 acquires
Consultant's services on a temporary basis.
In consideration of the mutual obligations specified in this Agreement, and
any compensation paid to Consultant for their services, the parties agree to the
following:
1. Work To Be Performed By Consultant
(a) Initially this Agreement shall expire on________________, but may be
extended month by month on written agreement of the parties.
(b) Consultant is hereby engaged by Element 21 to perform the work defined
in the Work Statement in Appendix A. (Include work milestones, dates, fixed
payments and any other pertinent information - if any.)
(c) Element 21, at its sole discretion, may change the Work Statement at
any time by giving written notice to Consultant. Immediately upon receipt of
written notice from Element 21 narrowing the Work Statement, the Work Statement
is deemed to be amended accordingly, and Consultant will cease any work on the
portion of the Work Statement that is deleted.
(d) Element 21 may request that the Work Statement be broadened and
Consultant will negotiate in good faith with ATS to amend the Work Statement to
include the broadened work.
(e) Element 21 may request that the Work Statement be otherwise amended
without narrowing or broadening the Work Statement and Consultant will negotiate
in good faith with Element 21 to amend the Work Statement. Examples are changes
in milestones and fixed payments.
(f) This Consultant Agreement with Consultant is personal and any work to
be performed under it cannot be assigned to other s without the written approval
of Element 21.
2. Compensation: Consultant hereby agrees to accept, as consideration for
services rendered to the Company ______________ shares of the Company's Common
Stock issued. Consultant acknowledges that the aforementioned Shares are in full
payment for services rendered and Consultant further acknowledges that the stock
has a value of ___ per share at this time. Consultant further acknowledges that:
3. Non-Disclosure And Trade Secrets
(a) During the term of this Agreement and in the course of Consultant's
performance hereunder, Consultant will receive and otherwise be exposed to
highly confidential information belonging to Element 21, its customers,
suppliers and others. Such confidential information includes, but is not limited
to, Element 21's marketing and customer support strategies, Element 21'ss
financial information including sales, costs, profits, and pricing methods,
Element 21's internal organization, employee lists and customer lists, Element
21's technology including discoveries, inventions, research and development
efforts, manufacturing processes, hardware/software design and maintenance
tools, and hardware/software product know-how and show-how, and all derivatives,
improvements, and enhancements to any of the above which are created or
developed by Consultant under this Agreement (collectively referred to as
"Information").
(b) Such Information may or may not contain legends or other written notice
that is of a confidential nature. Such Information shall not be considered
confidential if it: (a) was in the public domain or becomes part of the public
domain, by publication or otherwise, except by an unauthorized act of Consultant
or someone else.
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(c) Consultant acknowledges the highly confidential character of the
Information, and agrees that the Information is the sole, exclusive and
extremely valuable property of Element 21 or third parties, and wrongful
disclosure to others will cause irreparable harm to Element 21 or the third
party owners. Consultant agrees not to reproduce any of the Information except
as is necessary in the performance of work contemplated under this Agreement,
and not to divulge all or any part of the Information in any form to any third
party, either during or after expiration or termination of this Agreement.
(d) Element 21 shall exercise reasonable care either to prominently and
legibly mark all corporeal forms of Information supplied to Consultant with the
legend "Confidential" or equivalent, or, if the Information is originally
provided to Consultant without a "Confidential" legend, it shall be considered
Confidential under this Agreement if such information is identified to
Consultant as being Confidential within ten (10) business days of its original
disclosure.
(e) Upon expiration or termination of this Agreement for any reason,
Consultant agrees to cease using and to return to Element 21 all whole and
partial copies and derivatives of Element 21's Information, whether in
Consultant's possession or under Consultant's direct or indirect control,
including any computer access nodes and/or codes.
(f) Consultant shall not disclose or otherwise make available to Element 21
in any manner any confidential and proprietary information received by
Consultant from third parties.
(g) This Section 3 shall survive the termination of this Agreement for any
reason.
4. Ownership Of Work Product
(a) Consultant agrees that any and all work product, ideas, improvements,
inventions, copyrights, trademarks and trade secrets ("work product") conceived,
created or first reduced to practice in the performance of work under this
Agreement for Element 21 are a "work for hire" and Element 21 shall be vested
with all rights, title, and interests including patents, copyrights, trade
secrets and trademark rights in Consultant's work product. Consultant agrees
that they shall execute all papers including, but not limited to, patent and
copyright applications, patent and copyright assignments, and shall otherwise
assist Element 21, at Element21's expense, and as reasonably necessary to
perfect all Element 21's rights, title and other interests in Consultant's work
product.
(b) This section 4 shall survive the expiration or termination of this
Agreement for any reason.
5. Indemnification / Release
(a) Consultant agrees to take all reasonable precautions to prevent injury
to any persons (including employees of Element 21) or damage to Element 21's
property while at Element 21's work site. Consultant shall indemnify and hold
Element 21 and its officers, agents, directors, and employees harmless against
all claims, losses, expenses (including reasonable attorney's fees), and
injuries to person or property (including death) resulting in any way, from any
negligence on the part of Consultant in the performance or failure to perform
the Scope of Work under this Agreement, excepting only those losses which are
due solely and directly to Element 21's negligence.
(b) Consultant warrants that he/she has good and marketable title to all
work product made, created, conceived, written, invented, or provided by
Consultant to Element 21 while fulfilling the requirements of the Work Statement
of this Agreement. Consultant further warrants that work product created for
Element 21 shall be free and clear of all liens, claims, encumbrances, or
demands of third parties, including any claims by any such third parties of any
right, title, or interest in or to the work product arising out of any trade
secret, copyright, or patent. Consultant shall indemnify, defend, and hold
harmless Element 21 and its customers from any all liability, loss, costs,
damage, judgment, or expense (including reasonable attorney's fees) resulting
from or arising in any way out of any such claims by any third parties, and/or
which are based upon, or are the result of any breach of the warranties
contained in this section (b). In the event of a breach of warranty, Consultant
shall, at no additional cost to Element 21, replace or modify the work product
with a functionally equivalent and conforming work product, obtain for Element
21 the right to continue using the work product and in all other respects use
its best efforts to remedy the breach. Consultant shall have no liability under
this section for any work product created in accordance with detailed and
specific design instructions created by ATS.
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(c) Should Element 21 permit Consultant to use any of Element 21's
equipment, tools, or facilities during the term of this Agreement, such
permission will be gratuitous and Consultant shall indemnify and hold harmless
Element 21 and its officers, directors, agents, and employees, from and against
any claim, loss, expense, or judgment for injury to person or property
(including death) arising out of the negligent use of any such equipment, tools,
or facilities.
6. Termination
(a) Either Element 21 or Consultant may terminate this Agreement in the
event of a material breach of the Agreement that is not cured within ten (10)
business days after written notice to the breaching party of such breach.
Material breaches include, but are not limited to, the filing of bankruptcy
papers or other similar arrangements due to insolvency, the assignment of
Consultant's obligations to perform to third parties, or acceptance of
employment or consulting arrangements with third parties that are or may be
detrimental to Element 21's business interests.
(b) Element 21 may terminate the Agreement for convenience upon written
notice to Consultant. In such event, Consultant shall cease work immediately
after receiving such written notice from Element 21 unless otherwise advised by
Element 21, and shall notify Element 21 of costs incurred up to the termination
date. Element 21 shall reimburse Consultant for all costs incurred until notice
of termination.
7. Independent Contractor
(a) Consultant is an Independent Contractor, is not an agent or employee of
Element 21, and is not authorized to act on behalf of Element 21.
(b) If Consultant is to autonomously perform work under this Agreement,
Element 21 is entitled to provide Consultant with general guidance to assist
Consultant in completing the scope of work to Element 21'ss satisfaction,
nevertheless Consultant is ultimately responsible for directing and controlling
the performance of the tasks comprising the scope of work, in accordance with
the terms and conditions of this Agreement.
8. General
(a) Except for a reduction in Work Statement as defined in Section I, this
Agreement may not be changed unless mutually agreed upon in writing by both
parties. In the event any provision of this Agreement is found to be legally
unenforceable, such provision will be changed to make it legally enforceable,
and such unenforceability shall not prevent enforcement of any other provision
of the Agreement.
(b) Not withstanding any other provisions of this Agreement, Consultant
agrees not to export, directly or indirectly, any United States source technical
data acquired from Element 21 or any products utilizing such data to any
countries outside the United States which export may be in violation of the
United States Export Laws or Regulations. Nothing in this section releases
Consultant from any obligation stated elsewhere in this Agreement not to
disclose such data.
(c) If Contractor breaches any of its covenants expressed in this
Agreement, he/she agrees that such a breach may cause irreparable harm to
Element 21, and Element 21 shall have the right to seek equitable relief to
enjoin further breach.
(d) This Agreement shall be governed by the Laws of the State of New
Hampshire, without resort to its rules regarding conflict of laws. In the event
that any dispute arises respecting this Agreement, the parties stipulate in
advance that the courts in New Hampshire shall be the proper venue for the
resolution of such dispute.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
BRL Holdings, Inc. (d/b/a Element 21) Consultant
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Signed, Duly Authorized Signed
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Printed Name Printed Name
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Position/Title Position/Title
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Date Date
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SSN / Fed. Tax No.
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