AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 23, 2002
REGISTRATION NO.: 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MILITARY RESALE GROUP, INC.
(Exact Name of Registrant as Specified in its Charter)
NEW YORK 11-2665282
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2180 EXECUTIVE CIRCLE
COLORADO SPRINGS, COLORADO 80906
(Address of Principal Executive Offices) (Zip Code)
2001 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
ETHAN D. HOKIT
PRESIDENT
MILITARY RESALE GROUP, INC.
2180 EXECUTIVE CIRCLE
COLORADO SPRINGS, COLORADO 80906
(Name and Address of Agent for Service)
(719) 391-4564
(Telephone Number, Including Area Code, of Agent for Service)
COPY TO:
ERIC M. HELLIGE, ESQ.
PRYOR CASHMAN SHERMAN & FLYNN LLP
410 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 421-4100
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Each Class of Amount to Price Per Offering Registration
Securities to be Registered be Registered* Share** Price Fee
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Common Stock, $.0001 par value......... 900,000 Shares $0.90 $810,000.00 $74.52
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* All the securities registered hereby are issuable under the Plan.
** Estimated solely for the purpose of calculating the registration fee and
computed in accordance with Rule 457(c) under the Securities Act of 1933,
upon the basis of the closing price per share of the Registrant's common
stock as reported on the Over the Counter Bulletin Board on January 15, 2002.
PART I
INFORMATION REQUIRED IN THE 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRATION INFORMATION AND 2001 EQUITY INCENTIVE PLAN INFORMATION.*
* The information required by Items 1 and 2 of Part I of Form S-8 is
omitted from this Registration Statement in accordance with the Note
to Part I of Form S-8 and Rule 428 promulgated under the Securities
Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, and all documents subsequently filed by
Military Resale Group, Inc. (the "Company") pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment to the Registration
Statement 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 in this Registration Statement and shall be deemed to
be a part hereof from the date of the filing of such documents:
(1) the Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 2000;
(2) the Company's Quarterly Report on Form 10-QSB for the fiscal
quarters ended March 31, 2001, June 30, 2001 and September 30,
2001; and
(3) the Company's Current Report on Form 8-K (File No. 000-26463)
dated November 20, 2001;
(4) the Company's Proxy Statement (File No. 000-26463) relating to
the Annual Meeting of Shareholders held on December 4, 2001; and
(5) the description of our common stock and our articles of
incorporation and bylaws, both contained in our Registration
Statement on Form SB-2 (File No. 333-75630), dated December
20, 2001, including any amendment or report filed for the purpose
of updating such information.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Sections 721 through 725 of the Business
Corporation Law of the State of New York (the "NYBCL"), which provides for
indemnification of directors and officers of New York corporations under certain
circumstances.
Section 722 of the NYBCL provides that a corporation may indemnify
directors and officers as well as other employees and individuals against
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees, in connection with actions or proceedings, whether civil or
criminal (other than an action by or in the right of the corporation, a
"derivation action"), if they acted in good faith and in a manner they
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 their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to amounts paid in settlement and reasonable expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
actions, and the statute does not apply in respect of a threatened action, or a
pending action that is settled or otherwise disposed of, and requires court
approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. Section 721 of the
NYBCL provides that Article 7 of the BCL is not exclusive of other
indemnification that may be granted by a corporation's certificate of
incorporation, disinterested director vote, shareholder vote, agreement or
otherwise.
Article 7 of our Restated Certificate of Incorporation requires us to
indemnify our officers and directors to the fullest extent permitted under the
NYBCL. Furthermore, Article XII of our Amended and Restated By-laws provides
that we may, to the full extent permitted and in the manner required by the laws
of the State of New York, indemnify any officer or director (and the heirs and
legal representatives of any such person) made, or threatened to be made, a
party in an action or proceeding (including, without limitation, one by us or in
our right to procure a judgment in our favor), whether civil or criminal,
including an action by or in the right of any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan or other enterprise, which of our directors or officers served in
any
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capacity at our request, by reason of the fact that such director or officer, or
such director's or officer's testator or intestate, was a director or officer of
ours or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity.
Section 402(b) of the NYBCL provides that a corporation's certificate
of incorporation may include a provision that eliminates or limits the personal
liability of the corporation's directors to the corporation or its shareholders
for damages for any breach of a director's duty, provided that such provision
does not eliminate or limit (1) the liability of any director if a judgment or
other final adjudication adverse to the director establishes that the director's
acts or omissions were in bad faith or involved intentional misconduct or a
knowing violation of law or that the director personally gained a financial
profit or other advantage to which the director was not legally entitled or that
the director's acts violated Section 719 of the NYBCL, or (2) the liability of
any director for any act or omission prior to the adoption of a provision
authorized by Section 402(b) of the NYBCL. Article 7 of our Restated Certificate
of Incorporation provides that none of our directors shall be liable to us or
our shareholders for any breach of duty in such capacity except for liability in
the event a judgment or other final adjudication adverse to a director
establishes that his or her acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law or that the director
personally gained, in fact, a financial profit or other advantage to which he or
she was not legally entitled or that such director's acts violated Section 719,
or its successor, of the NYBCL.
Any amendment to or repeal of our Restated Certificate of
Incorporation or by-laws shall not adversely affect any right or protection of
any of our directors or officers for or with respect to any acts or omissions of
such director or officer occurring prior to such amendment or repeal.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers or controlling
persons pursuant to the foregoing, we have been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS.
EXHIBIT
NO. DESCRIPTION
4.1 Specimen Stock Certificate
5.1 Opinion of Pryor Cashman Sherman & Flynn LLP (regarding validity of
common stock being registered).
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10.1 Military Resale Group, Inc. 2001 Equity Incentive Plan.
23.1 Consent of Pryor Cashman Sherman & Flynn LLP (included in its opinion
filed as Exhibit 5.1).
23.2 Consent of Puritz & Weintraub, LLP.
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 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;
(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; 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 Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
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.
Insofar as indemnification for liabilities arising under the
Securities Act 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 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, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, we certify that we have reasonable grounds to believe that we meet all
the requirements for filing on Form S-8 and have duly caused this registration
statement to be signed on our behalf by the undersigned, thereunto duly
authorized, in Colorado Springs, Colorado on this 22 day of January 2002.
MILITARY RESALE GROUP, INC.
By: /s/ ETHAN D. HOKIT
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Name: Ethan D. Hokit
Title: President and Chief Operating Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Ethan D. Hokit or Edward T. Whelan
or any one of them, his or her attorneys-in-fact and agents, each with full
power of substitution and resubstitution for him or her in any and all
capacities, to sign any or all amendments or post-effective amendments to this
registration statement or a registration statement prepared in accordance with
Rule 462 of the Securities Act of 1933, as amended, and to file the same, with
exhibits thereto and other documents in connection herewith or in connection
with the registration of the offered securities under the Securities Exchange
Act of 1934, as amended, with the Securities and Exchange Commission, granting
unto each of such attorneys-in-fact and agents full power to do and perform each
and every act and thing requisite and necessary in connection with such matters
and hereby ratifying and confirming all that each of such attorneys-in-fact and
agents or his or her substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ EDWARD T. WHELAN Chairman of the Board and January 23, 2002
------------------------- Chief Executive Officer
(Principle Executive Officer)
/s/ ETHAN D. HOKIT President, Chief Operating January 23, 2002
------------------------- Officer and Director
(Principle Accounting Officer) January 23, 2002
/s/RICHARD H. TANENBAUM Director January 23, 2002
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