UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BERGIO INTERNATIONAL, INC
(Exact name of registrant as specified in its charter)
| Delaware | | 27-1338257 |
| (State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
12 Daniel Road E.
Fairfield, NJ 07007
(Address of principal executive offices, including zip code)
Bergio International, Inc. 2011 Incentive Stock Plan
(Full title of the plan)
(973) 227-3230
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | [ ] | | Accelerated filer | [ ] |
| Non-accelerated filer | [ ] | | Smaller reporting company | [X] |
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CALCULATION OF REGISTRATION FEE
Title of securities to be registered | Amount to be Registered (1) | Proposed maximum offering price per share | Proposed maximum aggregate offering price | Amount of registration fee |
| | | | | |
| Common Shares, par value $0.0001 per share | 30,000,000 (2) | $0.0032 | $ 96,000(4) | $ 13.10 |
| | | | | |
| Common Shares previously registered | 5,000,000 (3) | N/A (3) | 5,000,000 (3) | N/A |
(1)
This registration statement shall also cover an indeterminate number of additional shares of common stock which become issuable by reason of any stock dividends, stock splits, recapitalizations or similar transactions that result in an increase in the number of outstanding shares of common stock of the registrant, in accordance with Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”).
(2)
This registration statement registers 30,000,000 shares of common stock that are available for issuance under the Bergio International, Inc. 2011 Incentive Stock Plan (the “Plan”). On October 11, 2012 the Plan was amended to increase the authorized shares of common stock available for issuance to the Plan from 5,000,000 to 35,000,000. Currently, there are 446,447 shares of the registrant’s common stock available for issuance under the Plan.
(3)
Previously, the registrant registered 5,000,000 shares of its common stock on a registration statement on Form S-8 (Registration No. 333-174100) filed with the Securities and Exchange Commission on May 5, 2011 (the “Previous Registration Statement”). Of the 5,000,000 shares registered under the Previous Registration Statement, 4,533,553 shares of common stock have been issued, leaving a balance of 446,447 registered shares of the common stock of the registrant that may be issued pursuant to the Previous Registration Statement.
(4)
Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act of 1933, using the closing price as reported on the OTC Markets on October 5, 2012 of $0.0032 per share.
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PART I
INFORMATION REQUIRED IN SECTION 10(a) OF THE PROSPECTUS
EXPLANATORY NOTE
This registration statement on Form S-8 is being filed to register an additional 30,000,000 shares of common stock, par value $0.001 per share, of Bergio International, Inc. (the “Company”) for issuance under Bergio International, Inc. 2011 Incentive Stock Plan (the “Plan”). On October 11, 2012 the Plan was amended to increase the authorized shares of common stock available for issuance to the Plan from 5,000,000 to 35,000,000. Pursuant to and as permitted under General Instruction E to Form S-8, the Company incorporates by reference into this registration statement, except to the extent supplemented, amended or superseded by the information set forth herein, the entire contents of the registration statement on Form S-8 (Registration No. 333-174100) filed with the Securities and Exchange Commission (the “Commission”) on May 5, 2011.
Item 1. Plan Information.
Information required by Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and the Note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be sent or given to the eligible employees and consultants as specified by Commission Rule 428(b)(1). Such documents need not be and are not filed with the Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Incentive Compensation Plan Annual Information.
Upon written or oral request, any of the documents incorporated by reference in Item 3 of Part II of this registration statement (which documents are incorporated by reference in this Section 10(a) Prospectus) and any other documents required to be delivered to eligible employees and consultants pursuant to Rule 428(b) are available without charge by contacting:
Corporate Secretary
12 Daniel Road E.
Fairfield, NJ 07007
(973) 227-3230
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Bergio International, Inc. (the “Registrant”) pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), respectively, are incorporated herein by reference:
(a)
The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011, as filed with the Commission on April 3, 2012; and
(b)
The Registrant’s Quarterly Reports on Form 10-Q and 10-Q/A for the quarters ended March 31, 2012 and June 30, 2012, respectively;
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereby 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 filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference into this registration statement shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in this registration statement or in any other subsequently filed document which also is or is deemed to be incorporated by reference into this registration statement modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
Nothing in this registration statement shall be deemed to incorporate information furnished but not filed with the Commission pursuant to Item 2.02 or Item 7.01 of Form 8-K.
Item 4. Description of Securities.
Common Stock
We have 500,000,000 shares of common stock, par value of $0.001 per share (“Common Stock”), authorized, of which 224,284,850 shares were outstanding as of October 10, 2012.
Voting Rights
Holders of Common Stock have the right to cast one vote for each share of Common Stock held in such holder’s name on our books and records, whether represented in person or by proxy, on all matters submitted to a vote of holders of Common Stock, including, without limitation, the election of directors; provided, however , that, except as otherwise required by law, holders of our Common Stock shall not be entitled to vote on any amendment to our Certificate of Incorporation (as amended on October 21, 2009, the “Certificate”) (including any certificate of designation filed with respect to any series of our preferred stock) that relates solely to the terms of one or more outstanding series of preferred stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon by law or pursuant to our Certificate (including any certificate of designation filed with respect to any series of our preferred stock).
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There is no right to cumulative voting in the election of directors. Except where a greater requirement is provided by statute or by our Certificate or Bylaws, the presence, in person or by proxy duly authorized, of the holder or holders of a majority of the outstanding shares of the our voting Common Stock shall constitute a quorum for the transaction of business, and the votes of the holder or holders of a majority of the outstanding shares of our voting Common Stock constituting a quorum shall constitute an action by our stockholders.
Notwithstanding any other provisions of the Certificate or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the Company required by law or by the Certificate or any certificate of designation filed with respect to a series of preferred stock, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding shares of capital stock of the Company entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend or repeal Articles V (Board of Directors), VI (Indemnification), VIII (Amendment to Certificate of Incorporation), IX (Amendment of Bylaws), X (Shareholder Action) or XI (Shareholder Meetings) of the Certificate.
The Board is expressly empowered to adopt, amend or repeal the Bylaws. The stockholders shall also have power to adopt, amend or repeal the Bylaws; provided, however , that, in addition to any vote of the holders of any of our class or series of stock required by law or by the Certificate , the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the voting power of all of the then-outstanding shares of our capital stock entitled to vote generally in the election of directors, voting together as a single class, shall be required to adopt, amend or repeal any provision of the Bylaws.
Special meetings of the stockholders shall be called only by the President, the Chief Executive Officer, the Chairman of the Board, or a majority of the Board.
Dividends
There are no restrictions in our Certificate or Bylaws that restrict us from declaring dividends. The Delaware General Corporation Law (“DGCL”) provides that a corporation may pay dividends out of our surplus or net profits legally available therefor.
We have not declared any dividends, and we do not plan to declare any dividends in the foreseeable future.
Pre-emptive Rights; Liquidation
No holder of shares of our stock shall have any preemptive or other right, except as such rights are expressly provided by contract, to purchase or subscribe for or receive any shares of any class, or series thereof, of our stock, whether now or hereafter authorized, or any warrants, options, bonds, debentures or other securities convertible into, exchangeable for or carrying any right to purchase any share of any class, or series thereof, of stock; but such additional shares of stock and such warrants, options, bonds, debentures or other securities convertible into, exchangeable for or carrying any right to purchase any shares of any class, or series thereof, of stock may be issued or disposed of by our Board of Directors (the “Board”) to such persons, and on such terms and for such lawful consideration as in its discretion it shall deem advisable or as we shall have by contract agreed.
Holders of our Common Stock are not entitled to subscription rights, conversion rights or liquidation rights. There are no redemption or sinking fund provisions applicable to our Common Stock. All outstanding shares of Common Stock are, and the shares of Common Stock offered hereby will be, when issued, fully paid and non-assessable.
Preferred Stock
We have 10,000,000 shares of preferred stock, par value of $0.001 per share (“Preferred Stock”), authorized, of which 51 have been designated as Series A Preferred Stock and currently are issued and outstanding.
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Our shares of Preferred Stock may be issued from time to time in one or more series. Our Board is authorized to provide for the issue of all or any of the shares of the Preferred Stock in one or more series, and to fix the number of shares and to determine or alter for each such series, such voting powers, full or limited, or no voting powers, and such designation, preferences, and relative, participating, optional, or other rights and such qualifications, limitations, or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Board providing for the issuance of such shares and as may be permitted by the DGCL.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of common stock offered hereby will be passed upon for the Registrant by Lucosky Brookman LLP (the “Firm”), 33 Wood Avenue South, 6th Floor, Iselin, NJ 08830. Certain partners or employees of Lucosky Brookman LLP may be issued shares of common stock under the Plan from time to time in connection with payment for legal services to be rendered pursuant to the terms of a written engagement agreement. Neither the Firm, nor any partners or employees have or is to receive a substantial interest direct or indirect in the Registrant, nor are any of them connected with the Registrant other than in their role as outside legal counsel for the Registrant.
Item 6. Indemnification of Directors and Officers.
Paragraph A of Article VI of our Certificate of Incorporation provides for the elimination of liability of directors as permitted by Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”). Section 102(b)(7) allows a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director for violations of the director’s fiduciary duty, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions), or (iv) for any transaction from which the director derived an improper personal benefit.
Paragraph B of Article VI of our Certificate of Incorporation provide for indemnification of directors, officers, employees and agents as permitted by Section 145 of the DGCL. Section 145 provides that a corporation may indemnify any persons, including officers and directors, who are, or are threatened to be made, parties to any threatened, pending or completed legal 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 is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the person acted in good faith and in a manner he/she reasonably believed to be in or not opposed to the best interests of the corporation, and had no reasonable cause to believe his/her conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. If a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by a director, officer or controlling person of our Company 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) we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
INDEX TO EXHIBITS
| Exhibit Number | | Exhibit |
| | ||
4.1 | | Bergio International, Inc. 2011 Incentive Stock Plan, as amended* |
| | ||
5.1 | | Opinion of Lucosky Brookman LLP.* |
| | ||
23.1 | | Consent of Independent Registered Public Accounting Firm, Silberstein Ungar, PLLC.* |
| | ||
23.2 | | Consent of Lucosky Brookman LLP (contained in the Opinion filed as Exhibit 5.1). |
| | ||
24.1 | | Power of Attorney (contained on the signature pages hereto). |
*Filed herewith
The exhibits filed herewith or incorporated by reference herein are set forth in the Exhibit Index filed as part of this registration statement.
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Item 9. Undertakings.
(a)
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:
(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 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar 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) (§230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than 20% 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 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, That (A) Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S–8 (§239.16b of this chapter), and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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.
(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)
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) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to 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.
(h)
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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 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, 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 Fairfield, State of New Jersey, on the 12th day of October, 2012.
| | Bergio International, Inc. | |
| | | |
| | By: | /s/ Berge Abajian |
| | Berge Abajian | |
| | Chief Executive Officer | |
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | | Title | | Date |
| | | | | |
| /s/ Berge Abajian Berge Abajian | | Chief Executive Officer and Chairman | | October 12, 2012 |
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