UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BLUE HOLDINGS, INC.
(Exact Name of Registrant as Specified in Its Charter)
NEVADA 88-0450923
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
5804 E. SLAUSON AVE.
COMMERCE, CALIFORNIS 90040
(Address of Principal Executive Offices) (Zip Code)
2005 STOCK INCENTIVE PLAN
(Full Title of the Plans)
PATRICK CHOW
CHIEF FINANCIAL OFFICER AND SECRETARY
BLUE HOLDINGS, INC.
5804 E. SLAUSON AVE.
COMMERCE, CALIFORNIA 90040
(Name and Address of Agent for Service)
(323) 725-5555
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
GREGORY AKSELRUD, ESQ.
STUBBS ALDERTON & MARKILES, LLP
15821 VENTURA BOULEVARD, SUITE 525
ENCINO, CALIFORNIA 91436
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Maximum Maximum
Title of Each Class Offering Aggregate Amount of
of Securities Amount to be Price Per Offering Registration
to be Registered Registered(1) Share(2) Price(2) Fee
------------------- ------------ --------- ----------- ------------
Common Stock,
par value $.001
per share ....... 2,500,000 $7.665 $19,162,500 $2,255.43
----------
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers such additional
shares as may hereinafter be offered or issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions
effected without the receipt of consideration.
(2) Determined in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the Registration Fee, on the basis of the
average of the bid and ask prices per share of Common Stock of the
Registrant on August 15, 2005.
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EXPLANATORY NOTE
This Registration Statement registers 2,500,000 shares of the Common Stock (the
"Common Stock"), par value $0.001 per share, of Blue Holdings, Inc., a Nevada
corporation (the "Registrant"), to be issued pursuant to the 2005 Stock
Incentive Plan.
--------------------------------------------------------------------------------
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I will be
sent or given to participants as specified by Rule 428(b)(1). Such documents are
not being filed with the Securities and Exchange Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. Such documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II of this Form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by the Registrant with the
Securities and Exchange Commission are incorporated in this Registration
Statement by reference:
(a) The Registrant's Current Reports on Form 8-K filed on February
10, 2005 (File #: 000-33297), February 16, 2005 (File #:
000-33297), February 22, 2005 (File #: 000-33297), March 28,
2005 (File #: 000-33297), April 15, 2005 (File #: 000-33297),
April 29, 2005, as amended on June 8, 2005 (File #:
000-33297), May 4, 2005 (File #: 000-33297), May 5, 2005 (File
#: 000-33297), June 7, 2005 (File #: 000-33297), June 10, 2005
(File #: 000-33297), June 30, 2005 (File #: 000-33297), July
7, 2005 (File #: 000-33297), July 14, 2005 (File #:
000-33297), August 3, 2005 (File #: 000-33297), and August 8,
2005 (File #: 000-33297);
(b) The Registrant's Quarterly Reports on Form 10-QSB for the
quarterly periods ended March 31, 2005 (File #: 000-33297) and
June 30, 2005 (File #: 000-33297);
(c) The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 2004 (File #: 000-33297); and
(d) The description of the Registrant's common stock as set forth
in its Form 10-SB registration statement on file with the
Commission (File #: 000-33297), including any amendments or
reports filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment 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.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Nevada Revised Statutes and certain provisions of our Bylaws under
certain circumstances provide for indemnification of our officers, directors and
controlling persons against liabilities which they may incur in such capacities.
A summary of the circumstances in which such indemnification is provided for is
contained herein, but this description is qualified in its entirety by reference
to our bylaws and to the statutory provisions.
In general, any officer, director, employee or agent may be indemnified
against expenses, fines, settlements or judgments arising in connection with a
legal proceeding to which such person is a party, if that person's actions were
in good faith, were believed to be in our best interest, and were not unlawful.
Unless such person is successful upon the merits in such an action,
indemnification may be awarded only after a determination by independent
decision of the board of directors, by legal counsel, or by a vote of the
shareholders, that the applicable standard of conduct was met by the person to
be indemnified.
The circumstances under which indemnification is granted in connection
with an action brought on our behalf is generally the same as those set forth
above; however, with respect to such actions, indemnification is granted only
with respect to expenses actually incurred in connection with the defense or
settlement of the action. In such actions, the person to be indemnified must
have acted in good faith and in a manner believed to have been in our best
interest, and have not been adjudged liable for negligence or misconduct.
Indemnification may also be granted pursuant to the terms of agreements
which may be entered in the future or pursuant to a vote of shareholders or
directors. The statutory provision cited above also grants the power to us to
purchase and maintain insurance which protects our officers and directors
against any liabilities incurred in connection with their service in such a
position, and such a policy may be obtained by us.
The Registrant has entered into separate but identical indemnity
agreements (the "Indemnity Agreements") with each director of the Registrant and
certain officers of the Registrant (the "Indemnitees"). Pursuant to the terms
and conditions of the Indemnity Agreements, the Registrant indemnified each
Indemnitee against any amounts which he or she becomes legally obligated to pay
in connection with any claim against him or her based upon any action or
inaction which he or she may commit, omit or suffer while acting in his or her
capacity as a director and/or officer of the Registrant or its subsidiaries,
provided, however, that the Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Registrant and, with respect to any criminal action, had no reasonable cause
to believe Indemnitee's conduct was unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
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ITEM 8. EXHIBITS.
THE FOLLOWING EXHIBITS ARE FILED AS PART OF THIS REGISTRATION
STATEMENT:
4.1 Articles of Incorporation of the Registrant filed February 9,
2000 (1)
4.2 Amendment to the Articles of Incorporation filed December 5,
2000 (1)
4.3 Amendment to the Articles of Incorporation filed January 5,
2001 (1)
4.4 Amendment to the Articles of Incorporation filed May 16, 2005
4.5 By-laws of the Company adopted February 12, 2000 (1)
5.1 Opinion of Stubbs Alderton & Markiles, LLP.
23.1 Consent of De Joya & Company
23.2 Consent of Weinberg & Company, P.C.
23.4 Consent of Stubbs Alderton & Markiles, LLP (included in
Exhibit 5.1)
24.1 Power of Attorney (included as part of the Signature Page of
this Registration Statement).
99.1 2005 Stock Incentive Plan.
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(1) Filed previously as an exhibit to the Registrant's Form 10-SB
registration statement (File #: 000-33297), filed with the Securities
and Exchange Commission on October 31, 2001, and again on May 1, 2002,
and incorporated herein by this reference.
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 to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this 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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or 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
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indemnification is against public policy as expressed in the Securities Act of
1933 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 of 1933 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,
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 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Commerce, California, on this 19th day of August, 2005.
BLUE HOLDINGS, INC.
(Registrant)
By: /S/ PAUL GUEZ
-----------------------------------
Paul Guez
Chief Executive Officer and President
(Principal Executive Officer)
By: /S/ PATRICK CHOW
-----------------------------------
Patrick Chow
Chief Financial Officer and Secretary
(Principal Financial and Accounting Officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints each
of Paul Guez and Patrick Chow as his true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution, for him and his name, place
and stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to this Registration Statement and to file a new
registration statement under Rule 461 or Instruction E of Form S-8 of the
Securities Act of 1933, as amended, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the foregoing, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their substitutes, may lawfully 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 below by the following persons in
the capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/S/ PAUL GUEZ Chairman, Chief Executive August 19, 2005
-------------------------- Officer and President
Paul Guez
/S/ PATRICK CHOW Chief Financial Officer August 19, 2005
-------------------------- and Secretary
Patrick Chow
/S/ KEVIN KEATING Director August 19, 2005
--------------------------
Kevin Keating
/S/ MARSHALL GELLER Director August 19, 2005
--------------------------
Marshall Geller
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EXHIBIT INDEX
EXHIBIT NO. EXHIBIT DESCRIPTION
4.1 Articles of Incorporation of the Registrant filed February 9,
2000 (1)
4.2 Amendment to the Articles of Incorporation filed December 5,
2000 (1)
4.3 Amendment to the Articles of Incorporation filed January 5,
2001 (1)
4.4 Amendment to the Articles of Incorporation filed May 16, 2005
4.5 By-laws of the Company adopted February 12, 2000 (1)
5.1 Opinion of Stubbs Alderton & Markiles, LLP
23.1 Consent of De Joya & Company
23.2 Consent of Weinberg & Company, P.C.
23.4 Consent of Stubbs Alderton & Markiles, LLP (included in
Exhibit 5.1)
24.1 Power of Attorney (included as part of the Signature Page of
this Registration Statement)
99.1 2005 Stock Incentive Plan.
----------
(1) Filed previously as an exhibit to the Registrant's Form 10-SB
registration statement (File #: 000-33297), filed with the Securities
and Exchange Commission on October 31, 2001, and again on May 1, 2002,
and incorporated herein by this reference.
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