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As filed with the Securities and Exchange Commission on September 15, 2000.
Registration No. 333-______
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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MDU COMMUNICATIONS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-1342898
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
108 - 11951 HAMMERSMITH WAY, RICHMOND, B.C., CANADA, V7A 5H9
(Address, including zip code, of registrant's
principal executive offices)
THE 2000 INCENTIVE STOCK OPTION PLAN (ISO & NON-ISO)
(Full title of the plan)
ROBERT A. BIAGIONI
CHIEF FINANCIAL OFFICER
MDU COMMUNICATIONS INTERNATIONAL, INC.
108-11951 HAMMERSMITH WAY
RICHMOND, B.C., CANADA, V7A 5H9
(604) 277-8150
Copies of communications to:
WILLIAM G. PUSCH
EUGENIE D. MANSFIELD
DAVIS WRIGHT TREMAINE, LLP
2600 CENTURY SQUARE
1501 FOURTH AVENUE
SEATTLE, WASHINGTON 98101-1688
(206) 622-3150
(Name, address, including zip code and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum
Title of Securities to Amount to be Maximum Offering Aggregate Offering Amount of
be Registered Registered (1) Price Per Share Price(2) Registration Fee
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<S> <C> <C> <C> <C>
Common stock underlying
options 4,000,000 (2) $16,545,441.42 $4,368.00
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</TABLE>
(1) This Registration Statement also includes an indeterminable number of
additional shares that may become issuable as a result of terminated, expired or
surrendered options to purchase the Company's common stock, or pursuant to the
anti-dilution provisions of the Company's 2000 Incentive Stock Option Plan (ISO
and Non-ISO) (the "Plan"). This Registration Statement also covers, pursuant to
Rule 416(a), any increases in the number of shares offered under the Plan to
prevent dilution resulting from stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, based on the
(a) actual exercise prices of options, ranging from $1.00 to $5.00, to acquire
3,495,860 shares of the Company's common stock which have been granted under
the Plan, and (b) upon the average of the high and low prices of the common
stock on September 14, 2000, as quoted on the Over-the-Counter Bulletin Board,
with respect to 504,140 shares of common stock as to which options have not
been granted as of the date of filing this Registration Statement.
<PAGE>
PART I *
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required by Part I of this
registration statement on Form S-8 (the "Registration Statement") will be sent
or given to Plan participants as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). Such documents and
the documents incorporated by reference herein pursuant to Item 3 of Part II
hereof, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I of Form S-8 is omitted from this Registration
Statement in accordance with Rule 428 under the Securities Act and the Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed with the Securities and Exchange
Commission (the "SEC") by MDU Communications International, Inc. (the "Company")
and are incorporated by reference into this Registration Statement:
1. The Company's Registration Statement on Form 10-SB filed with the SEC
on May 12, 1999, and all amendments thereof.
2. The Company's Annual Report on Form 10-KSB for the fiscal year ended
September 30, 1999.
3. The Company's Form SB-2 Registration Statement (No. 333-35820) filed
with the SEC on April 28, 2000, and Amendment No. 1 to the Form SB-2
filed with the SEC on June 30, 2000, as to the description of the
Company's securities.
4. All reports filed by the Company pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") since the end
of the fiscal year covered by the financial statements in the Annual
Report referred to in paragraph 2 above.
5. All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to 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 under this Registration Statement have been sold or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof
from the date of the 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
Section 145 of the Delaware General Corporation Law ("Section 145") permits
indemnification by a company of any of its directors, officers, or employees,
(i) in any action other than an action by or on behalf of such company, for any
reasonable expenses, judgment, fine or settlement payment incurred by the person
as a director, officer or employee of such company, and (ii) in an action by or
on behalf of a company, for reasonable expenses and settlement payment
incurred by the person as a director, officer or employee of such company, both
on condition of a determination by shareholders or a majority of the
disinterested board members of such company (or an independent counsel in a
written opinion if there are not enough disinterested directors to constitute a
quorum) that the person at issue acted in good faith and in a manner that
such person reasonably believed to be in or not opposed to the best interests
of such company, or that with respect to a criminal proceeding, the person
reasonably believed that such person's conduct was lawful.
Section 145 mandates indemnification by a company of directors, officers,
and employees for reasonable expenses if in the case of either (i) or (ii)
above, a director, officer or employee is successful in his or her defense
whether on the merits or otherwise, but prohibits indemnification in (ii) above
if a director, officer or employee is found to be liable or owes settlement
payment to a company.
The Company's Bylaws require mandatory indemnification of its directors and
officers to the fullest extent permitted by Delaware law, and permit
indemnification to its employees to the same extent. The Company's Certificate
of Incorporation restricts the personal liability of its directors to the
fullest extent permitted by Delaware law.
The Company has purchased an officers and directors liability insurance
policy which provides for insurance of directors and officers of the Company
against certain liabilities they may incur in their capacities as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
No. Exhibits
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4.1 Certificate of Incorporation(1)
4.2(a) Bylaws(1)
4.2(b) Amendment to Bylaws(2)
4.3 The 2000 Incentive Stock Option Plan (ISO & Non-ISO)(3)
5.1 Opinion of Davis Wright Tremaine LLP(3)
23.1 Consent of Deloitte & Touche LLP(3)
23.2 Consent of Counsel (included in Exhibit 5.1)(3)
24 Power of Attorney(3)
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(1) Incorporated by reference to Form 10-SB filed with the SEC on May 12, 1999.
(2) Incorporated by reference to Form 10-KSB filed with the SEC on December 27,
1999.
(3) Filed with this Registration Statement.
ITEM 9. UNDERTAKINGS
(a) The Company 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;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement; and
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<PAGE>
(iii) 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;
provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) shall
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in this 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.
(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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company'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 this 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the SEC 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 Company of expenses incurred or
paid by a director, officer or controlling persons of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling persons in connection with the securities
being registered, the Company 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, the Company certifies
that it has reasonable grounds to believe that it meets all 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
Richmond, British Columbia, Canada, on September 15, 2000.
MDU COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ Robert a. Biagioni
--------------------------------
Robert A. Biagioni
Chief Financial Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated,
on September 15, 2000.
SIGNATURE TITLE
Robert A. Biagioni Director and Chief Financial Officer (Principal
Accounting Officer)
J.E. (Ted) Boyle Director
Robert Dyck Director
Douglas G. Hooper Director
Sheldon B. Nelson Director, President and Chief Executive Officer
(Principal Executive Officer)
Robert A. Biagioni, by signing his name below, signs this document in his
capacity as a director and pursuant to powers of attorney duly executed by the
persons named above, filed as an exhibit to this document, on behalf of such
persons, all in the capacities and on the date stated. Such persons include a
majority of the directors of the Company.
/s/ Robert a. Biagioni
-----------------------------------
Robert A. Biagioni
Attorney-in-Fact
<PAGE>
INDEX TO EXHIBITS
No. Exhibits
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4.1 Certificate of Incorporation(1)
4.2(a) Bylaws(1)
4.2(b) Amendment to Bylaws(2)
4.3 The 2000 Incentive Stock Option Plan (ISO & Non-ISO)(3)
5.1 Opinion of Davis Wright Tremaine LLP(3)
23.1 Consent of Deloitte & Touche LLP(3)
23.2 Consent of Counsel (included in Exhibit 5.1)(3)
24 Power of Attorney(3)
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(1) Incorporated by reference to Form 10-SB filed with the SEC on May 12, 1999.
(2) Incorporated by reference to Form 10-KSB filed with the SEC on December 27,
1999.
(3) Filed with this Registration Statement.
