As filed with the Securities and Exchange Commission on March 8, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CYPOST CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 98-0178674
-------- ----------
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
101-260 West Esplanade
North Vancouver, British Columbia, Canada V7M 3G7
(604) 904-4422
(Address, Including Zip Code and Telephone Number,
of Principal Executive Offices)
Modified Retainer Agreement with Kaplan Gottbetter & Levenson, LLP
(Full Title of Plan)
Copy to:
National Corporate Research Adam S. Gottbetter, Esq.
9 East Loockerman Street Kaplan Gottbetter & Levenson, LLP
Dover, Delaware 19901 630 Third Avenue
(302) 734-1450 New York, New York 10017
Name, Address and Telephone Number (212) 983-6900
Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities Amount To Be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered Offering Price Per Aggregate Registration Fee
Share Offering Price
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 26,500 $3.50 $92,750 $24.50
value $.001 per
share
26,500 $92,750 $24.50
TOTAL:
- ----------------------------------------------------------------------------------------------
</TABLE>
1) Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457.
<PAGE>
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by the Registrant with the
Securities and Exchange Commission, are hereby incorporated by reference into
this Prospectus:
a) The Registrant's Registration Statement on Form 10-SB filed by the
Registrant with the Commission on July 19, 1999 and all the
amendments hereto:
b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year
covered by the Form 10-SB. and
c) The description of the common stock, $.001 par value per share (the
"Common Stock") of the Registrant as contained in the Registrant's
Registration Statement on Form 10-SB, file No. 0-26751.
All documents filed by the Registrant pursuant to Section 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 hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated in this Registration Statement by reference and to be
a part hereof from the date of filing of such documents. Any statement contained
in this Registration Statement, in a supplement to this Registration Statement
or in a document incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any subsequently filed supplement to
this Registration Statement or in any document that is subsequently incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable. See Item 3(c) above
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
The validity of the shares of common stock registered in this Registration
Statement has been passed upon for the Registrant by Kaplan Gottbetter &
Levenson, LLP, whose opinion is attached hereto as Exhibit 5. Adam S.
Gottbetter, a partner of Kaplan Gottbetter & Levenson, LLP will be issued shares
of common stock of the Registrant in payment for legal services
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<PAGE>
rendered, which have a value of approximately $92,750.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation, as amended, provides
that each person who was or is made a party to, or is involved in, any action,
suit, or proceeding by reason of the fact that such person is or was a director
or officer of the Registrant will be indemnified and held harmless by the
Registrant to the full extent authorized by the Delaware General Corporation
Law.
Section 145 of the Delaware General Corporation Law provides as follows:
"INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS; INSURANCE
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
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, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in
good faith and in a manner such person 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 such
person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which such person 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 reasonable cause to believe that such person's conduct was
unlawful.
"(b) A corporation may indemnify any person who was or is party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor 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, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of
such action or suit if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best
interests of the
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<PAGE>
corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
"(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith.
"(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the present or former director, officer, employee or agent is proper in
the circumstances because such person has met the applicable standard of
conduct set forth in subsections (a) and (b). Such determination shall be
made, with respect to a person who is a director or officer at the time of
such determination, (1) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a
quorum, or (2) by a committee of such directors designated by majority
vote of such directors, even though less than a quorum, or (3) if there
are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (4) by the stockholders.
"(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such person is
not entitled to be indemnified by the corporation as authorized in this
section. Such expenses (including attorneys' fees) incurred by former
directors and officers or other employees and agents may be so paid upon
such terms and conditions, if any, as the corporation deems appropriate.
"(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any by
law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to
action in another capacity while holding such office.
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"(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who 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,
partnership, joint venture, trust or other enterprise against any
liability asserted against such person and incurred by such person in any
such capacity, or arising out of such person's status as such, whether or
not the corporation would have the power to indemnify such person against
such liability under this section.
"(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as
such person would have with respect to such constituent corporation if its
separate existence had continued.
"(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in this section.
"(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of a person.
"(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court
of Chancery may summarily determine a corporation's obligation to advance
expenses (including attorneys' fees)."
5
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Registrant's Certificate of Incorporation eliminates the personal
liability of the directors to the fullest extent permitted by the provisions of
paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of
the State of Delaware, as the same may be amended and supplemented.
The Registrant may purchase and maintain, but does not currently maintain,
insurance on behalf of its officers and directors against liability asserted
against any of them and incurred by them in such capacity, or arising out of
their status as such.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS
Exhibits No. Description
------------ -----------
4. Modified Retainer Agreement dated March 2, 2000 between
Registrant and Kaplan Gottbetter & Levenson, LLP.
5. Opinion of Counsel, Kaplan Gottbetter & Levenson, LLP.
23.1 Consent of Counsel (included in Exhibit 5 hereto)
23.2 Consent of Thomas Monahan, Independent Auditors
Item 9. UNDERTAKINGS
1. The Registrant hereby undertakes:
(a) 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 formation set forth
in the registration statement;
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<PAGE>
(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;
(b) 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 the time shall be deemed to be the initial
bonafide offering thereof.
(c) 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.
2. The 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 Exchange Act
(and, where applicable, each filing of any employee benefits 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 herein, and the offering of such
securities at that time shall be deemed to be in the initial bonafide offering
thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing 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 North Vancouver, British Columbia on the 3rd day of March, 2000.
CYPOST CORPORATION
By /s/ Robert Sendoh
---------------------------
Robert Sendoh, President, Treasurer,
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicates and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Robert Sendoh President, Treasurer, March 3, 2000
- ------------------------- Chief Executive Officer
Robert Sendoh And Director
/s/ Carl Whitehead Vice President, Secretary March 3, 2000
- ------------------------- and Director
Carl Whitehead
/s/ James T. Johnson Director March 3, 2000
- -------------------------
James T. Johnson
8
EXHIBIT 4
MODIFIED RETAINER AGREEMENT
KAPLAN GOTTBETTER & LEVENSON, LLP
ATTORNEY AT LAW
630 THIRD AVENUE NEW JERSEY OFFICE
NEW YORK, NEW YORK 10017-6705 --------
2237 LEMOINE AVENUE
TEL: (212) 983-6900 FORT LEE, NJ 07024
FAX: (212) 983-9210 TEL: (201) 947-4005
E-MAIL: [email protected] FAX: (201) 947-5812
March 2, 2000
Robert Sendoh, President
CyPost Corporation
260 West Esplanade, Suite 101
North Vancouver, BC V7M 3G7
Canada
Re: Modification to Retainer Agreement
Dear Mr. Sendoh:
Please accept this letter as confirmation that CyPost Corporation (the
"Company"), has agreed to modify the retainer agreement dated September 5, 1997
(the "Retainer") between the Company and Kaplan Gottbetter & Levenson, LLP.
("KGL"), effective February 11, 2000. The modification, which we understand was
approved by the Company's Board of Directors at their February 11, 2000 meeting,
is for the Company to pay its outstanding bill for legal services with shares of
the Company's common stock, $.001 par value. We understand that the outstanding
bill will be paid as follows:
1) 26,500 shares valued at approximately $92,750 at the close of
business on February 29, 2000. The board of directors has approved
the filing of a registration on Form S-8 for these 26,500 shares.
The legal services, for which these shares are being registered and
issued to Adam S. Gottbetter, a partner of KGL, did not include any
services in connection with the offer or sale of securities in a
capital raising transaction, and did not directly or indirectly
promote or maintain a market for the Company's securities.
Please note that this letter may be filed as an exhibit to the Form S-8.
In order to effectuate the modification of the Retainer, please sign this letter
and return it to my office. If you have any questions, please call me.
<PAGE>
Mr. Robert Sendoh
March 2, 2000
Page 2
Sincerely,
KAPLAN GOTTBETTER & LEVENSON, LLP ACCEPTED AND AGREED:
/s/ Adam S. Gottbetter CYPOST CORPORATION
Adam S. Gottbetter
By: /s/ Robert Sendoh
---------------------
Robert Sendoh
---------------------
Name
Chairman, CEO
---------------------
Title
EXHIBIT 5
OPINION AND CONSENT OF COUNSEL
KAPLAN GOTTBETTER & LEVENSON, LLP
ATTORNEY AT LAW
630 THIRD AVENUE NEW JERSEY OFFICE
NEW YORK, NEW YORK 10017-6705 --------
2237 LEMOINE AVENUE
TEL: (212) 983-6900 FORT LEE, NJ 07024
FAX: (212) 983-9210 TEL: (201) 947-4005
E-MAIL: [email protected] FAX: (201) 947-5812
March 7, 2000
CyPost Corporation
101-260 West Esplanade
North Vancouver, BC V7M 3G7
Canada
Gentlemen:
We have examined the Registration Statement on Form S-8 of CyPost
Corporation, a Delaware corporation (the "Registrant"), to be filed with the
Securities and Exchange Commission (the "Registration Statement"), relating to
the registration under the Securities Act of 1933, as amended, of 26,500 shares
of the Company's common stock, $.001 par value per share (the "Common Stock"),
under the Modified Retainer Agreement with Kaplan Gottbetter & Levenson, LLP
(the "Retainer"). As your counsel in connection with this transaction, we have
examined the proceedings taken and are familiar with the proceedings proposed to
be taken by you in connection with the issuance and sale of the Common Stock
pursuant to the Retainer.
We are of the opinion that the shares of Common Stock, when issued and
sold in the manner described in the Retainer, will be legally and validly
issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us in the Registration
Statement and any amendments thereto.
Very truly yours,
KAPLAN GOTTBETTER & LEVENSON, LLP
/s/ KAPLAN GOTTBETTER & LEVENSON, LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITOR
I hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of CyPost Corporation of my report dated May 12,1999,
relating to the balance sheet of CyPost Corporation as of December 31, 1998 and
for the related statements of operations, cash flows and shareholders' equity
for the year ended December 31, 1998 and for the period from inception,
September 5, 1997, to December 31, 1998. which appear in the Form 10-SB of
CyPost Corporation.
/s/ Thomas P. Monahan
----------------------
THOMAS P. MONAHAN
February 24, 2000
Paterson, New Jersey
