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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MERLIN SOFTWARE TECHNOLOGIES INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
Nevada 88-0398103
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Suite 420 - 6450 Roberts Street, Burnaby, British Columbia, Canada V5G 4E1
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(Address of Principal Executive Offices) (Zip Code)
MERLIN SOFTWARE TECHNOLOGIES INTERNATIONAL, INC. 2000 STOCK OPTION PLAN
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(Full title of the plan)
ROBERT HELLER
MERLIN SOFTWARE TECHNOLOGIES INTERNATIONAL, INC.
SUITE 420 - 6450 ROBERTS STREET
BURNABY, BRITISH COLUMBIA, CANADA V5G 4E1
(Name and address of agent for service)
(604) 320-7227
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(Telephone number, including area code, of agent for service)
Copies of all communications, including all communications sent to the agent for
service, should be sent to:
VIRGIL Z. HLUS
CLARK, WILSON, BARRISTERS AND SOLICITORS
#800 - 885 WEST GEORGIA STREET
VANCOUVER, BRITISH COLUMBIA, CANADA, V6C 3H1
TELEPHONE: (604) 687-5700
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<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Securities to Amount to be Maximum Offering Maximum Aggregate Amount of
be Registered. . . . . Registered Price Per Share Offering Price Registration Fee
---------------- ----------------- ------------------- ------------------
Common Stock, with . . A maximum of
par value $0.001 . . . 3,000,000 shares 1.3125(1) $ 3,937,500(1) $ 1,039.50(1)
---------------------- ---------------- ----------------- ------------------- ------------------
</TABLE>
(1) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of calculating the
registration fee, based on the average of the bid and ask price ($1.375 bid;
$1.250 ask) of the common stock as reported on the National Association of
Securities Dealers Inc.'s Over the Counter Bulletin Board on June 1, 2000.
(2) The 2000 Stock Option Plan (the "2000 Plan") authorizes the issuance of
a maximum of 3,000,000 common shares all of which are being registered
hereunder. There are also registered, pursuant to Rule 415, such additional
indeterminate number of shares as may be issued as a result of the anti-dilution
provision of the 2000 Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
In accordance with the rules and regulations of the Securities and Exchange
Commission, the documents containing the information called for in Part I of
Form S-8 will be sent or given to individuals who participate in our 2000 Stock
Option Plan, effective May 1, 2000 (the "2000 Plan") and who consent to and
execute our form of stock option agreement (the "Agreement"), copies of which
are filed or included with this Form S-8 (Exhibits 4.1 and 4.2 respectively).
This Registration Statement relates to the offering of a maximum of 3,000,000
common shares (the "Shares") in the capital stock of the Company pursuant to the
2000 Plan.
ITEM 2. COMPANY INFORMATION AND EMPLOYEE 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 Section 10(a) Prospectus) and other documents
required to be delivered to the Employees and/or Consultants pursuant to Rule
428(b) are available without charge by contacting:
Merlin Software Technologies International, Inc.
Suite 420 - 6450 Roberts Street
Burnaby, British Columbia, Canada V5G 4E1
Attention: The President
(Telephone: (604) 320-7227)
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Merlin Software Technologies International,
Inc. (the "Company") are incorporated herein by reference:
1. The description of the Company's shares contained in the Registration
Statement on Form 10-SB (SEC File Number 000-27189), filed with the Securities
and Exchange Commission on August 31, 1999, including all amendments and reports
for the purpose of updating such description;
2. The Company's Quarterly Report on Form 10-QSB filed on November 22, 1999,
for the quarter ending September 30, 1999, containing audited financial
statements as of September 30, 1999 and for the three month and nine month
periods ended September 30, 1999;
3. The Company's Reports on Form 8-K and Form 8-K/A filed on:
(a) February 1, 2000;
(b) March 28, 2000;
(c) March 30, 2000;
(d) April 5, 2000;
(e) April 13, 2000; and
4. The Company's Annual Report on Form 10-KSB filed on April 14, 2000,
containing audited financial statements for the fiscal year ended December 31,
1999 and December 31, 1998.
In addition to the foregoing, all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment indicating that all
of the securities offered hereunder have been sold or deregistering all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents. Any statement contained in a document incorporated by
reference in this Registration Statement 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 document that is also
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.
You may read and copy any reports, statements of other information were filed at
the SEC's Public Reference Rooms at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
Public Reference Rooms. The Company's filings are also available to the public
from commercial document retrieval services, such as Primark, whose telephone
number is 1-800-777-3272.
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 NRS 78.7502 the Nevada Revised Statutes, Title 7 (Business Associations,
Securities, Commodities), Chapter 78 (Private Corporations) provides as follows
with respect to the indemnification of Directors and Officers:
<PAGE>
1. 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,
except an action by or in the right of the corporation, by reason of the fact
that he 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 him in
connection with the action, suit or proceeding if he acted in good faith and in
a manner which he 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 his 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, does not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
2. 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 or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he 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 amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation. Indemnification may not be made for
any claim, issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, the corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
Pursuant to NRS 78.751:
1. Any discretionary indemnification under NRS 78.7502, unless ordered by a
court or advanced pursuant to subsection 2, may be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances. The
determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum consisting
of directors who were not parties to the action, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding so orders, by independent legal
counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the
action, suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
2. The articles of incorporation, the bylaws or an agreement made by the
corporation may provide that the expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or
<PAGE>
proceeding, upon receipt of an undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this subsection do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
3. The indemnification and advancement of expenses authorized in or ordered
by a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation or any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to NRS 78.7502 or for the
advancement of expenses made pursuant to subsection 2, may not be made to or on
behalf of any director or officer if a final adjudication establishes that his
acts or omissions involved intentional misconduct, fraud or a knowing violation
of the law and was material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
The Company's By-Laws
Article VII of the by-laws of the Company contains provisions to limit the
liability of directors and officers as follows:
No Officer or Director shall be personally liable for any obligations of the
Company or for any duties or obligations arising out of any acts or conduct of
said Officer or Director performed for or on behalf of the Company. The Company
shall and does hereby indemnify and hold harmless each person and their heirs
and administrators who shall serve at any time hereafter as a Director of
Officer of the Company from and against any and all said claims, judgments and
liabilities to which such persons shall become subject by reason of their having
heretofore or hereafter been a Director or Officer of the Company, or by reason
of any action alleged to have heretofore or hereafter taken or omitted to have
been taken by him [or her] as such Director or Officer, and shall reimburse each
such person for all legal and other expenses reasonably incurred by him [or her]
in connection with any such claim or liability, including power to defend such
persons from all suits or claims as provided for under the provisions of the
Nevada Revised Statutes; provided, however, that no such persons shall be
indemnified against, or be reimbursed for, any expense incurred in connection
with any claim or liability arising out of his (or her) own negligence or wilful
misconduct. The rights accruing to any person under the foregoing provisions of
this section shall not exclude any other right to which he or she may lawfully
be entitled, nor shall anything herein contained restrict the right of the
Company to indemnify or reimburse such person in any proper case, even though
not specifically herein provided for. The Company, its Directors, Officers,
employees and agents shall be fully protected in taking any action or making
any payment, or in refusing to do so in reliance upon the advice of counsel.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Merlin Software Technologies International, Inc. 2000 Stock Option
Plan
4.2 Form of Stock Option Agreement
<PAGE>
5 Opinion of Clark, Wilson
23.1 Consent of Clark, Wilson (included in Exhibit 5)
23.2 Consent of Independent Auditor (BDO Dunwoody LLP)
24 Power of Attorney (included in signature page)
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 of 1933, as amended (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 hereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do 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 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 the 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 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 herein, 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 persons controlling the Company
pursuant to the foregoing provisions, or otherwise, the Company has 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. 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 person of the 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, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling
<PAGE>
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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Burnaby, in the Province of British Columbia, on 4th
day of May, 2000.
Merlin Software Technologies International, Inc.
/s/ Robert Heller
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Robert Heller, President and Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears
below constitutes and appoints Robert Heller his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
(Signature) /s/ Robert Heller
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Robert Heller
(Title) President and Chief Executive Officer (principal executive
officer)/Director
(Date) May 4, 2000
(Signature) /s/ Gary Heller
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Gary Heller
(Title) Chief Information Officer, and Secretary/Director
(Date) May 4, 2000
(Signature) /s/ Shelley Montgomery
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Shelley Montgomery
(Title) Vice President - Sales/Director
(Date) May 4, 2000
(Signature) /s/ Martin Holt
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Martin Holt
(Title) Director
(Date) May 4, 2000
<PAGE>
(Signature) /s/ Trevor McConnell
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Trevor McConnell
(Title) Chief Financial Officer and Treasurer
(Date) May 4, 2000