As filed with the Securities and Exchange Commission on January 16, 2001
Registration No. ________
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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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CYBER MARK INTERNATIONAL CORP.
(Exact Name of Registrant as Specified in Its Charter)
Delaware N/A
State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization Identification Number)
359 ENFORD ROAD, UNIT 1
RICHMOND HILL, ONTARIO, CANADA L4C 3G2
(Address of Principal Executive Offices)
1998 PERFORMANCE EQUITY PLAN
2000 PERFORMANCE EQUITY PLAN
AND OTHER EMPLOYEE OPTION PLANS
(Full Title of the Plan)
SAMUEL SINGAL, Chairman
Cyber Mark International Corp.
359 Enford Road, Unit 1
Richmond Hill, Ontario, Canada L4C 3G2
(905) 770-4602
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
with a copy to:
ANDREW D. HUDDERS, ESQ.
Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016-2097
Telephone: (212) 818-8800
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of Securities Amount to be offering price aggregate Amount of
to be registered registered(2) per share offering price registration fee
=========================================== =============== =============== ================== =================
<S> <C> <C> <C> <C>
Common stock issuable upon exercise of
options which may be granted under the
1998 Performance Equity Plan and the
2000 Performance Equity Plan .............. 4,530,000 $.13(1) $588,900 $147.23
Common stock issuable upon exercise of 200,000 $.625 $125,000 $ 31.25
awards pursuant to other employee option 280,000 $.50 $140,000 $ 35.00
plans(3)................................... 1,000,000 $.25 $250,000 $ 62.50
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TOTAL $1,103,900 $275.98
</TABLE>
(1) Based on the last sale price of a share of our common stock as reported
by The OTC Bulletin Board on January 12, 2001 in accordance with Rules
457(c) and 457(h) promulgated under the Securities Act of 1933, as
amended ("Securities Act").
(2) Pursuant to Rule 416, there are also being registered additional shares
of common stock as may become issuable pursuant to the anti-dilution
provisions of such plan.
(3) Represents the exercise prices payable for the shares issuable upon
exercise of outstanding options granted under other employee option
plans in accordance with Rule 457(h) promulgated under the Securities
Act.
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In accordance with the provisions of Rule 462 promulgated under the
Securities Act, this registration statement will become effective upon filing
with the Securities and Exchange Commission.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information. *
* Information required by Part I to be contained in the Section
10(a) prospectus 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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by us with the SEC are
incorporated by reference in this registration statement:
o our Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999;
o our Quarterly Report on Form 10-QSB for the period ended
March 31, 2000;
o our Quarterly Report on Form 10-QSB for the period ended
June 30, 2000;
o our Quarterly Report on Form 10-QSB for the period ended
September 30, 2000;
o our Proxy Statement dated June 26, 2000; and
o the description of our common stock, par value $.0001 per
share, contained in our registration statement on Form 10-SB
File (No. 0-26919) filed with the SEC pursuant to Section
12(g) of the Exchange Act, including any subsequent
amendment(s) or report(s) filed for the purpose of updating
such description.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all the securities offered have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part of
this registration statement from the respective date of filing. Any statement
contained in a document incorporated by reference in this registration statement
will be modified or superseded for all purposes to the extent that a statement
contained in this registration statement or in any other subsequently filed
document which is incorporated by reference modifies or replaces such statement.
Item 4. Description of Securities.
Our common stock is registered under Section 12(g) of the Exchange
Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation to 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
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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 that such person's conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement,
conviction, or upon plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that such person did not act in good faith and in a
manner that 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.
In the case of an action by or in the right of the corporation,
Section 145 empowers a corporation to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending, or completed
action in any of the capacities set forth above 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 that such person reasonably believed to be in and not
opposed to the best interests of the corporation, except that indemnification is
not permitted in respect of any claim, issue, or matter as to which such person
is 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
determines 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 that the Court of Chancery or such other
court deems proper.
Section 145 further provides:
o that a Delaware corporation is required to indemnify a
director, officer, employee, or agent against expenses
(including attorneys' fees) actually and reasonably incurred
by such person in connection with any action, suit, or
proceeding or in defense of any claim, issue, or matter
therein as to which such person has been successful on the
merits or otherwise;
o that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the
indemnified party may be entitled;
o that indemnification provided for by Section 145 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 such person's heirs, executors, and administrators; and
o that a Delaware corporation may purchase and maintain
insurance on behalf of its directors or officers against any
such liability asserted against them as directors or
officers or arising out of their status as directors or
officers whether or not the corporation would have the power
to indemnify them against liability under Section 145.
A Delaware corporation may provide indemnification only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct. Such determination is to be made (i) by the
board of directors by a majority vote of a quorum consisting of directors who
were not party to such action, suit, or proceeding, or (ii) if such a quorum is
not obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
Article VI of our Bylaws provide for indemnification of our directors
and officers to the fullest extent permitted by law, as now in effect or later
amended. Article VI of our Bylaws provides that expenses incurred by a director
or officer in defending a civil or criminal action, suit, or proceeding may be
paid by us in advance of a final disposition upon receipt of an undertaking by
or on behalf of the director or officer to repay such amount if it is ultimately
determined that the director or officer was not entitled to be indemnified by
us.
Paragraph 15 of our Certificate of Incorporation eliminates the
personal liability of our directors to the fullest extent permitted by the
provisions of Section 102 of the Delaware General Corporation Law, as the same
may be amended and supplemented.
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Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Description
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4.1 1998 Performance Equity Plan (incorporated by reference to
Registrant's Registration Statement on Form 10-SB filed with the
SEC on August 3, 1999 (File No. 0-26919))
4.2 Form of 2000 Performance Equity Plan
4.3 Form of Stock Option Agreement for the purchase of 40,000 shares
of common stock between the Registrant and James Runge
4.4 Form of Stock Option Agreement, as amended, for the purchase of
40,000 shares of common stock between the Registrant and Allan
Fryman
4.5 Stock Option Agreement for the purchase of 600,000 shares of
common stock between Registrant and Israel Ellis
4.6 Form of Stock Option Agreement for the purchase of 800,000
shares of common stock between Registrant and Joseph Byck
5.1 Opinion of Graubard Mollen & Miller
23.1 Consent of Citrin Cooperman & Company, LLP, independent auditors
for the Company
23.2 Consent of Graubard Mollen & Miller (Included in Exhibit 5.1)
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.
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic 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 that are incorporated by reference in the registration statement.
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(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.
(c) 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 registration of 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 of 1933, 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 Richmond Hill, Ontario, on this 11th day of January , 2001.
CYBER MARK INTERNATIONAL CORP.
By: /s/ Samuel Singal
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Samuel Singal, Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following person in
the capacity and on the date indicated.
Signature Title Date
---------- ----- ----
/s/ Samuel Singal Chairman of the Board, President, Chief
-------------- Operating Officer and Director January 11, 2001
Samuel Singal (Principal Accounting Officer)
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EXHIBIT INDEX
Exhibit No. Description
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4.1 1998 Performance Equity Plan (incorporated by reference to
Registrant's Registration Statement on Form 10-SB filed with the
SEC on August 3, 1999 (File No. 0-26919))
4.2 Form of 2000 Performance Equity Plan
4.3 Form of Stock Option Agreement for the purchase of 40,000 shares
of common stock between the Registrant and James Runge
4.4 Form of Stock Option Agreement, as amended, for the purchase of
40,000 shares of common stock between the Registrant and Allan
Fryman
4.5 Stock Option Agreement for the purchase of 600,000 shares of
common stock between Registrant and Israel Ellis
4.6 Form of Stock Option Agreement for the purchase of 800,000
shares of common stock between Registrant and Joseph Byck
5.1 Opinion of Graubard Mollen & Miller
23.1 Consent of Citrin Cooperman & Company, LLP, independent auditors
for the Company
23.2 Consent of Graubard Mollen & Miller (Included in Exhibit 5.1)
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