As filed with the Securities and Exchange Commission on November 16, 2001
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
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(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification
No.)
1281 WEST GEORGIA STREET, STE. 900
VANCOUVER, BRITISH COLUMBIA, CANADA V6E 3J7
(604) 904-4422
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(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:
SANDRA WARREN ADAM S. GOTTBETTER, ESQ.
CYPOST CORPORATION KAPLAN GOTTBETTER & LEVENSON, LLP
1281 WEST GEORGIA STREET - STE. 900 630 THIRD AVENUE
VANCOUVER, BRITISH COLUMBIA NEW YORK, NEW YORK 10017
CANADA V6E 3J7 (212) 983-6900
(604) 904-4422
(Name, Address and Telephone Number including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM PROPOSED
AMOUNT TO OFFERING MAXIMUM AMOUNT OF
TITLE OF SECURITIES BE PRICE PER AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED SHARE OFFERING PRICE FEE
----------------------- ------------ ---------- --------------- ------------
Common Stock, par
value $.001 per share 1,000,000 $ .085 $ 85,000 $ 26.00 (1)
TOTAL: 1,000,000 $ .085 $ 85,000 $ 26.00 (1)
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 (c) on the basis of the average of the high and low
prices of the common stock of the Registrant as traded in the over-the
counter market and reported in the Electronic Bulletin Board of the
National Association of Securities Dealers on November 12, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Pursuant to the Note to Part I of the Form S-8, the information required by
Part I is not filed with the Securities and Exchange Commission.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The Company will provide without charge to each person to whom a copy of a
Section 10(a) Prospectus hereunder is delivered, upon the oral or written
request of such person, a copy of any document incorporated in this Registration
Statement by reference. Requests for such information should be directed to
CyPost Corporation, 1281 West George Street, Suite 900, Vancouver, British
Columbia, Canada V6E 3J7, (604) 904-4422.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this registration
statement.
a) Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2000 filed pursuant to Section 13(c) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
b) All other reports filed by registrant pursuant to Section 13(c) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Form 10-KSB referred to in (a) above.
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, as amended, 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, ("KGL") whose opinion is attached hereto as Exhibit 5. Adam S.
Gottbetter, Esq., a partner in KGL, will be issued shares of common stock of
the registrant in payment for legal services rendered. At the present time,
neither KGL or Mr. Gottbetter owns any shares of registrant's common stock.
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 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.
(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)."
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
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4. Modified Retainer Agreement dated November 15, 2001,
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 Good Swartz Brown & Berns LLP, 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
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 conformation 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 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this 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 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 herein, and the
offering of such securities at that time shall be deemed to be in the initial
bonafide offering thereof.
3. 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 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.
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 Vancouver, British Columbia on the 16th day of November, 2001.
CYPOST CORPORATION
By /s/ Sandra Warren
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Sandra Warren
President
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
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/s/ Sandra Warren Principal Executive Officer, November 16, 2001
-------------------- Principal Financial Officer,
Sandra Warren and Principal Accounting Officer
MAJORITY OF THE BOARD OF DIRECTORS:
/s/ Sandra Warren Director November 16, 2001
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Sandra Warren
/s/ Robert Sendoh Director November 16, 2001
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Robert Sendoh
/s/ J. Thomas Johnston Director November 16 2001
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J. Thomas Johnston