AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON DECEMBER 29, 2003
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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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MURRAY UNITED DEVELOPMENT CORP.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 22-2856171
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
P.O. Box 224
Landing, New Jersey 07850
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(Address of principal executive offices)
Consulting Agreement
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(Fill title of the plan)
Dwight Foster, Chief Executive Officer
Murray United Development Corp.
P.O. Box 224
Landing, New Jersey 07850
(908) 979-3025
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(Name, address and telephone number of agent for service)
Copy to:
John R. Calcagni, Esq.
Haley, Weinblatt & Calcagni, LLP
300 Rabro Drive
Hauppauge, New York 11788
Telephone: (631) 582-5151
Fax: (631) 234-7108
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Calculation of Registration Fee
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Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
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Common Stock,
par value $.0001 200,000
per share shares $ 0.01 (1)(2) $ 2,000 (1)(2) $ 100 (1)(2)
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(1) Calculated on the basis of the average of the high and low sale prices of
the Registrant's Common Stock as reported on December 23, 2003 on the NASD
Over the Counter Bulletin Board, which date is within 5 business days prior
to the date of the filing of this Registration Statement
(2) Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(h).
APPROXIMATE DATE OF PROPOSED COMMENCEMENT OF SALES ISSUED PURSUANT TO THE
PLAN: As soon as practicable after the Registration Statement shall become effective
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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 of 1933 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 filed by Murray United Development Corp.
("Company") with the Securities and Exchange Commission ("Commission") under the
Securities Act of 1933, as amended ("Securities Act") or the Securities Exchange
Act of 1934, as amended ("Exchange Act"), are incorporated herein by reference:
(a) The Company's latest annual report on Form 10-KSB for the fiscal
year ended July 31, 2003, filed with the Commission on October
29, 2003;
(b) The Company's report on Form 8-K filed with the Commission on
October 16, 2003; and the Company's quarterly report on Form
10-QSB for the quarterly period ended October 31, 2003 filed with
the Commission on December 19, 2003;
(c) Not Applicable.
All the documents filed by the Registrant after the date of this
Registration Statement pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the filing of the post-effective amendment that indicates
that all Common Stock offered hereby has been sold or which deregisters such
Common Stock then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and shall be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be 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 other subsequently
filed document which also is or is deemed to be incorporated by reference in
this Registration Statement modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or so superseded, to constitute a part of this Registration Statement.
Upon the written or oral request of any person to whom a copy of this
Registration Statement has been delivered, the Registrant will provide without
charge to such person a copy of any and all documents (excluding exhibits
thereto unless such exhibits are specifically incorporated by reference into
such documents) that have been incorporated by reference into this Registration
Statement but not delivered herewith. All such documents incorporated by
reference are part of the Section 10(a) Prospectus forming a part of this
Registration Statement. Requests for such documents should be addressed to
Murray United Development Corp, P.O. Box 224, Landing, New Jersey 07850
Attention: Chief Executive Officer.
ITEM 4. DESCRIPTION OF SECURITIES
Common Stock
We are authorized to issue 200,000,000 shares of Common Stock, par
value $.0001 per share. As of December 15, 2003 there were 79,953,434 shares
issued and outstanding. Holders of our Common
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Stock are entitled to one vote for each share held. There are no preemptive,
subscription, conversion or redemption rights pertaining to our
Common Stock. Holders of our Common Stock are entitled to share ratably in any
of our assets that are available upon liquidation.
Holders of our Common Stock are entitled to receive dividends when and
as declared by the Board of Directors out of funds legally available to pay such
dividends. To date, we have not paid any dividends, and our Board of Directors
has no present intention of declaring dividends in the foreseeable future.
Whether dividends are declared in the future will depend upon our profitability,
our financial condition and other factors that the Board deems relevant.
Of the 79,953,434 currently outstanding shares of our Common Stock,
21,026,544 may be deemed to be "restricted securities". The possible or actual
sale of these restricted securities in accordance with Rule 144 adopted under
the Securities Act of 1933 may have a depressive effect on the market price for
our Common Stock that is prevailing at the time(s) if such sales.
Class B Warrants
In our initial public offering made on February 26, 1988, we sold
15,000,000 units, each unit consisting of one share of Common Stock, $.0001 par
value, one Class A Warrant and one Class B Warrant. The Class A Warrants were
exercisable immediately and expired on October 25, 1991. The Class B Warrants
were exercisable immediately and were originally scheduled to expire on February
26, 1991. However, our Board has authorized the extension of the Class B Warrant
exercise period, including through March 11, 2005. As of the date of this
Prospectus, 14,898,000 Class B Warrants are outstanding at an exercise price of
$.15 per share.
We may redeem the Class B Warrants at any time, at a price of $.0001
per Class B Warrant, by giving warrant holders thirty days' prior written notice
of our intention to do so. Holders of Class B Warrants may exercise their
warrants prior to the expiration of such thirty day notice period. A holder of
the Class B Warrants will not have any rights as a stockholder until he or she
actually exercises such Class B Warrant. The number of shares that may be
purchased upon exercise of the Class B Warrants and the exercise price of such
Warrants are subject to proportionate adjustment in the event of stock splits or
stock dividends involving our Common Stock.
Underwriter's Class B Warrants
In accordance with the underwriting agreement between us and the
underwriter of our initial public offering, the underwriter purchased, for $15,
warrants (the "Underwriter's Unit Warrants") to purchase, at $.075 per unit,
1,500,000 units, each unit consisting of one share of Common Stock, one Class A
Common Stock Purchase Warrant to purchase one share of Common Stock at $.15 per
share, and one Class B Common Stock Purchase Warrant to purchase one share of
Common Stock at $.225 per share. Each of the Class A Common Stock Purchase
Warrants expired by its own terms on September 26, 1991. As of the date of this
Prospectus 500,000 Class B Common Stock Purchase Warrants, exercisable at $.225
per share, are still outstanding.
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Stock Options
On April 11, 2002, the Board of Directors approved the issuance of a
non-qualified stock option (the "Option") for 6 million shares of the Company's
Common Stock to Dwight Foster, the Chief Executive Officer and a Director of the
Company. In issuing such Option, the Board noted that Mr. Foster had been
serving as the Company's President and Chief Executive Officer since December
1998 and as a Director since March 2000, in each case without any compensation.
The Option granted to Mr. Foster is exercisable, cumulatively, at an
exercise price of $0.02 per share in accordance with the following schedule of
vesting: 1 million shares on October 11, 2002; 1 million shares on April 11,
2003; 1 million shares on October 11, 2003; 1 million shares on April 11, 2004;
1 million shares on October 11, 2004; and 1 million shares on April 11, 2005.
From and after April 11, 2005 the Option may be exercised as to all optioned
shares for which it had not been previously exercised.
The Option expires 10 years after the date of grant. If Mr. Foster's
employment with the Company is terminated for any reason other than death, Mr.
Foster may exercise only that portion of the Option that was exercisable on the
date such employment terminated. The Option issued to Mr. Foster was issued
without registration pursuant to Section 4(2) of the Securities Act of 1933. The
closing price of the Company's Common Stock on the date the Option was granted
to Mr. Foster was $.041 per share.
Business Combination Provisions
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law. Under Section 203, certain "business combinations"
between a Delaware corporation whose stock generally is publicly traded or held
of record by more than 2,000 stockholders and an "interested stockholder" are
prohibited for a three-year period following the date that such stockholder
became an interested stockholder, unless certain conditions are met. The
three-year prohibition does not apply to certain business combinations proposed
by an interested stockholder following the announcement or notification of
certain extraordinary transactions involving the corporation and a person who
had not been an interested stockholder during the previous three years or who
became an interested stockholder with the approval of the majority of the
corporation's directors. The term "business combination" is defined generally to
include mergers or consolidations between a Delaware corporation and an
"interested stockholder," transactions with an "interested stockholder"
involving the assets or stock of the corporation or its majority-owned
subsidiaries, and transactions which increase an interested stockholder's
percentage ownership of stock. The term "interested stockholder" is defined
generally as a stockholder who, together with affiliates and associates, owns
(or, within three years prior, did own) 15% or more of a Delaware corporation's
voting stock. Section 203 could prohibit or delay a merger, takeover or other
change in control of the Company and therefore could discourage attempts to
acquire us.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
We have the authority under the Delaware General Corporation Law (DGCL)
to indemnify our directors and officers to the extent provided for in the DGCL.
We may also purchase and maintain insurance on behalf of a person who is or was
one of our directors, officers, employees or agents against liability asserted
against or incurred by such person while acting in such capacity or arising from
his or her status as a director, officer, employee or agent of the Company.
Section 145(a) of the General Corporation Law provides, in general,
that a corporation shall have power 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 he or she is or was a director or officer of the
corporation. Such indemnity may be against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding, if the person to be
indemnified acted in good faith and in a manner reasonably believed to be in, or
not opposed to, the best interests of the corporation and, with respect to any
criminal action or proceeding, he or she must not have had reasonable cause to
believe his or her conduct was unlawful.
Section 145(b) of the General Corporation Law provides, in general,
that a corporation shall have power 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 or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a director
or officer of the corporation (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if he or she acted in good faith and in a manner such
person reasonably believed to be in, or not opposed to, the best interest of the
corporation.
Section 145(g) of the General Corporation Law provides in general that
a corporation shall have the power to purchase and maintain insurance on behalf
of any person who is or was a director or officer of the corporation against any
liability asserted against him or her or incurred by such person in any
capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such liability
under the provisions of the law.
Section 102(b) of the General Corporation Law permits a Delaware
corporation, by so providing in its Certificate of Incorporation, to eliminate
or limit the personal liability of a director to the corporation for damages
arising out of certain alleged breaches of the director's duties to the
corporation. Our Certificate of Incorporation eliminates personal liability of
our directors to the fullest extent permitted by Section 102(b)(7) of the
Delaware General Corporation Law.
The General Corporation Law, however, provides that no such limitation
of liability may affect a director's liability with respect to any of the
following: (i) for breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) for unlawful
payment of dividends or unlawful purchase or redemption of its capital stock, or
(iv) for any transaction from which the director derived an improper personal
benefit.
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Our Bylaws provide that we must indemnify, to the fullest extent
permitted by law, any of our directors or officers who are made, are threatened
to be made, or otherwise become a party to any action or proceeding as a result
of the fact that such person was serving as a director and/or officer of the
Company. The Bylaws further provide that we must pay expenses that a director or
officer incurs in defending a proceeding prior to the final disposition of the
proceeding, provided the director or officer agrees to repay any amounts that we
advance if it is ultimately determined that the director or officer was not
entitled to indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to our directors, officers and controlling persons,
we have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by us of expenses incurred or paid by one or more of our
directors, officers or controlling persons in the successful defense of any
action, suit or proceeding) is asserted by any such director, officer or
controlling person in connection with the securities being registered, we will,
unless, in the opinion of our counsel, the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final adjudication of
such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit No. Exhibit Name
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(4) (a) Articles of Incorporation (1)
(b) Amended and Restated Bylaws (2)
(c) Specimen Common Stock Certificate (1)
(5) Opinion of Haley Weinblatt & Calcagni, LLP
(23) (a) Consent of Albrecht, Viggiano, Zureck & Company, P.C.
(b) Consent of Counsel (included in the opinion filed as Exhibit 5 to this
Registration Statement)
(24) Power of Attorney
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(99) Additional Exhibits
(a) Technology Development Consulting Agreement (3)
dated as of June 1, 2002 between the Company and
George H. Johnson and William L. Johnson
(1) Filed with the Company's Registration Statement on Form S-18
dated December 9, 1987 (Registration No. 33-19048-NY) and
Amendment Nos. 2 and 3 thereto dated February 17, 1988 and
February 22, 1988, respectively, and incorporated herein by
reference.
(2) Filed with the Company's Registration Statement on Form SB-2
dated April 20, 2000 (amending its Form S-18 Registration
Statement) and incorporated herein by reference.
(3) Filed with the Company's Report on Form 8-K dated October 2, 2003
and incorporated herein by reference.
ITEM 9. UNDERTAKINGS
The Registrant hereby undertakes:
1. To file, during any period in which offers or sales are bing
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 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. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to
the plan of distribution no previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
PROVIDED HOWEVER, that paragraphs (i) and (ii) do not apply
if the registration
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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 Exchange Act
that are incorporated by reference in the 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;
4. 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 the
registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such new securities at that
time shall be deemed to be the initial BONA FIDE offering
thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act 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 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 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 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 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 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 City of Huntington, State of New York, on December 19, 2003.
MURRAY UNITED DEVELOPMENT CORPORATION
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(Registrant)
By: / s / DWIGHT FOSTER
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Dwight Foster
Chief Executive Officer
Dated: December 19, 2003
By: / s / ANTHONY S. CAMPO
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Anthony S. Campo
Executive Vice President Secretary
and Treasurer
(Chief Financial Officer)
Dated: December 19, 2003
Pursuant to the requirements of Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
/ s / ANTHONY CAMPO
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Anthony S. Campo,
Chairman of the Board
/ s / DWIGHT FOSTER
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Dwight Foster, Director
/ s / FRANK PECORELLA
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Frank Pecorella, Director
Dated: December 19, 2003
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