As filed with the Securities and Exchange Commission on May 29, 2001
Registration No. 333-_________
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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
BESTNET COMMUNICATIONS CORP.
(Exact name of registrant as specified in its charter)
Nevada 86-1006416
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5210 E. Williams Circle, Suite 200, Tucson, Arizona 85711
(Address of Principal Executive offices) (Zip Code)
2000 Incentive Stock Plan
(Full title of the plan)
Gerald I. Quinn
BestNet Communications Corp.
5210 E. Williams Circle, Suite 200
Tucson, Arizona 85711
(Name and address of agent for service)
(520) 750-9093
(Telephone number, including area code, of agent for service)
With copy to:
Gregory R. Hall, Esq.
Squire, Sanders & Dempsey L.L.P.
40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
(602) 528-4000
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE * PRICE * FEE
- --------------------------------------------------------------------------------
Common Stock,
$.001 par value 5,000,000* $2.36** $11,800,000** $2,950.00
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- ----------
* This Registration Statement also covers such additional shares of Common
Stock as may be issuable pursuant to adjustments deemed necessary or
equitable by the Board of Directors of the Registrant upon stock splits,
stock dividends, or other similar changes in capitalization, as provided in
the 2000 Incentive Stock Plan.
** Estimated solely for the purpose of determining the registration fee in
accordance with Rules 457(c) and 457(h) of the Securities Act of 1933, on
the basis of the average of the high and low prices for shares of Common
Stock on May 22, 2001 as reported on the OTC Bulletin Board.
This Registration Statement shall become effective automatically upon the date
of filing in accordance with Section 8(a) of the Securities Act of 1933, as
amended.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and
2, will be delivered to employees in accordance with Form S-8 and Securities Act
Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference into this
Registration Statement and shall be deemed a part hereof:
(a) the Annual Report of BestNet Communications Corp. ("BestNet") on Form
10-K for the fiscal year ended August 31, 2000;
(b) all reports filed by BestNet with the Securities and Exchange
Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") subsequent to August 31, 2000; and
(c) the description of BestNet's common stock, contained in its
registration statement filed pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by BestNet pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, after the date hereof and prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all 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 hereof from the date
of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES. NOT APPLICABLE.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. NOT APPLICABLE.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Article XV of BestNet's Bylaws, it shall indemnify each of its
directors and officers 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 is or was a director
or officer 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 such action, suit or
proceeding if he acted in good faith and in a manner 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. Except as provided herein below, any such indemnification
shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth
above. Such determination shall be made: (a) by the Board of Directors by a
majority vote of a quorum of directors who were or are not parties to such
action, suit, or proceeding, or (b) by the shareholders.
Expenses (including attorneys' fees) incurred in defending a civil or
criminal action, suit, or proceeding may be paid by the corporation in advance
of the final disposition of such action or proceeding, if authorized by the
Board of Directors and upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the corporation.
To the extent that a director or officer has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to above, or
in defense of any claim issue or matter therein, he shall be indemnified against
expenses (including attorney's fees) actually and reasonably incurred by him in
connection therewith, without any further determination that he has met the
applicable standard of conduct set forth above.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
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4 2000 Incentive Stock Plan
Form of opinion rendered by Squire, Sanders & Dempsey L.L.P
5 (including consent)
23.1 Consent of Semple & Cooper, L.L.P.
23.2 Consent of Counsel
24 Powers of Attorney
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 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
20 percent 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 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 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed 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.
(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 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 of 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 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 Tucson, State of Arizona, on this 29th day of May,
2001.
BESTNET COMMUNICATIONS CORP.,
a Nevada corporation
By /s/ Gerald I. Quinn
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Gerald I. Quinn, President and CEO
(Principal Executive Officer)
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes
and appoints Gerald I. Quinn as 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 Form S-8 Registration Statement,
and to file the same with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting such
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 and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such attorney-in-fact and agent
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 below by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Gerald I. Quinn President and Chief May 29, 2001
- ------------------------------- Executive Officer and
Gerald I. Quinn Director (Principal
Executive Officer and
Principal Accounting
Officer)
/s/ Alexander Christopher Lang Director May 29, 2001
- -------------------------------
Alexander Christopher Lang
/s/ Kelvin C. Wilbore Director May 29, 2001
- -------------------------------
Kelvin C. Wilbore
/s/ Kevin England Director May 29, 2001
- -------------------------------
Kevin England
/s/ Herman Haenert Director May 29, 2001
- -------------------------------
Herman Haenert
EXHIBIT INDEX
EXHIBIT PAGE OR
NUMBER DESCRIPTION METHOD OF FILING
- ------ ----------- ----------------
4 2000 Incentive Stock Plan *
5 Form of opinion rendered by Squire, Sanders
& Dempsey L.L.P (including consent) *
23.1 Consent of Semple & Cooper L.L.P. *
23.2 Consent of Counsel See Exhibit 5
24 Powers of Attorney See Signature Page
* Filed herewith.