SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
DESTINY MEDIA TECHNOLOGIES INC.
(Exact Name of Registrant as Specified in Its Chapter)
COLORADO 84-1516745
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(State of Incorporation) (I.R.S. Employer
Identification No.)
1055 West Hastings Street, Suite 1040
Vancouver, British Columbia
Canada V6E 2E9
Telephone: (604) 609-7736
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(Address and Telephone Number of Principal Executive Offices)
INDIVIDUAL CONSULTANT AGREEMENTS BETWEEN
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THE CORPORATION AND TWO OF ITS CONSULTANTS
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(Full Title of the Plan)
DESTINY MEDIA TECHNOLOGIES INC., Attention: STEVE VESTERGAARD, Chairman
1055 West Hastings Street, Suite 1040
Vancouver, British Columbia
Canada V6E 2E9
Telephone: (604) 609-7736
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(Name, Address and Telephone Number of Agent for Service)
CALCULATION OF REGISTRATION FEE
CALCULATION OF REGISTRATION FEE
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TITLE PROPOSED PROPOSED
OF MAXIMUM MAXIMUM
SECURITIES OFFERING AGGREGATE AMOUNT OF
TO BE AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED (1) REGISTERED(1)(2) SHARE (3) PRICE (3) FEE (3)
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Common Stock 1,100,000 $0.10
$0.001 par value Shares Per Share $110,000 $11
======================================================================
(1) This registration statement covers the common stock issuable pursuant to
consultant agreements between the registrant and two of its consultants
(the "Consultant Agreements").
(2) This registration statement shall also cover an indeterminable number of
additional shares of common stock which may become issuable under the
consultant agreements by reason of any stock dividend, stock split,
re-capitalization or any other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
registrant's outstanding shares of common stock.
(3) The Proposed Maximum Offering Price Per Share is calculated in accordance
with Rule 457(h) of the Securities Act of 1933, as amended, based upon the
deemed fair market value of $0.10 per common share of the common shares of
the Registrant to be issued pursuant to the Consultant Agreements. The
Proposed Aggregate Maximum Aggregate Offering Price is based on the
Proposed Maximum Offering Price Per Share times the total number of shares
of Common Stock to be registered. These amounts are calculated solely for
the purpose of calculating the registration fee pursuant to Rule 457(h)(1)
under Securities Act of 1933, as amended.
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Copies to:
Michael A. Cane
Cane O'Neill Taylor, LLC
2300 W. Sahara Ave., Suite 500
Las Vegas, Nevada 89102
(702) 312-6255
PART I
INFORMATION REQUIRED IN 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 Section 10(a) prospectus
is omitted from the Registration Statement in accordance with Rule 428
under the Securities Act of 1933, and Note to Part I of Form S-8.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed by Destiny Media Technologies Inc. (the
"Company"), with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(1) The Company's Annual Report filed on Form 10-KSB with the
Securities and Exchange Commission on November 29, 2001;
(2) The Company's Quarterly Reports on Form 10-QSB filed with the
Securities and Exchange Commission on January 14, 2002, April 22,
2002 and July 15, 2002;
(3) All other reports filed by the Company pursuant to Sections 13(a)
or 15(d) of the Exchange Act subsequent to the filing of the
Company's Annual Report with the Securities and Exchange
Commission on November 29, 2001;
(4) The description of the Company's Common Stock which is contained
in the Company's Form 10-SB Registration Statement, filed with
the Securities and Exchange Commission pursuant to Section 12(g)
of the Securities Exchange Act of 1934 (the "Exchange Act")
originally on November 23, 1999 and as amended through April 24,
2000.
All reports and other documents subsequently filed by the Company 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 securities offered have been
sold or which de-registers all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part of this Registration
Statement from the date of the filing of such reports and documents.
Any statement contained in an Incorporated Document 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
Incorporated Document modifies or supersedes such statement. Any such 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.
The securities to be offered are registered under Section 12 of the Exchange Act
of 1934.
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Item 5. Interests of Named Experts and Counsel.
No expert or counsel named in this prospectus as having prepared or certified
any part of it or as having given an opinion upon the validity of the securities
being registered or upon other legal matters in connection with the registration
or offering of the common stock was employed on a contingency basis, or had, or
is to receive, in connection with the offering, a substantial interest, direct
or indirect, in the Company or any of its parents or subsidiaries. Nor was any
such person connected with the Company or any of its parents or subsidiaries as
a promoter, managing or principal underwriter, voting trustee, director,
officer, or employee.
Anderson & Keil, independent legal counsel to the Company, has provided an
opinion regarding the due authorization and valid issuance of the shares of
Common Stock.
Item 6. Indemnification of Directors and Officers.
The officers and directors of the Company are indemnified as provided by the
Colorado Business Corporations Act (the "CBCA"), the Articles of Incorporation
and the Bylaws of the Company.
Under Article 7-109-102 of the CBCA, a corporation may indemnify an officer or
director made a party to a proceeding because the person is or was a director
against liability incurred in the proceeding if:
(a) The person conducted himself or herself in good faith; and
(b) The person reasonably believed:
(i) In the case of conduct in an official capacity with the
corporation, that his or her conduct was in the corporation's
best interests; and
(ii) In all other cases, that his or her conduct was at least not
opposed to the corporation's best interests; and
(c) In the case of any criminal proceeding, the person had no reasonable cause
to believe his or her conduct was unlawful.
A corporation may not indemnify a director under the CBCA:
(a) In connection with a proceeding by or in the right of the corporation in
which the director as adjudged liable to the corporation; or
(b) In connection with any other proceeding charging that the director derived
an improper personal benefit, whether or not involving action in an
official capacity, in which proceeding the director was adjudged liable on
the basis that he or she derived an improper personal benefit.
Under the CBCA, a corporation may not indemnify a director under section
7-109-102 unless authorized in the specific case after a determination has been
made that indemnification of the director is permissible in the circumstances
because the director has met the standard of conduct set forth in section
7-109-102.
Under Article 7-109-103 of the CBCA, a corporation shall indemnify an officer or
director who was wholly successful, on the merits or otherwise, in the defense
of any proceeding to which the person was a party because the person is or was a
director, against reasonable expenses incurred by him or her in connection with
the proceeding, unless limited by the corporation's articles of incorporation.
The Company's articles of incorporation do not contain any such limitation.
The Company's articles of incorporation provide that the Company shall
indemnify, to the maximum extent permitted by Colorado law, any person who is or
was a director, officer, agent, fiduciary or employee of the Company against any
claim, liability or expense arising against or incurred by such person made
party to a proceeding because he is or was a director, officer, agent, fiduciary
or employee of the corporation or because he is or was serving another entity or
employee benefit plan as a director, officer, partner, trustee, employee,
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fiduciary or agent at the Company's request. The Company shall further have the
authority to the maximum extent permitted by Colorado law to purchase and
maintain insurance providing such indemnification.
The Bylaws of the Company provide that the Company shall indemnify any officer
and director against reasonably incurred expenses (including attorneys' fees),
judgments, penalties, fines (including any excise tax assessed with respect to
an employee benefit plan) and amounts paid in settlement reasonably incurred by
him in connection with such action, suit or proceeding if it is determined in
accordance with the Bylaws of the Company that he conducted himself in good
faith and that he reasonably believed (i) in the case of conduct in his official
capacity with the Company, that his conduct was in the Company's best interests,
or (ii) in all other cases (except criminal cases), that his conduct was at
least not opposed to the Company's best interest, or (iii) in the case of any
criminal proceeding, that he had no reasonable cause to believe his conduct was
unlawful.
No indemnification shall be made under the Bylaws of the Company to an officer
or director with respect to any claim, issue or matter in connection with a
proceeding by or in the right of a corporation in which the officer or director
was adjudged liable to the corporation or in connection with any proceeding
charging the officer or director derived an improper personal benefit, whether
or not involving action in an official capacity, in which he was adjudged liable
on the basis that he derived an improper personal benefit. Further,
indemnification under the Bylaws in connection with a proceeding brought by or
in the right of the Company shall be limited to reasonable expenses, including
attorney's fees, incurred in connection with the proceeding.
The Bylaws also provide that the Company shall indemnify any officer or director
who was wholly successful, on the merits or otherwise, in defense of any action,
suit, or proceeding as to which he was entitled to indemnification under the
Bylaws against expenses (including attorneys' fees) reasonably incurred by him
in connection with the proceeding without the necessity of any action by the
Company other than the determination in good faith that the defense has been
wholly successful.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description of Document
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5.1 Opinion of Anderson & Keil, independent legal counsel, regarding the
due authorization and valid issuance of the shares of Common Stock,
with consent to use.
10.1 Consulting Agreement between the Company and Arn Schoch
10.2 Consulting Agreement between the Company and Charles Van Musscher
23.1 Consent of KPMG LLP, Independent Auditors
24.1 Power of Attorney (included on the signature page of this registration
statement).
Item 9. Undertakings.
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration:
(1) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(2) 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; and
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(3) 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 that paragraphs (a) (1) and (2) 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 section 15(d) of the Exchange Act that are incorporated by
reference herein.
(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 that time shall be deemed to be the initial
bona fide offering thereof.
(c) To remove from registration by means of post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(2) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or 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 the time
shall be deemed to be the initial bona fide 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 Company pursuant to the foregoing provisions, or otherwise, the Company
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
Company of expenses incurred or paid by the 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 the counsel the matter has been settled by
controlling precedent, submit to the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
Destiny Media Technologies Inc., certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing a 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 September 23, 2002.
DESTINY MEDIA TECHNOLOGIES INC.
By: /s/ STEVE VESTERGAARD
______________________
STEVE VESTERGAARD, Chairman
(Principal Executive Officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Steve
Vestergaard, as his true and lawful attorney-in-fact and agent with full power
of substitution and re-substitution for him and his name, place and stead, in
any and all capacities, to sign any or all amendments to this Registration
Statement (including post-effective amendments or any abbreviated registration
statements and any amendments thereto filed pursuant to Rule 462(b) increasing
the number of securities for which registration is sought) and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the foregoing, as fully to all intents and
purposes as he might or could do in person hereby ratifying and confirming all
that said attorney-in-fact, or his substitute, 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 person in the capacities and on
the date indicated.
Signature Title Date
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/s/ STEVE VESTERGAARD President & Director
________________________ (Principal Executive Officer) September 23, 2002
STEVE VESTERGAARD (Principal Accounting Officer)
/s/ ED KOLIC
________________________ Director September 23, 2002
ED KOLIC
/s/ WAYNE KOSHMAN
________________________ Director September 23, 2002
WAYNE KOSHMAN
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