As filed with the Securities and Exchange Commission on June 01, 2004 Reg. No.33
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________________________
Thinkpath Inc.
(Exact name of registrant as specified in its charter)
Ontario, Canada 52-209027
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
201 Westcreek Boulevard
Brampton, Ontario, Canada
L6T 5S6
Tel 905-460-3040
(Address of principal executive offices)
________________________________________________
ADVISORY AND CONSULTING AGREEMENTS
(Full title of plan)
________________________________
Declan A. French
Chairman & Chief Executive Officer
201 Westcreek Boulevard
Brampton, Ontario, Canada
(Name and address of agent for service)
Tel 905-460-3040
(Telephone number, including area code of agent for service)
Copy to:
Michael L. Corrigan, Esq.
7770 Regents Rd. Suite 113-401
San Diego, CA 92122-1967
(858) 362-1440
CALCULATION OF REGISTRATION FEE
-------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price Aggregate offering Amount of
to be registered Registered per share (1) Price Registration fee
- ------------------- ------------ --------------- ------------------ ----------------
Common Stock
(no par value)
250,000,000 $.0009 $225,000.00 $28.51
- ------------------- ------------ --------------- ------------------ ----------------
(1) Represents 250,000,000 shares of Common Stock to be issued as compensation
for services rendered.
(2) Estimated solely for the purpose of determining the amount of registration
fee and pursuant to Rules 457(c) and 457(h) of the General Rules and Regulations
under the Securities Act of 1933.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating parties in accordance with Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"). Such document(s) are not
being filed with the Commission pursuant to the introductory Note to Part 1 of
Form S-8, but constitute (along with the documents incorporated by reference to
the Registration Statement pursuant to Item 3 of Part II hereof) a prospectus
that meets the requirements of Section 10(a) of the Act.
Purposes:
The Common Stock will be issued by the Company pursuant to an agreement entered
into by the Company and approved by the Board of Directors of the Company (the
"Board of Directors"). The agreement is intended to provide a method whereby the
Company may be stimulated by the personal involvement of the Consultant in the
Company's business thereby advancing the interests of the Company, and all of
its shareholders.
Common Stock:
The Board has authorized the issuance of up to 250,000,000 shares of the Common
Stock to the Consultant upon effectiveness of the registration statement.
Consultants:
The Consultant has agreed to provide its expertise and advice to the Company on
a non-exclusive basis for the purpose of generally representing the Company with
respect to certain matters as described in the Consultant's engagement
agreement.
No Restrictions on Transfer
Upon the shares becoming "Earned" pursuant to the terms of Consultant's
engagement agreement, the Consultant will become the record and beneficial owner
of the shares of Common Stock upon issuance and delivery and is entitled to all
of the rights of ownership, including the right to vote any shares awarded and
to receive ordinary cash dividends on the Common Stock.
Tax Treatment to the Consultant
The Common Stock is not qualified under Section 401(a) of the Internal Revenue
Code. The Consultant, therefore, will be deemed for federal income tax purposes
to recognize ordinary income during the taxable year in which the first of the
following events occurs: (a) the shares become freely transferable, or (b) the
shares cease to be subject to a substantial risk of forfeiture. Accordingly, the
Consultant will receive compensation taxable at ordinary rates equal to the fair
market value of the shares on the date of receipt since there will be no
substantial risk of forfeiture or other restrictions on transfer. If, however,
the Consultant receives shares of common stock pursuant to the exercises of an
option or options at an exercise price below the fair market value of the shares
on the date of exercise, the difference between the exercise price and the fair
market value of the stock on the date of exercise will be deemed ordinary income
for federal tax purposes. The Consultant is urged to consult his tax advisor on
this matter. Further, if any recipient is an "affiliate", Section 16(b) of the
Exchange Act is applicable and will affect the issue of taxation.
Tax Treatment to the Company
The amount of income recognized by any recipient hereunder in accordance with
the foregoing discussion will be an expense deductible by the Company for
federal income tax purposes in the taxable year of the Company during which the
recipient recognizes income.
Restrictions of Resales
In the event that an affiliate of the Company acquires shares of Common Stock
hereunder, the affiliate will be subject to Section 16(b) of the Exchange Act.
Further, in the event that any affiliate acquiring shares hereunder has sold or
sells any shares of Common Stock in the six months preceding or following the
receipt of shares hereunder, any so called "profit", as computed under Section
16(b) of the Exchange Act, would be required to be disgorged from the recipient
to the Company. Services rendered have been recognized as valid consideration
for the "purchase" of shares in connection with the "profit" computation under
Section 16(b) of the Exchange Act. The Company has agreed that for the purpose
of any "profit" computation under 16(b) the price paid for the Common Stock
issued to affiliates is equal to the value of services rendered. Shares of
Common Stock acquired hereunder by persons other than affiliates are not subject
to Section 16(b) of the Exchange Act.
Item 2. Registrant Information
A copy of any document or part hereof incorporated by reference in this
Registration Statement but not delivered with this Prospectus or any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Requests should be
addressed to: 201 Westcreek Boulevard, Brampton, Ontario, Canada L6T 5S6.
Legal Opinions and Experts
Michael L. Corrigan has rendered an opinion on the validity of the securities
being registered.
The financial statements of Thinkpath Inc. by reference in the Company's Annual
Report (Form 10-K) for the period ended December 31, 2003, have been audited by
Schwartz Levitsky Feldman LLP, independent auditors, as set forth in their
report incorporated herein by reference and are incorporated herein by reference
and are incorporated herein in reliance upon such report given upon the
authority of the firm as experts in auditing and accounting.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this registration
statement and are not required to be filed with this registration statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2003, filed on April 13, 2004 pursuant to Section 15(d) of the
Securities Exchange Act of 1934, as amended.
(b) Registrant's quarterly reports on Form 10-Q, for the fiscal quarters
ended March 31, 2004, September 30, 2003, and June 30, 2003 and registrant's
current reports on Form 8-K, pursuant to Section 15(d) of the Securities
Exchange Act of 1934, as amended.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 after 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
hereunder have been sold, or which deregisters all securities then remaining
unsold under this registration statement, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Our Bylaws provide that we shall indemnify our directors and officers. The
pertinent section of Canadian law is set forth below in full. In addition, we
currently have officers' and directors' liability insurance.
Section 136 of the Business Corporations Act (Ontario) provides as follows:
(1) INDEMNIFICATION OF DIRECTORS. A corporation may indemnify a director or
officer of the corporation, a former director or officer of the corporation or a
person who acts or acted at the corporation's request as a director or officer
of a body corporate of which the corporation is or was a shareholder or
creditor, and his or her heirs and legal representatives, against all costs,
charges and expenses, including an amount paid to settle an action or satisfy a
judgment, reasonably incurred by him or her in respect of any civil, criminal or
administrative action or proceeding to which he or she is a party by reason of
being or having been a director or officer of such corporation or body
corporate, if;
(a) he or she acted honestly and in good faith with a view to the best interests
of the corporation; and
(b) in the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, he or she had reasonable grounds for believing
that his or her conduct was lawful.
(2) IDEM. A corporation may, with the approval of the court, indemnify a person
referred to in subsection (1) in respect of an action by or behalf of the
corporation or body corporate to procure a judgment in its favor, to which the
person is made a party by reason of being or having been a director or an
officer of the corporation or body corporate, against all costs, charges and
expenses reasonably incurred by the person in connection with such action if he
or she fulfils the conditions set out in clauses (1)(a) and (b).
(3) IDEM. Despite anything in this section, a person referred to in subsection
(1) is entitled to indemnity from the corporation in respect of all costs,
charges and expenses reasonably incurred by him in connection with the defense
of any civil, criminal or administrative action or proceeding to which he or she
is made a party by reason of being or having been a director or officer of the
corporation or body corporate, if the person seeking indemnity;
(a) was substantially successful on the merits in his or her defense of the
action or proceeding; and
(b) fulfills the conditions set out in clauses (1)(a) and (b).
(4) LIABILITY INSURANCE. A corporation may purchase and maintain insurance for
the benefit of any person referred to in subsection
(1) against any liability incurred by the person,
(a) in his or her capacity as a director of the corporation, except where the
liability relates to the person's failure to act honestly and in good faith with
a view to the best interests of the corporation; or
(b) in his or her capacity as a director or officer of another body corporate
where the person acts or acted in that capacity at the corporation's request,
except where the liability relates to the person's failure to act honestly and
in good faith with a view to the best interests of the body corporate.
(5) APPLICATION TO COURT. A corporation or a person referred to in subsection
(1) may apply to the court for an order approving an indemnity under this
section and the court may so order and make any further order it thinks fit.
(6) IDEM. Upon application under subsection (5), the court may order notice to
be given to any interested person and such person is entitled to appear and be
heard in person or by counsel.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of
Thinkpath under Ontario law or otherwise, we have been advised the opinion of
the Securities and Exchange Commission is that such indemnification is against
public policy as expressed in the Securities Act of 1933, as amended and is,
therefore, unenforceable. In the event a claim for indemnification against such
liabilities (other than payment by Thinkpath for expenses incurred or paid by a
director, officer or controlling person of Thinkpath in successful defense of
any action, suit, or proceeding) is asserted by a director, officer or
controlling person in connection with the securities being registered, Thinkpath
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 in said
Act and will be governed by the final adjudication of such issue.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits to this registration statement are listed in the index to Exhibits.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
1. To file, during the 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 a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement., and,
(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.
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.
4. The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
5. 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 pursuant to the plan's annual report pursuant to section 15(d) for 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.
6. 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 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 on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, whereunto duly
authorized, in Toronto, Ontario, Canada, on June 1, 2004.
Thinkpath Inc.
/S/ Declan A. French
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Declan A. French, Chairman of the Board & Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, the
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
/S/ Declan A. French
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Declan A. French, Chairman of the Board & Chief Executive Officer
Dated: June 1, 2004
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
- --- -----------
4.1 Consulting Agreement, Jeffery Flannery
5.1 Opinion of Counsel, Michael L. Corrigan
23.1 Consent of Schwartz Levitsky Feldman LLP
23.2 Consent of Michael L. Corrigan
(included in Exhibit 5.1)