CMKM Diamonds, Inc. – ‘S-8’ on 5/18/01

On:  Friday, 5/18/01, at 5:07pm ET   ·   Effective:  5/18/01   ·   Accession #:  1094891-1-500149   ·   File #:  333-61266

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Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan   —   Form S-8
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-8         Registration Statement on Form S-8                     9     30K 
 2: EX-4.1      2001 Performance Equity Plan                          13     61K 
 3: EX-5.1      Legal Opinion                                          2±     9K 
 4: EX-23.1     Consent of Independent Auditors                        1      6K 

S-8   —   Registration Statement on Form S-8
Document Table of Contents

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As filed with the Securities and Exchange Commission on May 18, 2001            
                                                                Registration No.
------------------------------------------------------------------------------- 

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
 UNDER
THE SECURITIES ACT OF 1933
------------------
CYBER MARK INTERNATIONAL CORP.
(Exact Name of Registrant as Specified in Its Charter)

Delaware                                         N/A          
-------------------------------------------     --------------------------      
State or Other Jurisdiction of                   (I.R.S. Employer       
Incorporation or Organization                 Identification Number)  

 359 ENFORD ROAD, UNIT 1
RICHMOND HILL, ONTARIO, CANADA L4C 3G2
(Address of Principal Executive Offices)

2001 PERFORMANCE EQUITY PLAN
(Full Title of the Plan)

 SAMUEL SINGAL, Chairman
Cyber Mark International Corp.
 359 Enford Road, Unit 1
Richmond Hill, Ontario, Canada L4C 3G2
(905) 770-4602
 (Name, Address and Telephone Number, Including Area Code, of Agent For Service)

 with a copy to:

 ANDREW D. HUDDERS, ESQ.
 Graubard Miller
600 Third Avenue
 New York, New York 10016-2097
 Telephone: (212) 818-8800

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                                                        [Enlarge/Download Table]
                                              CALCULATION OF REGISTRATION FEE                                                       

============================================ ================= ======================== ====================== =====================

                                                          Proposed maximum   Proposed maximum                                       
Title of Securities                        Amount to be    offering price      Aggregate        Amount of                           
to be registered                          Registered(2)       per share     Offering price   registration fee                       
---------------------------------------- --------------- ----------------- ----------------- -------------------                    
                                                                                                                                    
Common stock issuable upon exercise of                                                                                              
options which may be granted under the     10,000,000          $.12(1)         $1,200,000            $300.00                        
2001 Performance Equity Plan                                                                                                        
======================================== =============== ================= ================= ===================                    

(1) Based on the last sale price of a share of our common stock as reported by  
The OTC Bulletin Board on May 15, 2001 in accordance with Rules 457(c) and      
457(h) promulgated under the Securities Act of 1933, as amended ("Securities    
Act").                                                                          

(2) Pursuant to Rule 416, there are also being registered additional shares of  
common stock as may become issuable pursuant to the anti-dilution provisions of 
such plan.                                                                      

------------------

   In accordance with the provisions of Rule 462 promulgated under the
Securities Act, this registration statement will become effective upon filing   
with the Securities and Exchange Commission.                                    

------------------

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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 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 previously filed by us with the SEC are 
incorporated by reference in this registration statement:                       

  o       our Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2000;                              

      o       our Quarterly Report on Form 10-QSB for the period ended March
31, 2001; and                                   

        o       the description of our common stock, par value $.0001 per share,
               contained in our registration statement on Form 10-SB File (No.
            0-26919) filed with the SEC pursuant to Section 12(g) of the
                Exchange Act, including any subsequent amendment(s) or report(s)
   filed for the purpose of updating such description.

  All documents subsequently filed by us 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 the 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 of    
this registration statement from the respective date of filing. Any statement   
contained in a document incorporated by reference in this registration statement
will be modified or superseded for all purposes to the extent that a statement  
contained in this registration statement or in any other subsequently filed     
document which is incorporated by reference modifies or replaces such statement.

Item 4. Description of Securities.                                              

       Our common stock is registered under Section 12(g) of the Exchange Act.

Item 5. Interests of Named Experts and Counsel.                                 

Not applicable.                                                 

Item 6. Indemnification of Directors and Officers.                              

   Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation 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 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 that such person's conduct was unlawful. The        
termination of any action, suit, or proceeding by judgment, order, settlement,  
conviction, or upon plea of nolo contendere or its equivalent, does not, of     
itself, create a presumption that such person did not act in good faith and in a
manner that 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.                                                                       

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       In the case of an action by or in the right of the corporation, Section
145 empowers a corporation 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 in
any of the capacities set forth above 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 that such person reasonably believed to be in and not opposed to
the best interests of the corporation, except that indemnification is not       
permitted in respect of any claim, issue, or matter as to which such person is  
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         
determines 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 that the Court of Chancery or such other
court deems proper.                                                             

Section 145 further provides:                                   

        o       that a Delaware corporation is required to indemnify a director,
       officer, employee, or agent against expenses (including
                attorneys' fees) actually and reasonably incurred by such person
                in connection with any action, suit, or proceeding or in defense
              of any claim, issue, or matter therein as to which such person
has been successful on the merits or otherwise; 

     o       that indemnification provided for by Section 145 shall not be
             deemed exclusive of any other rights to which the indemnified
party may be entitled;                          

      o       that indemnification provided for by Section 145 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 such person's heirs,
executors, and administrators; and              

       o       that a Delaware corporation may purchase and maintain insurance
       on behalf of its directors or officers against any such
           liability asserted against them as directors or officers or
               arising out of their status as directors or officers whether or
          not the corporation would have the power to indemnify them
against liability under Section 145.            

A Delaware corporation may provide indemnification only as authorized in the    
specific case upon a determination that indemnification of the director,        
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct. Such determination is to be made (i) by the     
board of directors by a majority vote of a quorum consisting of directors who   
were not party to such action, suit, or proceeding, or (ii) if such a quorum is 
not obtainable, or, even if obtainable, a quorum of disinterested directors so  
directs, by independent legal counsel in a written opinion, or (iii) by the     
stockholders.                                                                   

     Article VI of our Bylaws provide for indemnification of our directors
and officers to the fullest extent permitted by law, as now in effect or later  
amended. Article VI of our Bylaws provides that expenses incurred by a director 
or officer in defending a civil or criminal action, suit, or proceeding may be  
paid by us in advance of a final disposition upon receipt of an undertaking by  
or on behalf of the director or officer to repay such amount if it is ultimately
determined that the director or officer was not entitled to be indemnified by   
us.                                                                             

        Paragraph 15 of our Certificate of Incorporation eliminates the personal
liability of our directors to the fullest extent permitted by the provisions of 
Section 102 of the Delaware General Corporation Law, as the same may be amended 
and supplemented.                                                               

Item 7. Exemption from Registration Claimed.                                    

Not Applicable.                                                 

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Item 8. Exhibits.                                                               

Exhibit No.     Description                                                     
-----------     ---------------                                                 

4.1       Form of 2001 Performance Equity Plan                      
5.1       Opinion of Graubard Miller                                
23.1       Consent of Citrin  Cooperman & Company,  LLP,              
independent  auditors  for the Company          
23.2       Consent of Graubard Miller (included in Exhibit 5.1)       

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.                                  

             (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.                                                    

      (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,   

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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 registration of 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 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 Richmond Hill, Ontario, on this 17th day of May, 2001.           

                      CYBER MARK INTERNATIONAL CORP.

             By:  /s/Samuel Singal
                                   ---------------------------------------
                                    Samuel Singal, Chairman of the Board

       Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following person in the      
capacity and on the date indicated.                                             

Signature          Title                                          Date          
---------          --------                                       ----          

/s/Samuel Singal   Chairman of the Board, President, Chief                      
-----------------  Operating Officer and Director              May 17, 2001     
Samuel Singal      (Principal Accounting Officer)                               

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EXHIBIT INDEX 

Exhibit No.     Description                                                     
-----------     --------------                                                  

4.1     Form of 2001 Performance Equity Plan                    

5.1     Opinion of Graubard Miller                              

        23.1    Consent of Citrin Cooperman & Company, LLP, independent auditors
for the Company                                 

23.2    Consent of Graubard Miller (included in Exhibit 5.1)    

Dates Referenced Herein   and   Documents Incorporated by Reference

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		5/15/01		2
		3/31/01		4					10QSB
		12/31/00		4					10KSB40,  NT 10-K
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