AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 31, 2003
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
__________________
MDC CORPORATION INC.
(Exact name of Registrant as specified in its charter)
ONTARIO NOT APPLICABLE
(Jurisdiction of Incorporation) (I.R.S. Employer Identification No.)
45 HAZELTON AVENUE
TORONTO, ONTARIO, CANADA
M5R 2E3
(416) 960-9000
(Address and telephone number of Registrant's principal executive offices)
MDC CORPORATION INC.
STOCK OPTION PLAN
(Full title of plan)
ASHTON POTTER (USA) LTD.
10 CURTWRIGHT DRIVE
WILLIAMSVILLE, NY 14221
(716) 689-9035
(Name, address and telephone number of agent for service)
Copy to:
CHRISTOPHER W. MORGAN, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
SUITE 1820, P.O. BOX 189
NORTH TOWER, ROYAL BANK PLAZA
TORONTO, ONTARIO, CANADA M5J 2J4
(416) 777-4700
CALCULATION OF REGISTRATION FEE
============================== ================ ============== ================== =================
PROPOSED
MAXIMUM PROPOSED MAXIMUM
TITLE OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE REGISTRATION FEE
------------------------------ ---------------- -------------- ------------------ -----------------
CLASS A SUBORDINATE VOTING SHARES 14,533 $3.80 $55,226 $4.47
2,858 $4.45 $12,718 $1.03
9,250 $5.70 $52,725 $4.27
19,050 $6.46 $123,063 $9.96
22,860 $6.65 $152,019 $12.30
506 $12.15 $6,148 $0.50
953 $13.10 $12,485 $1.01
11,526 $21.83 $251,613 $20.36
946 $22.79 $21,560 $1.74
33,818 $24.68 $834,628 $67.52
1,960 $30.37 $59,525 $4.82
1,010 $32.27 $32,593 $2.64
784 $33.22 $26,045 $2.11
4,763 $37.97 $180,851 $14.63
60,856 $40.82 $2,484,142 $200.97
---------------- -------------- ------------------ -----------------
Total 185,673 $4,305,341 $348.33
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NOTES
(1) The Class A Subordinate Voting Shares being registered relate to past
option grants, with option exercise prices as indicated.
(2) In accordance with Rule 457(h)(1), the maximum offering price for
common shares in connection with issued options is the option
exercise price (initially expressed in Canadian dollars) converted to
U.S. dollars using a factor of 0.7232, the inverse of the noon buying
rate in New York City for cable transfers in Canadian dollars as
certified by the Federal Reserve Bank of New York on July 28, 2003.
PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents, or excerpts thereof as indicated, filed
with the Securities and Exchange Commission (the "Commission") are
incorporated by reference into this Registration Statement:
(a) Annual Report on Form 40-F of MDC Corporation Inc.(the
"Registrant") for the fiscal year ended December 31,
2002, filed with the Commission on June 25, 2003 (File
No. 001-13718);
(b) All reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") since December 31, 2002;
and
(c) The description of the Class A Subordinate Voting Shares
included in the Registration Statement on Form 8-A of
the Registrant, filed with the Commission on October 13,
1998.
All documents hereafter filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 into 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. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Under the Business Corporations Act (Ontario), the Registrant
may indemnify a present or former director or officer of the Registrant
or a person who acts or acted at the Registrant's request as a director
or officer of another corporation which the Registrant is or was a
shareholder or creditor, and his 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 in respect of
any civil, criminal or administrative action or proceeding to which he or
she is made a party by reason of such position, and provided that the
director or officer acted honestly and in good faith with a view to the
best interests of the Registrant and, in the case of a criminal or
administrative action or proceeding that is enforced by a monetary
penalty, had reasonable grounds for believing that his conduct was
lawful. Such indemnification may, with the approval of the court, be made
in connection with the procuring of a judgment in favor of the Registrant
or such other company if the conditions set forth above have been
fulfilled. A director or officer is entitled to indemnification from the
Registrant as a matter of right if he was substantially successful on the
merits and fulfilled the conditions set forth above.
The by-laws of the Registrant provide that, subject to Section
136 of the Business Corporations Act (Ontario), every director and
officer of the Registrant and his heirs, executors, administrators and
other legal personal representatives shall from time to time be
indemnified and saved harmless by the Registrant from and against,
(a) any liability and all costs, charges and expenses that
he sustains or incurs in respect of any action, suit or
proceeding that is proposed or commenced against him or
her for or in respect of anything done or permitted by
him in respect of the execution of the duties of his or
her office; and
(b) all other costs, charges and expenses that he sustains
or incurs in respect of the affairs of the Registrant.
The Registrant shall also indemnify such person in such other
circumstances as the Business Corporations Act (Ontario) permits or requires.
The Registrant maintains Director's and Officers' Liability Insurance
in the amount of Cdn$35 million for the benefit of the directors and officers
of the Registrant and its subsidiaries. No portions of the premiums were paid
by the directors and officers of the Registrant. No portion of the policy
deductible is payable by the directors and officers of the Registrant.
Reference is made to Item 9 for the undertakings of the Registrant
with respect to indemnification for liabilities arising under the Securities
Act of 1933 (the "Securities Act").
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not Applicable.
ITEM 8. EXHIBITS.
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The following exhibits are attached hereto:
Exhibit
Number Description
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4.1 Sections 4 and 6 of the Articles of Amalgamation of
the Registrant.
5.1 Opinion of Fogler, Rubinoff LLP as to the legality of the
securities being registered.
23.1 Consent of Fogler, Rubinoff LLP (included in Exhibit 5.1 to
this Registration Statement).
23.2 Consent of BDO Dunwoody LLP.
24.1 Power of Attorney (included on page 7 of this Registration
Statement).
ITEM 9. UNDERTAKINGS.
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A. The 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 to include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this 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.
B. The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to
Sections 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating
to the securities offered herein, 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 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 Toronto, Province of Ontario,
Canada, on the 31st day of July, 2003.
MDC CORPORATION INC.
By: /s/ Walter Campbell
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Walter Campbell
Senior Vice President, Finance
POWER OF ATTORNEY
KNOW ALL MEN AND WOMEN BY THESE PRESENTS, that each officer or
director of MDC Corporation Inc. whose signature appears below constitutes and
appoints Miles S. Nadal and Peter M. Lewis, and each of them, with full power
to act without the other, his true and lawful attorneys-in-fact and agents,
with full and several power of substitution, for him and in his name, place
and stead, in any and all capacities, to sign any or all amendments, including
post-effective amendments, and supplements to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents 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 to all intents and purposes as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or his or their substitute or substitutes, 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 or on behalf of the following
persons in the capacities indicated on July 31, 2003.
Signature Title
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/s/ Miles S. Nadal Chairman, President and Chief
--------------------------- Executive Officer and Director
Miles S. Nadal (Principal Executive Officer)
/s/ Peter M. Lewis Executive Vice President and Chief
--------------------------- Financial Officer
Peter M. Lewis (Principal Financial Officer and
Principal Accounting Officer)
--------------------------- Director
Thomas N. Davidson
/s/ Guy P. French
--------------------------- Director
Guy P. French
/s/ Albert Gnat
--------------------------- Director
Albert Gnat
/s/ Richard H. Hyland
--------------------------- Director
Richard H. Hyland
/s/ Stephen M. Pustil
--------------------------- Director
Stephen M. Pustil
/s/ Francois R. Roy
--------------------------- Director
Francois R. Roy
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, the
undersigned certifies that it is the duly authorized United States
representative of MDC Corporation Inc. and has duly caused this Registration
Statement to be signed on behalf of it by the undersigned, thereunto duly
authorized, in the City of Toronto, Province of Ontario, Canada, on July 31,
2003.
ASHTON POTTER (USA) INC.
(Authorized U.S. Representative)
By: /s/ Walter Campbell
------------------------
Name: Walter Campbell
Title: Secretary
INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 Sections 4 and 6 of the Articles of Amalgamation of the
Registrant.
5.1 Opinion of Fogler, Rubinoff LLP as to the legality of the
securities being registered.
23.1 Consent of Fogler, Rubinoff LLP (included in Exhibit 5.1 to this
Registration Statement).
23.2 Consent of BDO Dunwoody LLP.
24.1 Power of Attorney (included on page 7 of this Registration
Statement).