AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 25, 2009
REGISTRATION NO. 333-157475
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MODAVOX, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 20-0122076
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(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
1900 W. UNIVERSITY DRIVE, SUITE 230, TEMPE, AZ 85281-3291
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(Address of Principal Executive Offices) (Zip Code)
ARKIN NONQUALIFIED STOCK OPTION AGREEMENT
(Full title of the plan)
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INCORPORATING SERVICES LTD.
3500 SOUTH DUPONT HIGHWAY
DOVER, DE 19901
(Name and address of agent for service)
(302) 531-0855
(Telephone number, including area code, of agent for service)
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WITH COPIES TO:
Steven P. Emerick
Quarles & Brady LLP
One Renaissance Square
Two North Central Avenue
Phoenix, Arizona 85004-2391
(602) 229-5200
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EXPLANATORY NOTE
The purpose of this post-effective amendment to the registration statement
on Form S-8 is to file the Arkin Nonqualified Stock Option Agreement as an
exhibit.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
This registration statement incorporates by reference the documents listed
below that we have previously filed with the Commission.
o Our Annual Report on Form 10-KSB for the year ended February 29,
2008;
o Our Quarterly Reports on Form 10-QSB for the quarter ended May 31,
2008 and our Quarterly Reports on Form 10-Q for the quarters ended
August 31, 2008 and November 30, 2008; and
o Our Current Reports on Form 8-K filed with the Commission on:
September 22, 2008, December 2, 2008, December 4, 2008, and January
28, 2009.
In addition, all documents filed by us with the Commission subsequent to
the filing date of this registration statement pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (other than current
reports or portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K),
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby 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 of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated herein by reference 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 subsequently filed document which also is, or is
deemed to be, incorporated by reference herein modifies or supersedes such prior
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this registration
statement except as indicated herein.
ITEM 4. DESCRIPTION OF SECURITIES.
The following summary of our common stock is subject in all respects to
the applicable provisions of the Delaware General Corporation Law, or DGCL, our
amended and restated certificate of incorporation referred to herein as our
"certificate of incorporation" and our amended and restated by-laws, referred to
herein as our "by-laws."
As of the date hereof, our authorized capital stock consists of
125,000,000 shares, of which 100,000,000 shares are common stock, par value
$0.0001 per share, and 25,000,000 shares are preferred stock, par value $0.0001
per share. As of January 15, 2009, there were 42,855,763 shares of common stock
issued and outstanding, and no shares of preferred stock issued and outstanding.
COMMON STOCK
DIVIDEND RIGHTS. Subject to the dividend rights of the holders of any
outstanding preferred stock, the holders of shares of common stock are entitled
to receive ratably dividends out of assets legally available therefor at such
times and in such amounts as our board of directors may from time to time
determine.
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RIGHTS UPON LIQUIDATION. Upon liquidation, dissolution or winding up of
our affairs, the holders of common stock are entitled to share ratably in our
assets that are legally available for distribution, after payment of all debts,
other liabilities and any liquidation preferences of outstanding preferred
stock.
CONVERSION, REDEMPTION AND PREEMPTIVE RIGHTS. Holders of our common stock
have no conversion, redemption, preemptive or similar rights.
VOTING RIGHTS. Each outstanding share of common stock is entitled to one
vote on all matters submitted to a vote of stockholders. Our amended and
restated certificate of incorporation does not provide for cumulative voting in
the election of directors.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the DGCL permits corporations to indemnify directors and
officers. The statute generally requires that to obtain indemnification the
director or officer must have acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation; and,
additionally, in criminal proceedings, that the officer or director had no
reasonable cause to believe his conduct was unlawful. In any proceeding by or in
the right of the corporation, no indemnification may be provided if the director
or officer is adjudged liable to the corporation (unless ordered by the court).
Indemnification against expenses actually and reasonably incurred by a director
or officer is required to the extent that such director or officer is successful
on the merits in the defense of the proceeding. Our Articles of Incorporation
and Bylaws provide generally for indemnification, to the fullest extent
permitted by Delaware law, of a director and officer who was or is a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that he or she is or was a director or
officer of the company or was serving at the request of the company as a
director, officer, employee or agent of certain other related entities. The
Articles of Incorporation and Bylaws provide that the indemnification will cover
all costs, charges, expenses, liabilities and losses reasonably incurred by the
director or officer. The Bylaws further provide that a director or officer has
the right to be paid expenses incurred in defending a proceeding, except the
amount of any settlement, in advance of its final disposition upon receipt by us
of an undertaking from the director or officer to repay the advances if it is
ultimately determined that he or she is not entitled to indemnification. The
Articles of Incorporation provide that a director or officer is presumed to be
entitled to indemnification and the company has the burden of proving that such
director or officer has not met the standards of conduct for permissible
indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index which is incorporated herein by reference.
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:
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(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:
(A) Paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in 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) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included
in the registration statement; and
(ii) each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5) or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii) or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
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the prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
PROVIDED, HOWEVER, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part
of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date; or
(iii) Each prospectus filed pursuant to Rule 424(b) as part of
a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date it
is first used after effectiveness. PROVIDED, HOWEVER, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such
document immediately prior to such date of first use;
(5) That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant undertakes that
in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications,
the undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be filed
pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used or
referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about the
undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and
(iv) Any other communication that is an offer in the offering
made by the undersigned registrant to the purchaser.
(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 this
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.
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(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.
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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 this post-effective amendment to 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 Tempe, State of Arizona,
on February 25, 2009.
MODAVOX, INC.
(Registrant)
By: /s/ DAVID J. IDE
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David J. Ide
Chief Executive Officer & Director
MODAVOX, INC.
EXHIBIT INDEX
TO
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8 REGISTRATION STATEMENT
EXHIBIT DESCRIPTION INCORPORATED HEREIN BY FILED
NUMBER REFERENCE TO HEREWITH
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5.1 Opinion of Quarles & Exhibit 5.1 of the
Brady LLP Company's Registration
Statement on Form S-8,
filed February 23,
2009, No. 333-157475.
10.1 Arkin Nonqualified X
Stock Option Agreement
23.1 Consent of Malone & X
Bailey, PC
23.2 Consent of Quarles & Included in Exhibit 5.1
Brady LLP
24.1 Powers of Attorney Exhibit 5.1 of the
Company's Registration
Statement on Form S-8,
filed February 23,
2009, No. 333-157475.
No. 333-157475.