SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FONECASH, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 22-3530573
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
90 Park Avenue, Suite 1700
New York, NY 10016
(Address of Principal Executive Offices)
Consulting Agreement of Reginald L. Clarke
(Full title of the plan)
Daniel E. Charboneau, President
90 Park Avenue, Suite 1700
New York, NY 10016
(Name and address of agent for service)
(212) 984-0641
(Telephone number, including area code, of agent for service)
Copies to:
Michael S. Krome, P.C.
8 Teak Court
Lake Grove, New York 11755
Phone: (631)737-8381
Fax: (631) 737-8382
Title of Amount to be Proposed Proposed Amount of
Securities Registered(1) Maximum Maximum Registration
to be Offering Price Aggregate Fee
Registered Per Share(2) Offering Price
- ----------- ------------- ---------------- --------------- -------------
.0001 per 800,000 $ .10 $ 80,000 $ 20.00
share
<FN>
(1) Represents 800,000 shares of Common Stock to be issued to a consultant as
compensation for services pursuant to his consulting agreement.
(2) Estimated solely for purposes of calculating the filing fees and calculated
pursuant to Rule 457(c) under the Securities Act based upon the average of
the bid and asked price as of June 27, 2001
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information specified in this Part
I will be sent or given to employees as specified by Rule 428(b)(1). Such
documents need not be filed with the Securities and Exchange Commission
("Commission") either as part of this registration statement or as prospectuses
or prospectus supplements pursuant to Rule 424. These documents and the
documents incorporated by reference in the registration statement in Item 3 of
Part II of this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
This Registration Statement on Form S-8 (the "Registration Statement") of
FoneCash, Inc., a Delaware corporation, (the "Registrant") covers 800,000 shares
of the Registrant's common stock, par value $.000l per share ("Common Stock").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(a) Registration of Securities on Form 10-SB/A filed on June 12,
2000.
(b)(I) Annual Report on Form 10-KSB filed on April 17, 2001 for the
year ended December 31, 2000.
(ii) Quarterly Report on Form 10-QSB filed on June 8, 2001 for
the quarter ended March 31, 2001.
(c) The description of securities contained in the Registrant's
Registration of Securities pursuant to Section 12(g) of the Act dated June 12,
2000
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
("Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities registered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein 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 document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
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.
2
Item 4. Description of Securities.
The Registrant's authorized capital stock consists of 20,000,000 shares of
Common Stock, $.0001 par value, of which 6,234,705 shares are issued and
outstanding and 5,000,000 shares of Preferred Stock, $.0001 par value, of which
no shares are issued and outstanding.
Subject to the rights of the holders of any series of Preferred Stock, the
holders of Common Stock are entitled to receive dividends, if any, as may be
declared from time to time by the Board of Directors in its discretion from
funds legally available therefor. Upon liquidation or dissolution of the
Registrant, the holders of Common Stock are entitled to receive a pro rata share
of all assets available for distribution to stockholders after payment of all
obligations of the Registrant including dividends and preferences attributed to
any series of Preferred Stock.
The shares of Common Stock have no cumulative voting rights or preemptive
or other subscription rights and there are no conversion rights or redemption
provisions with respect to such shares. The shares of Common Stock presently
outstanding are validly issued, fully paid and non-assessable. Authorized Common
Stock may be issued at any time and from time to time, in such amounts, and for
such consideration as may be fixed by the Board of Directors of the Registrant.
There are currently no voting, conversion and liquidation rights, nor
redemption or sinking fund provisions for the Preferred Stock.
Item 5. Interests of Named Experts and Counsel.
The Delaware General Corporation Law (the "DGCL"), in general, allows
corporations to indemnify their directors and officers against expenses actual
and reasonable in connection with a proceeding, if the person acted in good
faith and in a manner the person reasonably believed to be in, or not opposed
to, the best interests of the corporation. In the case of a criminal action or
proceeding, the director or officer must have had no reasonable cause to believe
that the person's conduct was unlawful. The DGCL also provides that
indemnification is not exclusive, and a corporation may make any other or
further indemnification under any bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, however no indemnification shall be made
in respect of any claim which such person shall have been 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 was brought shall determine that, despite the
adjudication of liability but in view of all the circumstances, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper. However, according to the certificate of incorporation a
director will be liable (i) for breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
liability under Section 174 of the DGCL, or (iv) for any transaction from which
the director derived any improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
3
Item 8. Exhibits.
Exhibit No. Description
- ------------ -----------
5.1 * Opinion of Michael S. Krome, P. C., as to the legality of the
securities being offered.
23.1 * Consent of Michael S. Krome, P. c., (included in Exhibit 5.1).
23.2 * Consent of Stewart H. Benjamin Certified Public Accountant, PC.
24.1 * Powers of Attorney (included on p. II-4 of this Registration
Statement).
99.1 * Consulting Agreement between the Registrant and Reginald L.
Clarke, dated June 14, 2001
* Filed herewith.
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 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;
(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; and (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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the 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 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 Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
4
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 New York,
NY on the 26Th day of June, 2001.
FONECASH, INC.
By:/s/ Daniel E. Charboneau
Daniel E. Charboneau, President
Signature TITLE
- ---------
/s/ Daniel E. Charboneau Chief Executive Officer,
- -------------------------------- President/Chairman
Daniel E. Charboneau
/s/ John Jiann-Shong Wu Director
- --------------------------------
John Jiann-Shong Wu
/s/ Daniel S. MacDonald Director
- --------------------------------
Daniel S. MacDonald
/s/ Michael Wong Director, Chief Financial Officer
- --------------------------------
Michael Wong
/s/ David Cheung
- --------------------------------
David Cheung
5