SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
iVoice, Inc.
(Exact name of registrant as specified in its charter)
Delaware 52-1750786
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
750 Highway 34
Matawan, New Jersey 07747
(732) 441-7700
(Address of principal executive offices)
Individual Plan for Bruce Barren
(Full title of plan)
Jerome R. Mahoney, President and Chief Executive Officer
iVoice, Inc.
750 Highway 34
Matawan, New Jersey 07747
(732) 441-7700
The Company Corporation
1013 Centre Road
Wilmington, DE 19805
(Name and address of agent for service)
(302) 636-5440
(Telephone number, including area code of agent for service)
CALCULATION OF REGISTRATION FEE
=============================================================================
Title of Proposed maximum Proposed maximum Amount of
securities Amount to be offering price Aggregate offering Registration
to be registered registered per share Price fee
=============================================================================
Class A Common
Stock($.001 par
value)<1> 10,000,000 $0.065 $650,000 $162.50
Class A Common
Stock($.001 par
value)<2> 18,000,000 $0.055 $990,000 $247.50
=============================================================================
[FN]
<1>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 1993, based upon the average high and
low prices on August 30, 2001.
<2>For the shares underlying the warrants, based upon the maximum exercise
price of the warrants, which is $0.055 per share.
</FN>
PART I
INFORMATION REQUIRED IN THIS SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part 1 to be contained in the Section
10(a) prospectus is omitted from the registration statement in
accordance with Rule 428 under the Securities Act of 1933 and the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by iVoice, Inc.(the "Company") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference herein:
(a) The Registrant's amended Form 10-KSB filed on May 1, 2001 for the
year ended December 31, 2000, the Registrant's SB-2 Registration Statement filed
on July 25, 2001, and the Registrant's Quarterly Report on Form 10-QSB, filed on
August 10, 2001, for the quarter ended June 30, 2001.
(b) all other reports filed by the Company pursuant to Section 13(a)
or Section 15 (d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the document
referred to in (a), above; and
(c) any document filed by the Company with the Commission pursuant to
Sections 13(a), 13( c), 14 or 15(d) of the Securities Exchange Act of 1934
subsequent to the date hereof, but prior to the filing of a post-effective
amendment to this Registration Statement which Indicates that all shares of
Common Stock registered hereunder have been sold or that de-registers all
such shares of Common Stock then remaining unsold, such documents being
deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents.
Item 4. Description of Securities
Pursuant to our certificate of incorporation, as amended, the Company
is authorized to issue 600,000,000 shares of Class A common stock, par
value $0.001 per share.
Class A Common Stock
Each holder of our Class A common stock is entitled to one vote for
each share held of record. Holders of our Class A common stock have no
preemptive, subscription, conversion, or redemption rights. Upon
liquidation, dissolution or winding-up, the holders of Class A common
stock are entitled to receive our net assets pro rata. Each holder of
Class A common stock is entitled to receive ratably any dividends declared
by our board of directors out of funds legally available for the payment
of dividends. We have not paid any dividends on our common stock and do
not contemplate doing so in the foreseeable future. We anticipate that any
earnings generated from operations will be used to finance our growth.
A total of 113,421,548 shares of Class A common stock were issued and
outstanding as of June 30, 2001.
There are no cumulative voting rights with respect to election of
directors, so holders of more than 50% of the outstanding shares of Class A
common stock can elect all of the directors if they choose to do so.
Warrants
As of June 30, 2001, we had outstanding, to persons other than employees,
warrants to purchase 6,308,260 shares of our Class A common stock. These
warrants have exercise prices ranging from $0.0583 per share to $2.00 per
share. These warrants will expire at various times between January 1, 2001
and May 1, 2006.
Subsequently, in accordance with the Consulting Agreement between the
Company and Bruce Barren, dated August 17, 2001, with respect to the
warrants to purchase 18,000,000 Class A common shares of iVoice, Inc. issued
thereunder, at the exercise price specified therein, consultant has indicated
his intention to exercise such warrants at the earliest practical time
consistent with law and the terms of said contract.
The total number of shares of the Class A common stock of iVoice, Inc.
to be registered is 28,000,000.
Statutory Provisions Under Delaware General Corporation Law
Section 203 of the Delaware General Corporation Law provides, in general,
that a stockholder acquiring more than 15% of the outstanding voting shares of
a publicly-held Delaware corporation subject to the statute (an "interested
stockholder") may not engage in certain "business combinations" with the
corporation for a period of three years, subsequent to the date on which the
stockholder became an interested stockholder unless (i) prior to such date
the corporation's board of directors approved either the business combination
or the transaction in which the stockholder became an interested stockholder,
or (ii) upon consummation of the business combination, the interested
stockholder owns 85% or more of the outstanding voting stock of the corporation
(excluding shares owned by directors who are also officers of the corporation
or shares held by employee stock option plans that do not provide employees
with the right to determine confidentially whether shares held subject to the
plan will be tendered in a tender or exchange offer), or (iii) the business
combination is approved by the corporation's board of directors and authorized
at an annual or special meeting of stockholders, and not by written consent, by
the affirmative vote of at least two-thirds of the outstanding voting stock of
the corporation not owned by the interested stockholder.
Section 203 defines the term "business combination" to encompass a wide
variety of transactions with or caused by an interested stockholder in which
the interested stockholder receives or could receive a benefit on other than a
pro rata basis with other stockholders, including mergers, certain asset sales,
certain issuances of additional shares to the interested stockholder or
transactions in which the interested stockholder receives certain other
benefits.
These provisions could have the effect of delaying, deferring or preventing
a change of control. Our stockholders, by adopting an amendment to our
certificate of incorporation or bylaws, may elect not to be governed by Section
203, effective twelve months after adoption. Neither our certificate of
incorporation nor our bylaws currently exclude us from the restrictions imposed
by Section 203.
The Delaware General Corporation Law permits a corporation, through its
certificate of incorporation, to eliminate the personal liability of its
directors to the corporation or its stockholders for monetary damages for
breach of fiduciary duty of loyalty and care as a director with certain
exceptions. The exceptions include a breach of the director's duty of loyalty,
acts or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, and improper personal benefit. Our certificate of
incorporation exonerates our directors from monetary liability to the fullest
extent permitted by this statutory provision.
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 the 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 the person in connection with such action, suit or 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, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
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 the person did
not act in good faith and in a manner which the 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 the
person's conduct was unlawful.
In the case of an action or suit by or in the right of the corporation to
procure a judgment in its favor, 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 or suit by reason of the fact that the
person is or was acting in any of the capacities set forth above against
expenses (including attorneys' fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action or suit 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, 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 which the Court of
Chancery or such other court deems proper.
Section 145 further provides 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;
that indemnification provided for by Section 145 shall not be deemed exclusive
of any other rights to which the indemnified party may be entitled; 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 empowers the corporation to
purchase and maintain insurance on behalf of a director or officer against any
liability asserted against him or her and incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such 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
or she 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, even though
less than a quorum, (ii) if there are no such directors or if such directors so
direct, by independent legal counsel in a written opinion or (iii) by the
stockholders.
Article V of the Company's By-laws provides for indemnification of
directors and officers of the Company to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as presently or hereafter in
effect.
Additionally, as permitted by the General Corporation Law of the State of
Delaware, Article VIII of the Company's Certificate of Incorporation provides
that no director of the Company shall incur personal liability to the Company or
its stockholders for monetary damages for breach of his or her fiduciary duty as
a director; provided, however, that this provision does not eliminate or limit
the liability of a director for (i) any breach of the director's duty of loyalty
to the Company or its stockholders; (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii) the
unlawful payment of dividends or unlawful purchase or redemption of stock under
Section 174 of the General Corporation Law of the State of Delaware or (iv) any
transaction from which the director derived an improper personal benefit.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
NO. Description
--- -----------
4.1 Consulting Agreement Bruce Barren
5.1 Opinion of Counsel regarding the legality of the
securities registered hereunder.
23.1 Consent of Karl R. Rolls (contained in Exhibit 5.1)
23.2 Consent of Independent Auditors.
24.1 Power of Attorney (Contained within Signature Page)
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 1933:
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this
Registration Statement:
(iii) 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;
provided, however, that paragraph (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15 (d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendments 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 hereunder that remain unsold
at the termination of the offering.
(b) The undersigned Company hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of
the company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities and 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 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 Company pursuant to the above-described
provisions, or otherwise, the Company has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 of 1933 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 Matawan, State of New Jersey, on
August 28, 2001.
IVoice, Inc.
By: /s/ JEROME R. MAHONEY
----------------------------------
Jerome R. Mahoney, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
Below, being the sole Director of the company, constitutes and appoints
Jerome R. Mahoney acting individually as his attorney-in-fact, with full
power of substitution and resubstitution, for him in any and all capacities,
to sign any and all amendments to this Registration Statement, and to file
the same, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact, 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 the following person in the
capacity and on the date indicated.
Signature Title Date
- ---------- ----- ----
/s/ JEROME R. MAHONEY
- ---------------------
Jerome R. Mahoney President, Chief August 28, 2001
Executive Officer, Sole Director
INDEX TO EXHIBITS
Exhibit
NO. Description
--- -----------
4.1 Consulting Agreement for Bruce Barren
5.1 Opinion of Counsel regarding the legality of the
securities registered hereunder.
23.1 Consent of Karl R. Rolls (contained in Exhibit 5.1)
23.2 Consent of Independent Auditors
24.1 Power of Attorney (Contained within Signature Page)