As filed with the United States Securities and Exchange Commission on May 10,
2005
Registration Statement No. 333-__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VOICE DIARY INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
73-1629948
(I.R.S. Employer Identification No.)
200 Robbins Lane, Jericho, New York 11753
(Address of Principal Executive Offices)
VOICE DIARY INC.
2005 Consultant Stock Plan
(Full title of the Plan)
Arie Hinkis
200 Robbins Lane
Jericho, New York 11753
(516) 939-0400
(Name, address, and telephone number of agent for service)
Copies to:
Hank Gracin, Esq.
Lehman & Eilen LLP
50 Charles Lindbergh Blvd., Suite 505
Uniondale, New York 11553
(516) 222-0888
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered (1) Per Share(2) Price Fee(3)
- --------------------------------------------------------------------------------------------------------------------
Class A common stock, par value
$.01 per share, under the 2005
Consultant Stock Plan 1,000,000 $0.135 $135,000 $15.89(4)
- --------------------------------------------------------------------------------------------------------------------
(1) Represents shares issuable upon exercise of options granted or
available for grant under the 2005 Consultant Stock Plan of Voice
Diary Inc., a Delaware corporation (the "Registrant"). Each option
entitles the holder to purchase one share of the registrant's common
stock, par value $.01 per share. In accordance with Rule 416, the
amount registered under this registration statement includes an
indeterminable number of shares of the registrant's common stock
that may become issuable under the anti-dilution provisions of the
plan.
(2) Estimated solely for the purpose of computing the registration fee
in accordance with Rules 457(h) and (c) under the Securities Act of
1933 (the "Act"), based on the average of the bid and asked price of
the registrant's common stock on May 6, 2005, as reported in the
over-the-counter bulletin board market.
(3) The amount of registration fee is $117.70 per million in accordance
with Section 6(b) of the Act.
(4) In accordance with Rule 457(p) under the Securities Act of 1933, the
amount of the registration fee payable hereunder has been offset by
previously paid filing fees as follows: On July 20, 2004, the
registrant registered securities on Form S-8 (Registration No.
333-117503). The total filing fee due was $15.20 and the registrant
paid $198.54, resulting in a credit of $183.34 to be used to offset
future filing fees. In connection with the filing of this
registration statement, the total filing fee of $15.89 was offset by
this credit, resulting in the registrant not being required to pay
any part of the registration fee for this filing and leaving a
remaining credit of $167.45 to be used to offset future filing fees.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We hereby
incorporate by reference our annual report on Form 10-KSB/A for the fiscal year
ended December 31, 2004 and any future filings made with the SEC under Sections
13(a), 13(c), 14 or 15(d) the Securities Exchange Act of 1934.
You may request a copy of these filings at no cost by writing or telephoning us
at the following address: Voice Diary Inc., 200 Robbins Lane, Jericho, New York
11753, tel. (516) 939-0400
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTEREST 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 he 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 him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he 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 his 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 he 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 his conduct was lawful.
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 complete action in
any of the capacities set forth above against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
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 of the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such court deems proper.
Section 145 further provides as follows:
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 him 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 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 the corporation is empowered to purchase and maintain insurance
on behalf of a director or officer against any such liability
asserted against him in any such capacity or arising out of his
status as such whether or not the corporation would have the power
to indemnify him 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 (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even through less than a quorum or (2) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion or (3) by the stockholders.
Section 8 of our certificate of incorporation provides in part as follows:
The Corporation shall indemnify any person who was, is, or is threatened
to be made a party to a proceeding (as hereinafter defined) by reason of
the fact that he or she (a) is or was a director or officer of the
Corporation or (b) while a director or officer of the Corporation, is or
was serving at the request of the Corporation as a director, officer,
partner, venturer, proprietor, trustee, employee, agent, or similar
functionary of another foreign or domestic corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan, or other
enterprise, to the fullest extent permitted under Delaware Law, as the
same exists or may hereinafter be amended. Such right shall be a contract
right and as such shall run to the benefit of any director or officer who
is to serve as a director or officer of the Corporation while this Article
8 is in effect. Any repeal or amendment of this Article 8 shall be
prospective only and shall not limit the rights to any such director or
officer or the obligations of the Corporation with respect to any claim
arising from or related to the services of such director or officer in any
of the foregoing capacities prior to any such repeal or amendment to this
Article 8.
Section 102(b)(7) of the Delaware Corporation Law provides that the Certificate
of Incorporation of a Delaware corporation may contain a provision eliminating
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) the payment of 34 unlawful dividends or the
making of unlawful stock purchases or redemptions or (iv) any transaction from
which the director derived a personal benefit.
Section 11 of our certificate of incorporation contains the following provisions
with respect to the elimination or limitation of liability of our directors:
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director except for liability (a) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (b)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) under section 174 of the
Delaware General Corporation Law, or (d) for any transaction from which
the director derived any improper personal benefit.
Our bylaws also provide indemnification provisions for the benefit of its
officers similar to those contained in our certificate of incorporation.
4
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The following exhibits are filed with this registration statement.
Exhibit Number Description
- -------------- -----------
4.1 Voice Diary Inc. 2005 Consultant Stock Plan
5.1 Opinion of Lehman & Eilen LLP
23.1 Consent of Brightman Almagor & Co.
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 information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 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 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
5
persons of the registrant, 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, as amended, 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 Jericho, New York, on May 10, 2005.
VOICE DIARY INC.
/s/ Arie Hinkis
---------------
Arie Hinkis
President and Principal Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the date indicated.
Signature Date
/s/ Arie Hinkis May 10, 2005
- ---------------------------
Arie Hinkis
President and Principal Financial Officer
/s/ Nathan Tarter May 10, 2005
- ---------------------------
Nathan Tarter
Director
6