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 Registration
to be registered registered per share (1) Offering Price fee (2)
=================================================================================
Class A Common
Stock($.0001 par
value) 35,000,000 $0.001 $35,000 $3.22
=================================================================================
(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
February 14, 2003.
(2) iVoice has a credit of $141.22, which should be applied against the
Registration Fee.
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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 March 27, 2002 for the
year ended December 31, 2001, the Registrant's SB-2 Registration Statement filed
on January 24, 2003, and the Registrant's Quarterly Report on Form 10-QSB, filed
on November 14, 2002, for the quarter ended September 30, 2002.
(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
Not applicable.
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.
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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.
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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 mean 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.
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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
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 February 14, 2003.
iVoice, Inc.
By: /s/
----------------------------------
Jerome R. Mahoney, President and Chief
Executive Officer
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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 President, Chief February 14, 2003
Executive Officer,
Sole Director
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INDEX TO EXHIBITS
Exhibit
NO. Description
--- -----------
4.1 Agreement for consulting services by 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 Public Accountants
24.1 Power of Attorney (Contained within Signature Page)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
iVoice, Inc. on Form S-8 of our report dated February 11, 2002 (which report
expresses an unqualified opinion and includes an explanatory paragraph relating
to the Company's ability to continue as a going concern), appearing in the
Annual Report on Form 10-KSB/A of iVoice, Inc. for the year ended December 31,
2001.
MENDLOWITZ WEITSEN LLP, CPAs
/s/ Mendlowitz Weitsen, LLP
- ---------------------------------
East Brunswick, New Jersey
February 11, 2003
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Karl R. Rolls, Jr.
Attorney At Law
306-N El Norte Parkway, Suite 455
Escondido, CA 92026
john@reidrolls.com
Tel: 760-533-1710 Fax: 760-741-9122
February 10, 2003
iVoice, Inc.
750 Highway 34
Matawan, NJ 07747
Re: Opinion of Counsel - Registration Statement of iVoice on Form S-8 for
Consulting Agreement with Bruce W. Barren
Gentlemen:
I have acted as counsel for iVoice, Inc., a Delaware corporation ("Company"), in
connection with the preparation and filing of Company's Registration Statement
on Form S-8 ("Registration Statement") under the Securities Act of 1933, as
amended (the "Act"), relating to 35,000,000 shares of Company's Class A Common
Stock, at $.001 par value (the "Common Stock"), unrestricted, to be issued
forthwith as soon as practicable, as set out in the Registration Statement,
pursuant to that certain consulting agreement between Company and Bruce W.
Barren ("Consultant") proposed, dated and signed by Consultant on January 15,
2003 and approved, ratified and signed by Company's authorized agent and officer
on February 5, 2003 (the "Consulting Agreement").
The Consulting Agreement, upon a thorough review, provides for bona fide
services, consistent with the Act, which are not in connection with the offer
and sale of securities in a capital-raising transaction and do not directly or
indirectly promote or maintain a marked for Company's securities. I have made
due inquiry of Mr. Barren and no information has come to my attention to cause
me to believe the services to be provided under the Consulting Agreement differ
from the description of services therein.
I have examined and am familiar with originals or copies, certified or
otherwise, identified to my satisfaction, of such statutes, documents, corporate
records and certificates of public officials as I have deemed sufficient and
necessary for the purposes of this opinion, including, but not limited to the
following: (i) the Articles of Incorporation, as amended; (ii) the Bylaws of
Company, in effect and on file, as amended; and (iii) the record of the action
taken on February 5, 2003, a unanimous consent set out in a document entitled
"Consent of the Board of Directors" and dated February 5, 2003, in connection
with any matters covered by this opinion.
In all instances, I have assumed the authenticity of all documents submitted to
me for review in connection with this legal opinion.
This opinion is expressly limited in scope to the securities described herein
and which are to be expressly covered by the proposed Registration Statement,
and does not cover any subsequent issuances of any securities to be made in the
future pursuant to any other agreements or plans, whether presently in existence
or not. Any such transactions are required to be included in a new registration
statement or a post-effective amendment to the above-referenced Registration
Statement which will be subject to a new or revised opinion concerning the
legality of the securities then proposed to be issued.
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I consent to the filing of this opinion with the Commission as an exhibit to the
above-referenced Registration Statement, however, this opinion may not be used,
circulated, quoted, provided to third parties, or otherwise referred to for any
other purpose without first obtaining my prior written consent.
Based on the foregoing, and in reliance thereon, it is my opinion that the
proposed issue of the Class A Common Shares of Company under the Consulting
Agreement is duly authorized and, when issued in accordance with said Consulting
Agreement, Articles of Incorporation, and operative Bylaws of Company, will be
validly issued, fully paid and nonassessable.
Further, I consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/__________________________________
Karl R. Rolls, Jr.
KRR:pkd:e
cc: Bruce W. Barren, Consultant
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CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into effective the 5th
day of February, 2003 by and between Bruce W. Barren ("Consultant") and iVoice,
Inc. ("Company").
WHEREAS, Consultant is an independent contractor; and
WHEREAS, the Company desires to engage Consultant and Consultant desires to
provide specified general business consulting services not in connection with
fund raising activities to the Company on and subject to the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy
and sufficiency are acknowledged, the parties agree as follows:
1. Engagement. The Company engages Consultant and Consultant accepts the
engagement from the Company to perform new technology development for the
Company, and such other services as enumerated in Paragraph 2 herein, upon the
terms and conditions of this Agreement.
2. Scope of Engagement. Consultant agrees to devote its good faith diligent
efforts to render the following services for the Company:
(a) Screen compatible technologies using patent files and contacts with industry
sources.
(b) Evaluate compatible technologies for the Company.
(c) Facilitate meetings with patent owners or license holders of potential
technology acquisition candidates.
(d) The implementation of short-range and long-range strategic planing to
develop and enhance the Company's products and services;
(e) Develop and assist in the implementation of a marketing program to enable
the Company to broaden the markets for its services and promote the image of the
Company and its products and services;
(f) Advise the Company relative to the recruitment and employment of marketing
and sales personnel consistent with the growth of operations of the Company; (g)
The identification, evaluation, structuring, negotiating and closing of
strategic alliances.
3. Term of Engagement. This Agreement shall remain in effect for three
months from the effective date, unless terminated for cause by prior written
notice.
4. Compensation. Consultant shall be paid the following compensation:
(a) Fee. $35,000, payable in 35,000,000 shares of common stock of the Company.
The shares shall be registered, pursuant to a registration statement filed with
the Securities and Exchange Commission, fully paid, non-assessable, and freely
trade-able.
(b) Expense Reimbursement. The Company shall pay all expenses incurred by the
Consultant in the performance of its duties, provided, however, that such
expense have been pre-approved by the Company prior to their being incurred.
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5. Subcontractors. Consultant may, from time to time, engage other third parties
to assist it in the performance of its duties to the Company. In the event that
Consultant does in fact retain such subcontractors, Consultant shall be solely
responsible for any compensation due to such subcontractors. Consultant
envisions that payments to such subcontractors, if any, would take the form of
Company stock as issued pursuant to this agreement. However, whether consultant
retains such subcontractors or not, the Company shall not be obliged to pay any
money nor issue any further shares to such subcontractors other than those
shares issued to Consultant as described in section 4 (a) herein.
6. Termination. This Agreement may be terminated for cause by prior notice
given by either party.
7. Independent Contractor. Consultant is an independent contractor and not
an employee, partner, joint venturer or other representative of the Company.
Consultant shall have no right or authority to bind the Company to any agreement
or transaction. Consultant is not under the direct or indirect control of the
Company. All references in the Agreement to "Consultant" include the Consultant
and Consultant's directors, officers, employees and affiliates.
8. Indemnification. The Company shall indemnify and hold the Consultant
harmless against any and all loss, liability, claim, damage, and expense
whatsoever (including attorneys' fees) arising out of or based upon a breach by
the Company of any warranty, representation, or agreement in this Agreement.
9. Assignment. Shares issued to Consultant pursuant to this agreement shall
be assignable at will by consultant.
10. Miscellaneous.
(a) Notices. Any notice, request, demand or other communication required to
be made or which may be given to either party hereto shall be delivered by
certified U.S. Mail, postage prepaid, to that party's attention at the address
set forth below or at such other address as shall be changed from time to time
by giving notice hereunder.
(b) Entire Agreement. This document constitutes the complete and entire
consultant's agreement between the parties hereto with reference to the subject
matters hereof only. No statement or agreement, oral or written, made prior to
or at the signing hereof, and no prior course of dealing or practice by either
party shall vary or modify the written terms hereof. Any other agreements
between the parties outside the scope of this agreement shall remain in full
force and effect.
(c) Headings. The headings and captions contained in this Agreement are for
ease and convenience of reference only and shall not be deemed for any purpose
to affect the substantive meaning of the rights and duties of the parties hereto
in any way.
(d) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and there respective successors and assigns.
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(e) Counterparts. This Agreement may be executed in multiple counterparts,
each of which has the same text and each of which shall be deemed an original
for all purposes, but together they constitute one single and the same
agreement.
(f) Amendments. This Agreement may be amended only by a written document
signed by the parties and stating that the document is intended to amend this
Agreement.
(g) Applicable Law. This Agreement shall be governed by and construed in
accordance with New Jersey law.
(h) Resolution of Disputes. The parties agree to resolve all disputes
arising under or in connection with this Agreement by final and binding
arbitration, which either party may initiate 60 days after the parties have
failed to reach a mutually acceptable agreement after negotiating in good faith
to do so. The arbitration shall be conducted in accordance with the Commercial
Rules of Arbitration of the American Arbitration Association, held in Newark, NJ
(i) Additional Documents. The parties hereto shall enter into and execute
such additional agreements, understandings, documents or instruments as may be
necessary to implement the intent of this Agreement.
(j) Cumulative Remedies. The remedies of the parties as set forth herein
are cumulative and may be exercised individually or together with one or all
other remedies, and are not exclusive but instead are in addition to all other
rights and remedies available to the parties at law or in equity.
(k) Severability. If any provision of this Agreement or the application
thereof to any person or circumstances shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such
provisions to other persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
(l) Waiver. The failure of a party to enforce any provision of this
Agreement shall not constitute a waiver of such party's right to thereafter
enforce such provision or to enforce any other provision at any time.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to
be executed effective this
iVoice, Inc.
___/s/ Bruce Barren /s/ Jerry Mahoney
BY Bruce Barren BY: Jerry Mahoney
Chief Executive Officer
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