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)
New Jersey 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)
Advisory and Consulting Agreement
(Full title of plan)
Jerome R. Mahoney, President and Chief Executive Officer
iVoice, Inc.
750 Highway 34
Matawan, New Jersey 07747
(732) 441-7700
Jerry Mahoney
c/o iVoice, Inc
750 Rt.34
Matawan, NJ 07747
732 441 7700
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) 100,000,000 $0.0005 $50,000 $5.22
=================================================================================
(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
July 30, 2003.
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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 28, 2003 for the
year ended December 31, 2002, and the Registrant's Quarterly Report on Form
10-QSB, filed on May 12, 2003, for the quarter ended March 31, 2003.
(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
General Corporation Law of the State of New Jersey empowers a New Jersey
corporation to indemnify any person who was or is a party or is threatened to be
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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, the corporation is empowered 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.
It is further provided that a New Jersey 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 shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; that indemnification
provided for 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. A New Jersey 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,
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(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 New Jersey, as presently or hereafter in
effect.
Additionally, as permitted by the General Corporation Law of the State of
New Jersey, 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 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 Christopher Benz
5.1 Opinion of Counsel regarding the legality of the securities
registered hereunder.
23.1 Consent of Peter A. Benz (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
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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.
(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 July 30, 2003.
iVoice, Inc.
By: /s/ Jerome R. Mahoney
----------------------------------
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 July 30, 2003
Executive Officer,
Sole Director
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INDEX TO EXHIBITS
Exhibit
NO. Description
--- -----------
4.1 Agreement for consulting services by Christopher Benz
5.1 Opinion of Counsel regarding the legality of the
securities registered hereunder.
23.1 Consent of Peter A. Benz (contained in Exhibit 5.1)
23.2 Consent of Independent Public Accountants
24.1 Power of Attorney (Contained within Signature Page)
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Peter A. Benz, Esq.
A Professional Corporation
69 Ironia Road
Mendham, NJ 07945
July 30, 2003
iVoice, Inc.
750 Highway 34
Matawan, NJ 07747
Re: Opinion of Counsel - Registration Statement of iVoice on Form S-8
Gentlemen:
I have acted as counsel for iVoice, Inc., a New Jersey 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 100,000,000 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.
I have examined the Certificate of Incorporation, as amended, and the By-Laws of
the company and all amendments thereto, the Registration Statement and
originals, or copies certified to my satisfaction, of such records and meetings,
written actions in lieu of meetings, or resolutions adopted at meetings, of the
directors of the Company, and such other documents and instruments as in my
judgement are necessary or appropriate to enable me to render the opinions
expressed below.
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.
Based on the foregoing examination, I am of the opinion that the shares of
Common Stock issuable with the Plan are duly authorized and, when issued in
accordance with the Plan, 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/ Peter A. Benz
--------------------
Peter A. Benz, Esq.
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CONSULTING AGREEMENT
This Consulting Agreement (the "Consulting Agreement") made as of July
15, 2003, by and between Christopher J. Benz ("Consultant") whose address is 29
Beacon Hill Drive, Chester, NJ 07930 and iVoice.com, Inc. (the "Company") with
offices at 750 Highway 34 Ave., Matawan, NJ 07747.
WITNESSETH
WHEREAS, the Company designs, manufactures and markets innovative voice and
computer telephony communications systems for businesses and corporate
departments and desires to expand its business or seek acquisitions of other
businesses; and
WHEREAS, the Company requires and will continue to require consulting
services relating management, strategic planning and marketing in connection
with its business; and
WHEREAS, Consultant can provide the Company with strategic planning and
marketing consulting services and is desirous of performing such services for
the Company; and
WHEREAS, the Company wishes to induce Consultant to provide these
consulting services to the Company,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
stated, it is agreed as follows:
1. APPOINTMENT.
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate on October 31, 2003, unless earlier terminated in
accordance with paragraph 7 herein or extended as agreed to between the parties.
3. SERVICES.
During the term of this Agreement, Consultant shall provide advice to
undertake for and consult with the Company concerning management, marketing,
consulting, strategic planning, corporate organization and structure, financial
matters in connection with the operation of the businesses of the Company,
expansion of services, acquisitions and business opportunities, and shall review
and advise the Company regarding its overall progress, needs and condition.
Consultant agrees to provide on a timely basis the following enumerated services
plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic planning to
9
fully develop and enhance the Company's assets, resources, products and
services;
(b) 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;
(c) Advise the Company relative to the recruitment and
employment of key executives consistent with the expansion of
operations of the Company;
(d) The identification, evaluation, structuring, negotiating
and closing of joint ventures, strategic alliances, business
acquisitions and advice with regard to the ongoing managing
and operating of such acquisitions upon consummation thereof;
and
(e) Advice and recommendations regarding corporate financing
including the structure, terms and content of bank loans,
institutional loans, private debt funding, mezzanine
financing, blind pool financing and other preferred and common
stock equity private or public financing.
4. DUTIES OF THE COMPANY.
The Company shall provide Consultant, on a regular and timely basis,
with all approved data and information about it, its subsidiaries, its
management, its products and services and its operations as shall be reasonably
requested by Consultant, and shall advise Consultant of any facts which would
affect the accuracy of any data and information previously supplied pursuant to
this paragraph. The Company shall promptly supply Consultant with full and
complete copies of all financial reports, all fillings with all federal and
state securities agencies; with full and complete copies of all stockholder
reports; with all data and information supplied by any financial analyst, and
with all brochures or other sales materials relating to its products or
services.
5. COMPENSATION.
The Company will immediately grant Consultant or his designee
100,000,000 freely traded Class A Shares of the Company's Common Stock.
6. REPRESENTATION AND INDEMNIFICATION.
The Company shall be deemed to have been made a continuing
representation of the accuracy of any and all facts, material information and
data which it supplies to Consultant and acknowledges its awareness that
Consultant will rely on such continuing representation in disseminating such
information and otherwise performing its advisory functions. Consultant in the
absence of notice in writing from the Company, will rely on the continuing
accuracy of material, information and data supplied by the Company. Consultant
represents that he has knowledge of and is experienced in providing the
aforementioned services.
7. MISCELLANEOUS.
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Termination: This Agreement shall be terminated immediately upon
written notice for material breach of this Agreement.
Modification: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in writing signed by both Parties.
Notices: Any notice required or permitted to be given hereunder shall
be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or to such
other address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
Waiver: Any waiver by either Party of a breach of any provision of this
Consulting Agreement shall not operate as or be construed to be a waiver of any
other breach of that provision or of any breach of any other provision of this
Consulting Agreement. The failure of a Party to insist upon strict adherence to
any term of this Consulting Agreement on one or more occasions will not be
considered a waiver or deprive that Party of the right thereafter to insist upon
adherence to that term of any other term of this Consulting Agreement.
Assignment: The Shares under this Agreement are assignable at the
discretion of the Consultant.
Severability: If any provision of this Consulting Agreement is invalid,
illegal, or unenforceable, the balance of this Consulting Agreement shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
Disagreements: Any dispute or other disagreement arising from or out of
this Consulting Agreement shall be submitted to arbitration under the rules of
the American Arbitration Association and the decision of the arbiter(s) shall be
enforceable in any court having jurisdiction thereof. Arbitration shall occur
only in Los Angeles, CA. The interpretation and the enforcement of this
Agreement shall be governed by California Law as applied to residents of the
State of California relating to contracts executed in and to be performed solely
within the State of California. In the event any dispute is arbitrated, the
prevailing Party (as determined by the arbiter(s)) shall be entitled to recover
that Party's reasonable attorney's fees incurred (as determined by the
arbiter(s)).
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
iVoice.com, Inc. CONSULTANT
/s/ Jerome Mahoney /s/ Christopher J. Benz
- ------------------------ -----------------------
Jerome Mahoney, Chairman Christopher J. Benz
Mendlowitz Weitsen, LLP, CPAs
K2 Brier Hill Court, East Brunswick, NJ 08816-3341
Tel: 732.613.9700 Fax: 732.613.9705 E-mail: mw@MWLLP.com
www.mwllp.com
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of iVoice, Inc. on Form S-8 dated July 30, 2003, of our report dated
February 27, 2003 (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 of iVoice, Inc. for the
year ended December 31, 2002.
MENDLOWITZ WEITSEN, LLP
East Brunswick, New Jersey
July 31, 2003