As filed with the Securities and Exchange Commission on November 8, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VOICENET, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3896031
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1040 First Avenue
New York, New York 10022
(212) 572-4861
(Address of Principal Executive Office)
1998 Stock Option Plan of Voicenet, Inc.
----------------------------------------
(Full title of the plan)
FRANK CARR
Chairman and Chief Executive
Voicenet, Inc.
1040 First Avenue
New York, New York 10022
(Name and address of agent for service)
(212) 572-4861
(Telephone number, including area code, of agent for service)
Copies to:
DAVID E. FLEMING, Esq.
Cummings & Lockwood
Four Stamford Plaza
Stamford, CT 06904
(203) 327-1700
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CALCULATION OF REGISTRATION FEE
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Title of Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Securities to be Registered Price Per Share (2) Aggregate Offering Registration
Registered Price Fee (2)
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<S> <C>
Common Stock, par value 400,000
$.01 per share shares (1) $6.00 $2,400,000 $667.20
- --------------------------------------------------------------------------------------------------------------------
Total 400,000
shares $6.00 $2,400,000 $667.20
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</TABLE>
<PAGE>
(1) Consists of 400,000 shares of Common Stock of the Registrant which are
issuable upon exercise of options which have been or will be granted under the
1998 Stock Option Plan of Voicenet, Inc. This Registration Statement also covers
an indeterminate number of shares of Common Stock which may be issuable by
reason of stock splits, stock dividends or similar transactions.
(2) Calculated pursuant to Rule 457(h)(1) under the Securities Act and based
upon the closing bid price for the Registrant's publicly traded common stock on
November 5, 1999.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The documents containing the information specified in Part I of Form S-8
will be sent or given to participants as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). Such documents need
not be filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents and
the documents incorporated by reference in the Registration Statement pursuant
to Item 3 of Part It of this Form S-8, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act. See Rule
428(a)(1) under the Securities Act.
This Registration Statement on Form S-8 of Voicenet, Inc., a Delaware
corporation (the "Registrant"), covers 400,000 shares of the Registrant's Common
Stock, par value $.0l per share ("Common Stock"), reserved for issuance under
the following employee benefit plans of the Registrant (the "Plan"):
(i) 1998 Stock Option Plan of Voicenet, Inc.
If necessary for a prospectus to be used for reoffers of the Registrant's
Common Stock acquired pursuant to the Plans, a prospectus prepared in accordance
with the requirements of Form S-3 will be filed as part of this Registration
Statement by means of a post-effective amendment hereto.
PART 11
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) The Registrant's prospectus, as amended, filed on October 7, 1997 pursuant
to Rule 424(b) under the Securities Act, and all amendments thereto; and
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities and Exchange Act of 1934, as amended (the"Exchange
Act"), prior to the date hereof.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 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
<PAGE>
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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
21,000 shares of the Registrant's Common Stock are owned by a family investment
partnership in which David E. Fleming, a member of Cummings & Lockwood, is also
a partner.
Item 6. Indemnification of Directors and Officers
The Registrant's Certificate of Incorporation eliminates, to the fullest extent
permitted by the Law of the State of Delaware, personal liability of directors
to the Registrant and its stockholders for monetary damages for breach of
fiduciary duty as directors.
Section 145(a) of the Delaware General Corporation Law ("DGCL") provides in
relevant part that "a corporation may 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."
With respect to derivative actions, Section 145(b) of the DGCL provides in
relevant part that "[a] corporation may 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 or in the right of the corporation to procure a
judgment in its favor... [by reason of his service in one of the capacities
specified in the preceding sentence] against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement or such action or suit 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 except that no indemnification shall be made in respect of any
claim, issue or matter as to 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 or suit was brought shall determine
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
shall deem proper".
Article NINTH of the Company's Certificate of Incorporation, provides:
"To the full extent permitted by the Delaware General Corporation Law or
any other applicable law currently or hereafter in effect, no Director of the
Company will be personally liable to the Company or its stockholders for or with
respect to any acts or omissions in the performance of his or her duties as a
Director of the Company. Any repeal or modification of this Article Ninth will
not adversely affect any right or protection of a Director of the Company
existing prior to such repeal or modification."
Item 7. Exemption from Registration Claimed.
<PAGE>
Not Applicable.
Item 8. Exhibits.
4.1 * 1998 Stock Option Plan of Voicenet, Inc.
5.1 * Opinion of Cummings & Lockwood as to the legality of the securities
being offered.
23.1 * Consent of Marcum & Kliegmann, LLP with respect to financial
statements of the Registrant.
23.2 * Consent of Cummings & Lockwood (included in Exhibit 5. 1).
- -----------------------------
* 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 changes to such information in the
Registration Statement;
(2) That,for the purpose of determining any liability under the Securities
Act, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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 provisions of Item 6 of this
Registration Statement, 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.
<PAGE>
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,
New York, on the 8th day of November, 1999
VOICENET, INC.
By: /s/ Frank Carr
--------------------
Frank Carr
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 8th day of November, 1999.
Signature Capacity
/s/ Frank Carr
- ---------------------- Chairman & Chief November 8, 1999
Frank Carr Executive Officer
/s/ Howard Messer
- ---------------------- Chief Financial Officer November 8, 1999
Howard Messer & Secretary
/s/ Alan Dawson
- ---------------------- Director November 8, 1999
Alan Dawson
/s/ Christopher Brown
- ---------------------- Director November 8, 1999
Christopher Brown
EXHIBIT 4.1
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VOICENET, INC.
1998 Non-Qualified Stock Option Plan
1. NAME AND PURPOSE. This Plan shall be known as the Voicenet, Inc.1998
Non-Qualified Stock Option Plan (the "Plan"). The purpose of the Plan is to
advance the interests of Voicenet, Inc., a Delaware corporation (the "Company"),
and its subsidiaries, by providing incentive, through the grant of
nontransferable options to acquire common shares ("Stock Options") of the
Company and the granting of shares of the Company's common stock ("Common
Shares") subject to temporal restrictions on transfer and substantial risks of
forfeiture ("Restricted Stock"), for the continued services of key employees,
directors, consultants, and other service providers, and by attracting able
individuals to employment with, or the performance of services for, the Company
and its subsidiaries. The Plan is intended to conform to the extent necessary
with all provisions of the Securities Act of 1933, as amended (the "Securities
Act"), and the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, including without limitation Rule 16b-3. Notwithstanding
anything herein to the contrary, the Plan shall be administered, and Stock
Options shall be granted and may be exercised, only in such a manner as to
conform to such laws, rules and regulations. To the extent permitted by
applicable law, the Plan and Stock Options granted hereunder shall be deemed
amended to the extent necessary to conform to such laws, rules and regulations.
2. ADMINISTRATION. The Plan shall be administered by the Board of Directors of
the Company (the "Board") or a Committee of the Board consisting of no less two
directors (all references to the "Board" herein shall mean "Committee" if
applicable). The Board may establish, subject to the provisions of the Plan,
such rules and regulations as it deems necessary for the proper administration
of the Plan, and make such determination and take such action in connection
therewith or in relation to the Plan as it deems necessary or advisable,
consistent with the Plan.
3. ELIGIBILITY. All regular employees of the Company and individuals who perform
services for the Company shall be eligible to participate in the Plan.
4. SHARES SUBJECT TO THE PLAN.
(a) The shares to be issued and delivered by the Company upon the
exercise of stock options shall be the Company's shares of common stock, $.001
par value ("Common Shares"), which may be either authorized but unissued shares
or treasury shares.
(b) The aggregate number of Common Shares of the Company which may
be issued under the Plan shall not exceed 500,000 shares; subject, however, to
the
<PAGE>
adjustment provided in Paragraph 7 in the event of stock splits, stock
dividends, exchanges of shares or the like occurring after the effective date of
this Plan. No stock option may be granted under this Plan which could cause such
maximum limit to be exceeded.
(c) Common Shares covered by a stock option which is no longer
exercisable with respect to such shares shall again be available for issuance
under this Plan.
5. GRANT OF OPTIONS. The Board may from time to time, in its discretion and
subject to the provisions of the Plant grant options to eligible individuals
described in Paragraph 3 hereof. Individuals to whom options have been granted
are herein referred to as "Optionees." Each option shall be embodied in an
option agreement signed by the Optionee and the Company providing that the
option shall be subject to the provisions of this Plan and containing such other
provisions as the Board may prescribe not inconsistent with the Plan.
6. TERMS AND CONDITIONS OF OPTION. All options granted under the Plan shall
contain such terms and conditions as the Board from time to time determines,
subject to the foregoing and following limitations and requirements:
(a) Option prices: The option price per Common Share for any option
granted under the Plan shall be the price determined by the Board.
(b) Period within which option may be exercised: The period of each
option shall be fixed by the Board, but in no event may any option be exercised
after the expiration of ten years from the date the option is granted. The Board
may, in its discretion, determine as a condition of any option that all or a
stated percentage of the Common Shares covered by such option shall become
exercisable in installments or otherwise, only after the completion of a
specified service requirement by the Optionee.
(c) Method of exercise: An option granted under the Plan may be
exercised, in whole or in part, by submitting a written notice to the Board,
signed by the Optionee or such other person who may be entitled to exercise such
option, and specifying the number of Common Shares as to which the option is
being exercised. Such notice shall be accompanied by the payment of the full
option price for such Common Shares, which made be paid in cash (or check or
other instrument acceptable to the Board), or with the consent of the Board, in
Common Shares valued at the fair market value of such shares on the date of
exercise. In addition, any amount necessary to satisfy applicable federal, state
or local tax requirements shall be paid promptly by the Optionee upon
notification of the amount due. A certificate or certificates for the Common
Shares purchased shall be issued by the Company after the exercise of the option
and payment therefore.
The Company may make loans to an Optionee in connection with the
exercise of an option as the Board, in its sole discretion, may determine. Any
such loan shall be subject to the terms and conditions determined by the Board;
provided what no such loan shall have an initial term of more than five (5)
years. Any such loans may be renewed at the end of such fine (5) year period
with the consent of the Board.
<PAGE>
(d) Termination of option by reason of termination of employment:
Unless the Board in its discretion determines otherwise, if an Optionee's
employment with the Company terminates, all options granted under this Plan to
such Optionee which are not exercisable on the date of such termination of
employment shall immediately terminate, and any remaining options shall
terminate if not exercised before the expiration of the following periods, or at
such earlier time as may be applicable under Paragraph 6(b) above: (1) three (3)
months following such termination of employment, if such termination was not a
result of death or disability (within the meaning of Section 22(e)(3) of The
Internal Revenue Code of 1986, as amended), or (i) one (1) year following the
date of death or commencement of disability, if the Optionee was employed by the
Company at the time of death or the commencement of disability.
(e) Change in Control: Unless the Board determines otherwise, upon a
Change in Control of the Company, all options shall become immediately
exercisable. For purposes of this Plan, a Change in Control means: (i) the first
purchase of Common Shares pursuant to a tender offer or exchange offer (other
than an offer by the Company or any of its subsidiaries) for all, or any part
of, the Common Stock ("Offer"), (ii) a change in control of the Company (as
defined in this paragraph), (iii) approval by the Company's stockholders of a
merger in which the Company does not survive as an independent, publicly owned
corporation, except for a merger by the Company into its wholly owned subsidiary
corporation where the subsidiary is the surviving corporation, a consolidation,
or a sale, exchange or other disposition of all or substantially all the
Company's assets, or (iv) a change in the composition of the Board of Directors
during any period of two consecutive years such that individuals who at the
beginning of such period were members of the Board of Directors cease for any
reason to constitute at least a majority whereof, unless the election, or the
nomination for election by the Company's stockholders, of each new director was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period. A "change in control" is
deemed to occur at the time of any acquisition of voting securities of the
Company by any person or group (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), but excluding (A) the Company or any of its subsidiaries,
(B) any person who was an officer or director of the Company on the date
following adoption of the Plan by the Board of Directors of the Company or (C)
any savings, pension or other benefits plan for the benefit of employees of the
Company or any of its subsidiaries, which theretofore did not beneficially own
voting securities representing more than 30% of the voting power of any class of
outstanding voting securities of the Company, if such acquisition results in
such entity, person or group owning beneficially voting securities representing
more than 30% of the voting power of any class of outstanding voting securities
of the Company.
(f) Non-transferability: Each option and all rights thereunder shall
be exercisable during the Optionee's lifetime only by him and shall be
non-assignable and non-transferable by the Optionee except, in the event of the
Optionee's death, by will or by the laws of descent and distribution. In the
event the death of an Optionee occurs, the representative or representatives of
the Optionee's estate, or the person or persons who acquired (by bequest or
inheritance) the rights to exercise the Optionee's options in whole or in
<PAGE>
part may exercise the option prior to the expiration of the applicable exercise
period, as specified in Paragraph 6(d) above.
(g) No rights as stockholder: The Optionee shall have no rights as a
stockholder with respect to any Common Shares subject to this option prior to
the date of issuance of a certificate or certificates for such Common Shares.
(h) Compliance with securities laws: Options granted and Common
Shares issued by the Company upon exercise of options shall be granted and
issued only in full compliance with all applicable securities laws, including
laws, rules and regulations of the Securities and Exchange Commission and
applicable state Blue Sky Laws. With respect thereto, the Board may impose such
conditions on transfer, restrictions and limitations as it may deem necessary
and appropriate to assure compliance with such applicable securities laws.
(i) Modification or cancellation of options: The Board shall have
the authority to effect, at any time and from time to time, with the consent of
the affected Optionee or Optionees, the modification of the terms of any option
(subject to the limitations hereof), including the acceleration of the
exercisability of any option for any reason, or the cancellation of any or all
outstanding options granted under this Plan. In substitution for cancelled
options, the Board may grant new options (subject to the limitations hereof)
covering the same or different numbers of Common Shares at an option price per
share in all events not less than fair market value on the date of the new
grant.
(j) Restrictions on transfer: Any disposition at any time of the
Common Shares acquired pursuant to the exercise of an option by the Optionee or
legal representative shall be subject to any and all restrictions on transfer of
the Company's Common Stock as then contained in the Company's Articles of
Incorporation, or by-laws, if any.
7. SHARE ADJUSTMENTS. In the event there is any change in the Company's Common
Shares resulting from stock splits, stock dividends, combinations or exchanges
of shares, or other similar capital adjustments, equitable proportionate
adjustments shall automatically be made without further action by the Board in
(i) the number of Common Shares available for award under this Plan, (ii) the
number of Common Shares subject to options granted under this Plan, and (iii)
the option price of options granted under this Plan.
In the event of a Change in Control as defined in Paragraph 6(e) above,
the Board may, but shall not be required to, make any adjustment in respect of
outstanding options as it shall determine in its sole discretion, including but
not limited, to the acceleration of the exercisability of options, or the
cancellation of options if not exercised within a period determined by the
Board, provided what the Board shall exercise its discretion under this
paragraph on a uniform and consistent basis with respect all outstanding options
at the time of such Change in Control.
8. AMENDMENT OR TERMINATION. The Board may terminate this Plan at any time, and
may
<PAGE>
amend the Plan at any time or from time to time. If the Plan is terminated, any
unexercised option shall continue to be exercisable in accordance with its
terms, except as provided in Paragraph 7 above.
9. COMPANY RESPONSIBILITY. All expenses of this Plan, including the cost of
maintaining records, shall be borne by the Company. The Company shall have no
responsibility or liability (other than under applicable securities laws) for
any act or thing done or left undone with respect to the price, time, quantity,
or other condition and circumstances of the purchase of Common Shares under the
terms of the Plan, so long as the Company acts in good faith.
10. IMPLIED CONSENT. Every Optionee, by acceptance of an option under this Plan,
shall be deemed to have consented to be bound, on his or her own behalf and on
behalf of his or her heirs, assigns, and legal representatives, by all of the
terms and conditions of this Plan.
11. NO EFFECT ON EMPLOYMENT STATUS. The fact that an individual has been granted
an option under this Plan shall not limit or otherwise qualify the right of the
Company to terminate the individual's employment or contract at any time.
12. DURATION AND TERMINATION OF THE PLAN. The Plan shall became effective upon
its adoption by the Board of Directors, subject to approval by holders of a
majority of the outstanding shares of voting capital stock of the Company (the
"Effective Date"). No option shall be granted subsequent to the tenth
anniversary of the Effective Date, or subsequent to any earlier date as of which
the Plan is terminated pursuant to Paragraph 8 hereof.
13. RESTRICTED STOCK.
(a) The Administrator shall determine the key employees to whom, and
the time or times at which, grants of Restricted Stock will be made, the number
of shares of Restricted Stock to be granted, the price (if any) to be paid by
such employees, subject to Section 14(b)(i), the time or times within which such
Restricted Stock may be subject to forfeiture, and the other terms and
conditions of the grants in addition to those set forth in Section 13(b). The
administrator may condition the grant of Restricted Stock upon the attainment of
specified performance goals or such other factors as the Administrator may
determine in its sole discretion.
(b) Restricted Stock granted under the Plan shall contain any terms
and conditions, not inconsistent with the provisions of the Plan, which are
deemed desirable by the Administrator. A key employee who receives a grant of
Restricted Stock shall not have any rights with respect to such Grant unless and
until such key employee has executed an agreement evidencing such Grant in the
form approved from time to time by the Administrator, has delivered a fully
executed copy thereof to the Company, and has otherwise complied with the
applicable terms and conditions of such Grant. In addition, Restricted Stock
granted under the Plan shall be subject to the following terms and conditions:
(i) the purchase price for Common Shares consisting of Restricted Stock, if any,
will be specified by the Administrator; (ii) grants of Restricted Stock shall
only be accepted by executing a Restricted Stock agreement and
<PAGE>
paying in cash or by check, whatever price (if any) if required under Section
13(b)(i); (iii) each key employee granted Restrictive Stock shall be issued a
stock certificate in respect of such shares of Restricted Stock. Such
certificate shall be registered in the name of such key employee and shall bear
an appropriate legend referring to the terms, conditions, and restrictions
applicable to such Grant; (iv) any stock certificate evidencing Common Shares
consisting of Restricted Stock shall either (A) be held in custody by the
Company until the employment and other restrictions thereon shall all have
lapsed; or (B) be affixed with a legend, identifying such Shares as Restricted
Stock and expressly prohibiting the sale, transfer, tender, pledge, assignment
or encumbrance of such Shares, as the Administrator shall determine (With
respect to any Restricted Stock held in custody by the Company, the key employee
granted such Restricted Stock shall deliver to the Company's stock power,
endorsed in blank, relating to the Common Shares represented by such Stock. With
respect to an Restricted Stock held by a key employee under legend, the key
employee granted such Restricted Stock shall deliver tot he Company an
acknowledgement that such Stock remains subject to a substantial risk of
forfeiture in the event of termination of employment under certain
circumstances, and that the certificates representing ownership of such Stock
will be surrendered to the Company immediately upon any such termination of
employment); (v) Subject to the provisions of the Plan and the Restricted Stock
agreement, during a temporal period set by the Administrator and commencing with
the date of such grant (the Restriction Period), a key employee shall not be
permitted to sell, transfer, tender, pledge, assign or otherwise encumber any
Restricted Stock granted under the Plan. However, the Administrator, in its sole
discretion, may provide for the lapse of such transfer or other restrictions in
installments, or accelerate or waive such restrictions in whole or in part,
based on service, performance or other factors and criteria selected by the
Administrator; (vi) except as provided in this Section 13(b)(vi) and in Section
13(b)(v), a key employee shall have, with respect to shares of Restricted Stock
granted to him, all of the rights of a shareholder of the Company, including the
right to vote such Stock and the right to receive any dividends thereon (The
Administrator, in its sole discretion and as determined at the time of a grant
of Restricted Stock, may permit or require such dividends otherwise due and
payable to be deferred and, if the Administrator so determines, reinvested
either in additional Restricted Stock (to the extent Common Shares are
available), or otherwise. Stock dividends issued with respect to Restricted
Stock shall be treated as additional shares of Restricted Stock. As Restricted
Stock, each additional Common Shares will be subject to the same restrictions,
terms and conditions applicable to the Restricted Stock. As Restricted Stock,
each additional Common Shares will be subject to the same restrictions, terms
and conditions applicable to the Restricted Stock with respect to which such
additional Common Shares were issued; (vii) so Restricted Stock shall be
transferable by a key employee other than by will or by the laws of descent and
distribution; (viii) in the event Restricted Stock is forfeited by a key
employee, the Company will refund to such key employee any payment(s) made by
such key employee to purchase such Stock, promptly upon such forfeiture (and any
corresponding surrender of stock certificates).
(c) To ensure that Grants of Restricted Stock actually reflects the
performance of the Company and service of the key employee, the Administrator
may provide, in its sole-discretion, for a random performance-based award, or
other grant, designed to guarantee a minimum value, payable in cash or Common
Shares, to the recipient of a Restricted Stock
<PAGE>
Grant, subject to such performance, future service, deferral and other terms and
conditions as may be specified by the Administrator.
14. INVESTMENT REPRESENTATIONS, APPROVALS AND LISTINGS.
The Administrator may, if it deems appropriate, condition its grant of
any Stock Option hereunder upon receipt of the following investment
representation from the optionee and any other representation or covenant
reasonably necessary for compliance with law:
"I agree that any Common Shares of Voicenet, Inc., which I may acquire by virtue
of this Stock Option shall be acquired for investment purposes only and not with
a view to distribution or resale, and may not be transferred, sold, assigned,
pledged, hypothecated or otherwise disposed of by me unless (i) a registration
statement or post-effective amendment to a registration statement under the
Securities Act with respect to said Common Shares has become effective so as to
permit the sale or other disposition of said shares by me; or (ii) there is
presented to the Company, an opinion of counsel satisfactory to the Company and
its counsel to the effect that the sale or either proposed disposition of said
Common Shares by me may lawfully be made otherwise than pursuant to an effective
registration statement or post-effective amendment to a registration statement
relating to the said shares under the Securities Act of 1933, as amended."
15. NEW YORK LAW TO GOVERN. This Plan shall be construed and administered in
accordance with and governed by the laws of the State of New York.
OPINION OF CUMMINGS & LOCKWOOD
EXHIBIT 5.01
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October 21, 1999
Voicenet, Inc.
1040 First Avenue
New York, New York 10022
Dear Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement") to be filed by you with the Securities and
Exchange Commission (the "Commission") on or about November 8, 1999 in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 600,000 shares of your Common Stock (the "Stock"), subject to
issuance by you upon the exercise of stock options to be to be granted by you
under the 1998 Stock Option Plan of Voicenet, Inc.(the "1998 Plan").
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records,
and other instruments as we have deemed necessary or appropriate for the purpose
of rendering this opinion, including: (a) the Certificate of Incorporation of
the Company in the form filed as Exhibit 3(a) to the Company's Registration
Statement of Form SB-2 (Commission File No. ); (b) the By-Laws of
the Company in the form filed as Exhibit 3(b) to the Company's Registration
Statement of Form SB-2 (Commission File No. ); (c) the Registration
Statement; (d) resolutions adopted by the unanimous written consent of the Board
of Directors of the Company relating to the approval of the 1998 Plan, certified
by the Secretary of the Company; (e) a certificate of the Secretary of the
Company as to consent of the of the shareholders of the Company relating to the
approval of the 1998 Plan; and (f) the 1998 Plan.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons executing the same, the lack
of any undisclosed terminations, modifications, waivers or amendments to any
documents reviewed by us and the due execution and delivery of all
documentswhere due execution and delivery are prerequisites to the effectiveness
thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from records
referred to above. We have made no independent investigation or other attempt to
verify the accuracy of any of such information or to determine the existence or
non-existence of any other factual matters; however, we are not aware of any
facts that would lead us to believe that the opinion expressed herein is not
accurate.
We are admitted to practice law in the State of New York, and we express
no opinion herein with respect to the application or effect of the laws of any
jurisdiction other than the existing laws of the State of New York and the
existing Delaware General Corporation Law without reference to case law or
<PAGE>
secondary sources.
Based upon the foregoing, it is our opinion that the 600,000 shares of
Stock that may be issued and sold by you upon the exercise of stock options to
be granted under the 1998 Plan, when issued and sold in accordance with the
applicable Plan and stock option or purchase agreements to be entered into
thereunder, and in the manner referred to in the relevant Prospectus associated
with the Registration Statement, will be validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be relied
upon for any other purpose.
Very truly yours,
CUMMINGS & LOCKWOOD
EXHIBIT 23.1
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CONSENT OF MARCUM & KLIEGMAN LLP
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Voicenet, Inc.:
We consent to incorporation by reference of our report dated April 7, 1999
of the financial statements of Voicenet, Inc. for the years ended December 31,
1997 and 1998 in the Registration Statement (Form S-8).
/s/ Marcum & Kliegman LLP
MARCUM & KLIEGMAN LLP
New York, New York
November 8, 1999
