As filed with the Securities and Exchange Commission on December 27, 1999
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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
________________________
ITXC CORP.
(Exact name of registrant as specified in its charter)
Delaware 22-35-31960
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
600 College Road East, Princeton, New Jersey 08540
(Address of principal executive offices; zip code)
________________________
ITXC Corp. 1998 Stock Incentive Plan
(Full title of the plan)
Edward B. Jordan
Executive Vice President and Chief Financial Officer
ITXC Corp.
600 College Road East, Princeton, New Jersey 08540
(609) 419-1500
(Name, address and telephone number,
including area code, of agent for service)
Copy to:
Peter H. Ehrenberg, Esq.
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, New Jersey 07068
(973) 597-2500
________________________
<TABLE>
Calculation of Registration Fee
- -------------------------- ---------------------- ----------------------- ----------------------- ---------------------
Proposed Proposed
Title of Securities Amount to be Maximum Offering Maximum Aggregate Amount of
to be Registered Registered Price per Share (2) Offering Price (2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value
$0.001 per share 7,700,000 shares(1) $32.625 $251,212,500 $66,321
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</TABLE>
(1) Plus such additional shares of Common Stock as may be issuable pursuant to
the anti-dilution provisions of the Registrant's Stock Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) of the Securities Act of 1933 on the basis of
the average of the high and low sale prices for a share of Common Stock on the
National Market System of NASDAQ on December 22, 1999.
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<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The SEC allows us to "incorporate" into this Registration Statement
information we file with it in other documents. This means that we can disclose
important information to you by referring to other documents that contain that
information. The information incorporated by reference is considered to be part
of this Registration Statement, and information we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
the documents listed below, except to the extent information in those documents
is different from the information contained in this Registration Statement, and
all future documents filed with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 until we terminate the offering of these
shares:
(a) Our prospectus relating to our initial public offering, dated
September 27, 1999;
(b) Our Quarterly Report on Form 10-Q for the quarter ended September
30, 1999; and
(c) The description of our Common Stock set forth in the Registration
Statement on Form 8-A filed by the Company with the SEC pursuant to Section 12
of the Exchange Act and declared effective by the SEC on September 27, 1999 .
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law (DGCL), a
corporation has the power to indemnify directors and officers under certain
prescribed circumstances and subject to certain limitations against certain
costs and expenses, including attorneys' fees actually and reasonably incurred
in connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which any of them is a party by reason of
his being a director or officer of the corporation if it is determined that he
acted in good faith and in a manner he believed to be in (or not opposed to) the
interests of the corporation, and, in the case of a criminal proceeding, he had
no reason to believe his conduct was unlawful. Our certificate of incorporation
provides that we will 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 by reason of the fact that he is or was a director or officer
of ITXC, or is or was serving at our request as a director, officer, employee,
manager or agent of another entity, against certain liabilities, costs and
<PAGE>
expenses. It further permits us to maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of ITXC, or is or was
serving at our request as a director, officer, employee or agent of another
entity against any liability asserted against such person and incurred by such
person in any such capacity or arising out of his status as such, whether or not
we would have the power to indemnify such person against such liability under
the DGCL.
Section 102(b)(7) of the DGCL permits a corporation, in its
certificate of incorporation, to limit or eliminate, subject to certain
statutory limitations, the personal liability of directors to the corporation or
its stockholders for monetary damages for breaches of fiduciary duty, as a
director except for liability (a) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (b) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the DGCL, or (d) for any transaction from which
the director derived an improper personal benefit. Article NINTH of our
Certificate of Incorporation contains the following provision regarding
limitation of liability of our directors and officers:
"No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware, or (iv) for
any transaction from which the director derived an
improper personal benefit."
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibits accompanying this Registration Statement are listed on
the accompanying Exhibit Index.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any acts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
<PAGE>
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, 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
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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.
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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 Princeton, State of New Jersey, on the 27th day of
December, 1999.
ITXC CORP.
By: /s/ Edward B. Jordan
Edward B. Jordan,
Executive Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 27th day of December, 1999.
Signature Title
/s/ Tom Evslin* Chairman, President and
__________________________________________ Chief Executive Officer
Tom Evslin
/s/ John G. Musci* Director
__________________________________________
John G. Musci
/s/ Edward B. Jordan Chief Financial and Accounting
__________________________________________ Officer and Director
Edward B. Jordan
Director
_________________________________________
William P. Collatos
Director
_________________________________________
Elon A. Ganor
/s/ Frederick R. Wilson* Director
_________________________________________
Frederick R. Wilson
*By: /s/ Edward B. Jordan _
Edward B. Jordan, Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
4.1 The Registrant's Third Restated Certificate of
Incorporation is incorporated by reference to Exhibit
4.1 to the Registrant's Registration Statement on
Form S-8 (No. 333-88375).
4.2 The Registrant's By-Laws are incorporated by reference
to Exhibit 4.2 to the Registrant's Registration Statement
on Form S-8 (No. 333-88375).
5.1 Opinion of Lowenstein Sandler PC.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Lowenstein Sandler PC is included in
Exhibit 5.1.
24.1 Power of Attorney.
<PAGE>
Exhibit 5.1
December 27, 1999
ITXC Corp.
600 College Road East
Princeton, New Jersey 08540
Dear Sirs:
In connection with the pending registration under the Securities Act of 1933, as
amended (the "Act"), of 7,700,000 shares of common stock of ITXC Corp., a
Delaware corporation (the "Company"), offered for sale pursuant to the Company's
1998 Stock Incentive Plan (the "Shares"), we have examined such corporate
records, certificates and other documents and such questions of law as we have
considered necessary or appropriate for the purposes of this opinion. On the
basis of such examination, we advise you that, when the Company's Registration
Statement on Form S-8 relating to such Shares has become effective under the Act
and the Shares have been issued and sold as contemplated by such Plan, the
Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to such
Registration Statement.
Very truly yours,
LOWENSTEIN SANDLER PC
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the ITXC Corp. 1998 Stock Incentive Plan of our
report, dated February 3, 1999 (except for paragraphs 9 to 12 of Note 9 and Note
13, as to which the date is September 20, 1999) with respect to the consolidated
financial statements of ITXC Corp. included in its Registration Statement (Form
S-1 No. 333-80411) dated September 27, 1999, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
MetroPark, New Jersey
December 23, 1999
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Exhibit 24.1
POWER OF ATTORNEY
WHEREAS, the undersigned officers and directors of ITXC Corp. desire
to authorize Tom I. Evslin, John G. Musci and Edward B. Jordan to act as their
attorneys-in-fact and agents, for the purpose of executing and filing a
registration statement on Form S-8, including all amendments thereto,
NOW, THEREFORE,
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Tom I. Evslin, John G. Musci and Edward
B. Jordan , and each of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, to sign a Registration
Statement on Form S-8 registering up to 7,700,000 shares of the Common Stock of
ITXC Corp. issuable pursuant to the ITXC Corp. Stock Incentive Plan, including
any and all amendments and supplements thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this power of
attorney in the following capacities as of the 23rd day of December, 1999.
Signature Title
/s/ Tom Evslin Chairman, President and
_____________________________________________ Chief Executive Officer
Tom Evslin
/s/ John G. Musci Director
_____________________________________________
John G. Musci
/s/ Edward B. Jordan Chief Financial and Accounting
_____________________________________________ Officer and Director
Edward B. Jordan
Director
_____________________________________________
William P. Collatos
Director
_____________________________________________
Elon A. Ganor
/s/ Frederick R. Wilson Director
_____________________________________________
Frederick R. Wilson
