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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FONECASH, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 22-3530573
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
90 Park Avenue, Suite 1700
New York, NY 10016
(Address of Principal Executive Offices)
Consulting Agreement
(Full title of the plan)
Daniel E. Charboneau, President
90 Park Avenue, Suite 1700
New York, NY 10016
(Name and address of agent for service)
(212) 984-0641
(Telephone number, including area code, of agent for service)
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Copies to:
Jeffrey A. Rinde, Esq.
Bondy & Schloss LLP
6 East 43rd Street, 25th Floor
New York, New York 10017
Phone: (212) 661-3535
Fax: (212) 972-1677
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share Offering Price Registration Fee
---------------- ---------- --------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value 800,000 shares(1) $0.75 $ 600,000 $ 158.40(2)
$.0001 per share
TOTAL 800,000 shares $ 600,000 $ 158.40
</TABLE>
(1) Represents 800,000 shares of Common Stock to be issued to a consultant of
the Registrant upon exercise of options granted at $0.75 per share as
compensation for services rendered pursuant to his consulting agreement.
(2) Calculated pursuant to Rule 457(h)(1) under the Securities Act of 1933, as
amended (the "Securities Act") based upon the exercise price for the shares of
common stock underlying the option.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information specified in this Part
I will be sent or given to employees as specified by Rule 428(b)(1). Such
documents need not be filed with the Securities and Exchange Commission
("Commission") either as part of this registration statement or as prospectuses
or prospectus supplements pursuant to Rule 424. These documents and the
documents incorporated by reference in the registration statement in Item 3 of
Part II of this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
This Registration Statement on Form S-8 (the "Registration Statement")
of FoneCash, Inc., a Delaware corporation, (the "Registrant") covers 800,000
shares of the Registrant's common stock, par value $.0001 per share ("Common
Stock"), which are reserved for issuance upon the exercise of options
exercisable at $0.75 per share.
ITEM 1. PLAN INFORMATION
(a) General Plan Information
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The Registrant and David Marks entered into a consulting
agreement (the "Consulting Agreement Plan") the nature and purpose of which were
to compensate David Marks for corporate consulting services including utilizing
reasonable efforts to locate a licensee for the Registrant's proprietary
technology. The Consulting Agreement Plan provides, among other things, for the
issuance of two options to David Marks to purchase in the aggregate 800,000
shares of Common Stock at the exercise price of $0.75 per share (individually an
"Option", collectively the "Options"). The Options were granted in August 2000
and expire in August 2005. The first Option to purchase 450,000 shares vests
immediately. The second Option to purchase 350,000 shares vests only in the
event David Marks successfully locates a licensee acceptable to the Registrant.
The Consulting Agreement Plan is sometimes hereinafter
referred to as the "Plan", and the participant in the Consulting Agreement Plan
is sometimes hereinafter referred to as the "Participant".
The Plan is not subject to any of the provisions of the
Employee Retirement Income Security Act of 1974.
The name, address and telephone number of the Registrant are
as set forth on the facing page of this Registration Statement. Additional
information about the Plan may be obtained from the Registrant by the
Participant.
(b) Securities to be Offered
(1) Shares of Common Stock, par value $0.0001 per share
(c) Employees Who May Participate in the Plan
David Marks, a consultant (an "employee" defined by General Instruction
A.1(a) of Form S-8) to the Registrant is the only eligible participant in the
Consulting Agreement Plan.
(d) Purchase of Securities Pursuant to the Plan and Payment for
Securities Offered.
(1)&(2) The Participant in the Consulting Agreement Plan will
be issued shares of Common Stock upon the exercise of
the Options.
(3) Contributions by the Participant is not applicable.
(4) No contributions by the Registrant other than the
issuance of shares is applicable.
(5) Reports to the Participant as to the amount and
status of his account under the Plan will not be
made.
(6) The shares issuable pursuant to the Plan will be
newly issued shares of the Registrant.
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(e) There are no resale restrictions on the securities offered.
(f) The Plan is not qualified under Section 401(a) of the Internal
Revenue Code and the Participant will recognize ordinary
income at the time of the issuance of his shares measured on
the date of exercise by the difference between the aggregate
exercise price and the fair market value of the Registrant's
Common Stock which is acquired by the Participant.
(g) Investment of Funds
Not Applicable.
(h) Withdrawal from Plan; Assignment of Contract
(1) Withdrawal from Plan - Not Applicable.
(2) The Participant's interest in the Plan may not be
assigned.
(i) Forfeiture and Penalties
Unexercised and non-vested Options cancelled out. There are no
provisions for forfeiture or penalties under the Consulting
Agreement Plan.
(j) Charges and Deductions and Liens Therefore
There are no charges or deductions that may be made against
the Participant's interest in the Plan.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Registrant shall provide to the Participant, without charge,
upon written or oral request, the documents incorporated by reference in Item 3
of Part II of this Registration Statement. The Registrant shall also provide to
the Participant, without charge, upon written or oral request, all of the
documents required to be delivered to the Participant pursuant to Rule 428(b).
Any and all such requests shall be directed to the Registrant at the address set
forth on the cover page hereof. Its telephone number is (212) 984-0641.
PART II
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:
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(a) Registration of Securities on Form 10-SB/A filed on June
12, 2000.
(b)(i) Quarterly Report on Form 10-QSB/A filed on June 19,
2000 for the quarter ended March 31, 2000.
(ii) Quarterly Report on Form 10-QSB filed on August 14,
2000 for the quarter ended June 30, 2000.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 ("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 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.
The Registrant's authorized capital stock consists of 20,000,000 shares
of Common Stock, $.0001 par value, of which 3,836,338 shares are issued and
outstanding and 5,000,000 shares of Preferred Stock, $.0001 par value, of which
no shares are issued and outstanding.
Subject to the rights of the holders of any series of Preferred Stock,
the holders of Common Stock are entitled to receive dividends, if any, as may be
declared from time to time by the Board of Directors in its discretion from
funds legally available therefor. Upon liquidation or dissolution of the
Registrant, the holders of Common Stock are entitled to receive a pro rata share
of all assets available for distribution to stockholders after payment of all
obligations of the Registrant including dividends and preferences attributed to
any series of Preferred Stock. The shares of Common Stock have no cumulative
voting rights or preemptive or other subscription rights and there are no
conversion rights or redemption provisions with respect to such shares. The
shares of Common Stock presently outstanding are validly issued, fully paid and
non-assessable. Authorized Common Stock may be issued at any time and from time
to time, in such amounts, and for such consideration as may be fixed by the
Board of Directors of the Registrant.
There are currently no voting, conversion and liquidation rights, nor
redemption or sinking fund provisions for the Preferred Stock.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law (the "DGCL"), in general, allows
corporations to indemnify their directors and officers against expenses actual
and reasonable in connection with a 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. In the case of a criminal action or
proceeding, the director or officer must have had no reasonable cause to believe
that the person's conduct was unlawful. The DGCL also provides that
indemnification is not exclusive, and a corporation may make any other or
further indemnification under any bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, however no indemnification shall be made
in respect of any claim 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 was brought shall determine that, despite the
adjudication of liability but in view of all the circumstances, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper. However, according to the certificate of incorporation a
director will be liable (i) for 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) for
liability under Section 174 of the DGCL, or (iv) for any transaction from which
the director derived any improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
4.1 Specimen Common Stock Certificate
4.7 * Option issued to David Marks dated August 31, 2000.
4.8 * Option issued to David Marks dated August 31, 2000.
4.9 * Option issued to David Marks dated August 31, 2000.
5.2 * Opinion of Bondy & Schloss LLP as to the legality of the securities being offered.
23.2 * Consent of Bondy & Schloss LLP (included in Exhibit 5.1).
23.3 * Consent of Stewart H. Benjamin Certified Public Accountant, PC.
24.1 * Powers of Attorney (included on p. II-4 of this Registration Statement).
99.1 * Consulting Agreement between the Registrant and David Marks dated August 31, 2000.
</TABLE>
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* Filed herewith.
<PAGE> 7
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 change to such
information 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; and (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 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 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
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, 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, NY on the 21st day of September, 2000.
FONECASH, INC.
By:/s/ Daniel E. Charboneau
---------------------------------
Daniel E. Charboneau, President
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 21st day of September, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Daniel E. Charboneau Chief Executive Officer, President and Chairman
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Daniel E. Charboneau
/s/ John Jiann-Shong Wu Director
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John Jiann-Shong Wu
/s/ Daniel S. MacDonald Director
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Daniel S. MacDonald
/s/ Arthur Murphy Director
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Arthur Murphy
/s/ Carmine Auditore Director
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Carmine Auditore
/s/ John Gill Vice President, Chief Financial Officer
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John Gill
</TABLE>
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Daniel E. Charboneau, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) of and supplements to
this Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorney-in-fact and agent 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, to all intents and purposes and as fully
as they might or could do in person, hereby ratifying and confirming all that
such attorney-in-fact and agent, or his substitute, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Power of Attorney has been signed by the following persons in the
capacities indicated on the 21st day of September, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Daniel E. Charboneau Chief Executive Officer, President and Chairman
------------------------
Daniel E. Charboneau
/s/ John Jiann-Shong Wu Director
------------------------
John Jiann-Shong Wu
/s/ Daniel S. MacDonald Director
------------------------
Daniel S. MacDonald
/s/ Arthur Murphy Director
------------------------
Arthur Murphy
/s/ Carmine Auditore Director
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Carmine Auditore
/s/ John Gill Vice President, Chief Financial Officer
------------------------
John Gill
</TABLE>
II-4
<PAGE> 10
EXHIBIT INDEX
INDEX AND DESCRIPTION OF EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
4.1 Specimen Common Stock Certificate
4.7 * Option issued to David Marks dated August 31, 2000.
4.8 * Option issued to David Marks dated August 31, 2000.
4.9 * Option issued to David Marks dated August 31, 2000.
5.2 * Opinion of Bondy & Schloss LLP as to the legality of the securities being offered.
23.2 * Consent of Bondy & Schloss LLP (included in Exhibit 5.1).
23.3 * Consent of Stewart H. Benjamin Certified Public Accountant, PC.
24.1 * Powers of Attorney (included on p. II-4 of this Registration Statement).
99.1 * Consulting Agreement between the Registrant and David Marks dated August 31, 2000.
</TABLE>
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* Filed herewith.
