UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EZ TALK, INC.
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(Name of Small Business Issuer in its Charter)
Florida 65-0867538
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification no.)
222 Lakeview Avenue, Suite 160-217
West Palm Beach, FL 33401
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(Address of principal executive offices) (Zip Code)
Issuer's telephone number: (561) 832-5699
EZ TALK, INC.
EMPLOYEE/CONSULTANT STOCK COMPENSATION PLAN
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(Full title of the plan)
A. Rene Dervaes, Jr., President
222 Lakeview Avenue, Suite 160-217
West Palm Beach, FL 33401
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(Name, address and telephone number of agent for service)
Copies to:
Donald F. Mintmire
Mintmire & Associates
265 Sunrise Avenue, Suite 204
Palm Beach, FL 33480
(561) 832-5696
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
TITLE OF PROPOSED PROPOSED MAXIMUM AMOUNT OF
SECURITIES AMOUNT MAXIMUM AGGREGATE REGISTRATION
TO BE TO BE OFFERING OFFERING FEE (1)
REGISTERED REGISTERED PRICE PRICE
PER SHARE
- ------------ ----------- --------- --------- ------------
Common Stock 100,000 (2) .0238 $2388 $0.63
</TABLE>
$.0001 par value
(1) Estimated pursuant to Rule 457(c) and 457(h) solely for the purpose of
calculating the Registration Fee, which is based on the book value per
share of the Company's Common Stock as of 11/30/99 since there is no
current market in their stock.
(2) Represents the maximum number of shares which may be issued under the EZ
Talk, Inc. Employee/Consultant Stock Compensation Plan (the "Plan").
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents which have been heretofore filed with the
Securities and Exchange Commission (the "Commission") by the Registrant pursuant
to the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated by
reference in this Registration Statement:
(1) The Registrant's Initial Report on Form l0SB filed on June 10, 1999 as
amended on August 13, 1999, September 3, 1999 and September 16, 1999;
(2) All other reports filed by the Registrant with the Commission pursuant
to Section 13(a) or Section 15(d) of the Exchange Act since the end of
the period covered by the Form 10SB referred to above includes Form
10QSB filed on January 14, 2000 for the quarter ended November 30,
1999; and
(3) The description of the Common Stock of the Registrant contained in the
Form 10SB referred to above.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment hereto which indicates that all securities offered 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 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.
The Company's Articles of Incorporation provide that:
"The Corporation shall 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 otherwise 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
<PAGE>
be in, or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, has no reasonable cause to believe
his conduct to be unlawful. The termination of any action, suit or proceeding,
by judgment, order, settlement, conviction upon a plea of nolo contendere or its
equivalent, shall not of itself create a presumption that the person did not act
in good faith 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 reasonable cause to believe the action was unlawful."
The Florida Statutes Section 607.0850 provide that:
(1) A corporation shall have power to indemnify any person who was or
is a party to any proceeding (other than an action by, or in the right of, the
corporation), by reason of the fact that he or she 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
liability incurred in connection with such proceeding, including any appeal
thereof, if he or she acted in good faith and in a manner he or she 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 or her conduct was unlawful. The termination of any proceeding by
judgment, order, settlement, or conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation or, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
(2) A corporation shall have power to indemnify any person, who was or
is a party to any proceeding by or in the right of the corporation to procure a
judgment in its favor 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 and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof. Such
indemnification shall be authorized if such person acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification shall be made under
this subsection in respect of any claim, issue, or matter as to which such
person shall have been adjudged to be liable unless, and only to the extent
that, the court in which such proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
(3) To the extent that a director, officer, employee, or agent
of a corporation has been successful on the merits or otherwise in defense of
any proceeding referred to in subsection (1) or subsection (2), or in defense of
any claim, issue, or matter therein, he or she shall be indemnified against
expenses actually and reasonably incurred by him or her in connection therewith.
(4) Any indemnification under subsection (1) or subsection (2), unless
pursuant to a determination by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
<PAGE>
director, officer, employee, or agent is proper in the circumstances because he
or she has met the applicable standard of conduct set forth in subsection (1) or
subsection (2). Such determination shall be made:
(a) By the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such proceeding;
(b) If such a quorum is not obtainable or, even if obtainable, by majority
vote of a committee duly designated by the board of directors (in
which directors who are parties may participate) consisting solely of
two or more directors not at the time parties to the proceeding;
(c) By independent legal counsel:
1. Selected by the board of directors prescribed in paragraph (a) or
the committee prescribed in paragraph (b); or
2. If a quorum of the directors cannot be obtained for paragraph (a)
and the committee cannot be designated under paragraph (b), selected by majority
vote of the full board of directors (in which directors who are parties may
participate); or
(d) By the shareholders by a majority vote of a quorum consisting of
shareholders who were not parties to such proceeding or, if no such
quorum is obtainable, by a majority vote of shareholders who were not
parties to such proceeding.
(5) Evaluation of the reasonableness of expenses and authorization of
indemnification shall be made in the same manner as the determination that
indemnification is permissible. However, if the determination of permissibility
is made by independent legal counsel, persons specified by paragraph (4)(c)
shall evaluate the reasonableness of expenses and may authorize indemnification.
(6) Expenses incurred by an officer or director in defending a civil or
criminal proceeding may be paid by the corporation in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if he or she is ultimately found
not to be entitled to indemnification by the corporation pursuant to this
section. Expenses incurred by other employees and agents may be paid in advance
upon such terms or conditions that the board of directors deems appropriate.
(7) The indemnification and advancement of expenses provided pursuant
to this section are not exclusive, and a corporation may make any other or
further indemnification or advancement of expenses of any of its directors,
officers, employees, or agents, under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office. However, indemnification or advancement of expenses shall not be made to
or on behalf of any director, officer, employee, or agent if a judgment or other
final adjudication establishes that his or her actions, or omissions to act,
were material to the cause of action so adjudicated and constitute:
<PAGE>
(a) A violation of the criminal law, unless the director, officer,
employee, or agent had reasonable cause to believe his or her conduct
was lawful or had no reasonable cause to believe his or her conduct
was unlawful;
(b) A transaction from which the director, officer, employee, or agent
derived an improper personal benefit;
(c) In the case of a director, a circumstance under which the liability
provisions of s. 607.0834 are applicable; or
(d) Willful misconduct or a conscious disregard for the best interests of
the corporation in a proceeding by or in the right of the corporation
to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder.
(8) Indemnification and advancement of expenses as provided in this
section shall continue as, unless otherwise provided when authorized or
ratified, to a person who has ceased to be a director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors, and administrators
of such a person, unless otherwise provided when authorized or ratified.
(9) Unless the corporation's articles of incorporation provide
otherwise, notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary determination of the board or of the
shareholders in the specific case, a director, officer, employee, or agent of
the corporation who is or was a party to a proceeding may apply for
indemnification or advancement of expenses, or both, to the court conducting the
proceeding, to the circuit court, or to another court of competent jurisdiction.
On receipt of an application, the court, after giving any notice that it
considers necessary, may order indemnification and advancement of expenses,
including expenses incurred in seeking court-ordered indemnification or
advancement of expenses, if it determines that:
(a) The director, officer, employee, or agent is entitled to mandatory
indemnification under subsection (3), in which case the court shall
also order the corporation to pay the director reasonable expenses
incurred in obtaining court-ordered indemnification or advancement of
expenses;
(b) The director, officer, employee, or agent is entitled to
indemnification or advancement of expenses, or both, by virtue of the
exercise by the corporation of its power pursuant to subsection (7);
or
(c) The director, officer, employee, or agent is fairly and reasonably
entitled to indemnification or advancement of expenses, or both, in
view of all the relevant circumstances, regardless of whether such
person met the standard of conduct set forth in subsection (1),
subsection (2), or subsection (7).
(10) For purposes of this section, the term "corporation" includes,
in addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger, so that
any person who is or was a director, officer, employee, or agent of a
constituent corporation, or is or was serving at the request of a constituent
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, is in the same position
under this section with respect to the resulting or surviving corporation as he
<PAGE>
or she would have with respect to such constituent corporation if its separate
existence had continued."
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5.1 * Opinion of Mintmire & Associates
10.35 * EZ Talk, Inc. Employee/Consultant Stock Compensation Plan
23.1 * Consent of Durland & Company, CPAs, P.A.
23.2 * Consent of Mintmire & Associates (contained in the opinion filed as
Exhibit 5.1 hereof)
(* filed herewith)
Item 9. Undertakings.
The Registrant hereby undertakes:
(a) (1) to file, during any period in which it offers or sells securities, a
post effective amendment to this registration statement to include any
prospectus required by Section 10(a) (3) of the Securities Act;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, to treat each post-effective amendment as a
new registration statement of the securities offered, and the offering
of the securities at that time to be the initial bona fide offering;
(3) to remove from registration by means of a post-effective amendment any
of the securities that remain unsold at the end of the offering.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers, and controlling
persons of the small business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
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 this
counsel that 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 Act and will be governed by the final
jurisdiction of such issue.
<PAGE>
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, in the City of West Palm Beach, Florida,
on April 21, 2000.
EZ Talk, Inc.
By: /s/ A. Rene Dervaes, Jr.
-----------------------------------
A. Rene Dervaes, Jr., President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ A. Rene Dervaes, Jr. President & Director April 21, 2000
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A. Rene Dervaes, Jr.
/s/ Johanna Bonnier Secretary and Treasurer April 21, 2000
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Johanna Bonnier
EXHIBIT 5.1 and 23.2
April 21, 2000
Board of Directors
EZ Talk, Inc.
222 Lakeview Avenue, Suite 160-217
West Palm Beach, FL 33401
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 to be
filed by you with the Securities and Exchange Commission on or about April 21,
2000, in connection with the registration under the Securities Act of 1933, as
amended, of 100,000 shares of the Company's Common Stock, par value .0001
(exclusive of any securities associated therewith, the "Stock") to be sold by
you pursuant to the Company's Employee/Consultant Stock Compensation Plan. (the
"Plan").
As your counsel, we have examined the proceedings relating to and action taken
by you in connection with the adoption of the Plan.
It is our opinion that the 100,000 shares of the Stock that may be issued and
sold by the Company pursuant to the Plan, when issued and sold in the manner
provide in the Plan, will be validly issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us in the Registration
Statement and any amendments thereto. In providing this consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, or the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/ Mintmire & Associates
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MINTMIRE & ASSOCIATES
EXHIBIT 10.1
EMPLOYEE/CONSULTANT STOCK COMPENSATION PLAN
I. PURPOSE OF THE PLAN.
The purpose of this Plan is to further the growth of EZ Talk, Inc., by
allowing the Company to compensate consultants and certain other Employees who
have provided bona fide services to the Company, through the award of Common
Stock of the Company.
II. DEFINITIONS.
Whenever used in this Plan, the following terms shall have the meanings
set forth in this Section:
1. "Award" means any grant of (i) Common Stock or (ii) options or
warrants to purchase Common Stock made under this Plan.
2. "Board of Directors" means the Board of Directors of the Company.
3. "Code" means the Internal Revenue Code of 1986, as amended.
4. "Common Stock" means the Common Stock of the Company.
5. "Date of Grant" means the day the Board of Directors authorized the
grant of an Award or such later date as may be specified by the Board
of Directors as the date a particular Award will become effective.
6. "Consultant" means any person or entity (i) who has rendered or will
render bona fide services to the Company, and (ii) who, in the opinion
of the Board of Directors, are in a position to make, or who have
previously made, a significant contribution to the success of the
Company.
7. "Subsidiary" means any corporation that is a subsidiary with regard to
as that term is defined in Section 424(f) of the Code.
III. EFFECTIVE DATE OF THE PLAN.
The effective date of this Plan is January 1, 2000.
IV. ADMINISTRATION OF THE PLAN.
The Board of Directors will be responsible for the administration of
this Plan, and will grant Awards under this Plan. Subject to the express
provisions of this Plan and applicable law, the Board of Directors shall have
full authority and sole and absolute discretion to interpret this Plan, to
prescribe, amend and rescind rules and regulations relating to it, and to make
<PAGE>
all other determinations which it believes to be necessary or advisable in
administering this Plan. The determinations of the Board of Directors on the
matters referred to in this Section shall be conclusive. The Board of Directors
shall have sole and absolute discretion to amend this Plan. No member of the
Board of Directors shall be liable for any act or omission in connection with
the administration of this Plan unless it resulted from the member's willful
misconduct.
V. STOCK SUBJECT TO THE PLAN.
The maximum number of shares of Common Stock as to which Awards may be
granted under this Plan is 100,000 shares which number represents 100,000 shares
not yet issued under the Plan. The Board of Directors may increase the maximum
number of shares of Common Stock as to which Awards may be granted at such time
as it deems advisable.
II PERSONS ELIGIBLE TO RECEIVE AWARDS.
Awards may be granted only to Consultants and Employees.
II GRANTS OF AWARDS.
Except as otherwise provided herein, the Board of Directors shall have
complete discretion to determine when and to which Consultants and Employees
Awards are to be granted, and the number of shares of Common Stock as to which
Awards granted to each Consultant and Employee will relate, and the terms and
conditions upon which an Award may be issued (including, without limitation, the
date of exercisability, exercise price and term of any Award which constitutes
an option or warrant to purchase Common Stock). No grant will be made if, in the
judgment of the Board of Directors, such a grant would constitute a public
distribution within the meaning of the Securities Act of 1933, as amended (the
"Act"), or the rules and regulations promulgated thereunder.
II DELIVERY OF STOCK CERTIFICATES.
As promptly as practicable after authorizing the grant of an Award, the
Company shall deliver to the person who is the recipient of the Award, a
certificate or certificates registered in that person's name, representing the
number of shares of Common Stock that were granted. If applicable, each
certificate shall bear a legend to indicate that the Common Stock represented by
the certificate was issued in a transaction which was not registered under the
Act, and may only be sold or transferred in a transaction that is registered
under the Act or is exempt from the registration requirements of the Act.
IX. RIGHT TO CONTINUED ENGAGEMENT.
Nothing in this Plan or in the grant of an Award shall confer upon any
Consultant the right to continued engagement by the Company nor shall it
interfere with or restrict in any way the rights of the Company to discharge any
Consultant or to terminate any consulting relationship at any time.
<PAGE>
X. LAWS AND REGULATIONS.
1. The obligation of the Company to sell and deliver shares of Common
Stock on the grant of an Award under this Plan shall be subject to the
condition that counsel for the Company be satisfied that the sale and
delivery thereof will not violate the Act or any other applicable
laws, rules or regulations.
2. This Plan is intended to meet the requirements of Rule 16b-3 in order
to provide officers and directors with certain exemptions from Section
16(b) of the Securities Exchange Act of 1934, as amended.
XI. TERMINATION OF THE PLAN.
The Board of Directors may suspend or terminate this Plan at any time
or from time to time, but no such action shall adversely affect the rights of a
person granted an Award under this Plan prior to that date.
XII. DELIVERY OF PLAN.
A copy of this Plan shall be delivered to all participants, together
with a copy of the resolution or resolutions of the Board of Directors
authorizing the granting of the Award and establishing the terms, if any, of
participation.
EXHIBIT 23.1
Durland & Company
Certified Public Accountants
A Professional Association
340 Royal Palm Way, 3rd Floor
Palm Beach, FL 33480
(561) 822-9995 - FAX 822-9942
INDEPENDENT AUDITORS CONSENT
We consent to the incorporation by reference in the Registration Statement of EZ
Talk, Inc., on Form S-8 to be filed on or about April 21, 2000, with the
Securities and Exchange Commission our report dated March 25, 1999 on the
financial statements of EZ Talk, Inc., which expresses an unqualified opinion
and includes an explanatory paragraph relating to a going concern uncertainty
appearing in the Form 10SB for the period since inception, (June 10, 1998),
ended February 28, 1999.
/s/ Durland & Company, CPA's, P.A.
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Durland & Company, CPA's, P.A.
Palm Beach, Florida
April 28, 2000
