<PAGE>
As filed with the Securities and Exchange Commission on September 13, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------------
VOICE MOBILITY INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
NEVADA 33-0777819
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
----------------------------------------
#180 - 13777 Commerce Parkway,
Richmond, British Columbia,
Canada V6V 2X3
(Address, including zip code, of registrant's principal executive offices)
----------------------------------------
VOICE MOBILITY INTERNATIONAL, INC.
1999 STOCK OPTION PLAN
(Full Title of the Plan)
James J. Hutton, Chief Executive Officer
Voice Mobility International, Inc.
#180 - 13777 Commerce Parkway,
Richmond, British Columbia,
Canada V6V 2X3
(604) 482-1245
(Name, address, and telephone number, including area code, of agent for service)
WITH A COPY TO:
John M. Iino, Esq.
Brand Farrar & Buxbaum LLP
515 South Flower Street, Suite 3500
Los Angeles, California 90071-2201
(213) 228-0288
----------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------
Proposed
Proposed Maximum
Title of Securities Amount To Be Maximum Offering Aggregate Offering Amount of
To Be Registered Registered Price Per Share Price Registration Fee
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 10,000,000(1)(2) $5.20(3) $52,000,000(1) $13,728.00(1)
------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) On April 11, 2000, the Registrant filed a registration statement on
Form S-8 to register the issuance of 5,000,000 shares of Common Stock
pursuant to its 1999 Stock Option Plan (the "Plan"), Registration Nos.
333-34564 (the "Original Form S-8"). There currently are 4,571,185
shares registered for issuance under the Original Form S-8 that have
not been issued (the
<PAGE>
"Unissued Shares"). The Registrant paid fees totaling $10,612.80 to
register the Unissued Shares under the Original Form S-8. Pursuant to
General Instruction E to Form S-8 and to Rule 429(b), the Unissued
Shares are being carried forward from such earlier registration
statement and, accordingly, the Registrant has offset the registration
fee to be paid herewith by the fees that were paid by the Registrant on
April 11, 2000.
(2) An undetermined number of additional shares may be issued if the
anti-dilution adjustment provisions of the Plan become operational.
(3) The price of $5.20 per share, which is the average of the bid and asked
prices of the Common Stock as reported on the OTC Bulletin Board on
September 12, 2000 is set forth solely for purposes of calculating the
filing fee pursuant to Rule 457(c) and (h).
<PAGE>
EXPLANATORY NOTE
This Form S-8 is filed with the Securities and Exchange Commission
(the "Commission") pursuant to General Instruction E to Form S-8.
The Form S-8 filed with the Commission on April 11, 2000 by the
Registrant, Registration Number 333-34564, is hereby incorporated by reference
into this Form S-8.
The Registrant hereby registers an additional 5,000,000 shares of the
Registrant's Common Stock for issuance pursuant to its 1999 Stock Option Plan,
as amended.
1
<PAGE>
REOFFER PROSPECTUS
VOICE MOBILITY INTERNATIONAL, INC.
1,980,000 SHARES OF COMMON STOCK
Messrs. Randy G. Buchamer, W. Colin Corey, F. David D. Scott, David
Grinstead, Morgan P. Sturdy, William E. Krebs, James J. Hutton, Thomas G.
O'Flaherty and James Hewett may offer and sell up to 1,980,000 shares of
common stock of Voice Mobility International, Inc. We will issue the shares
to these selling shareholders upon their exercise of options granted to them
under our 1999 Stock Option Plan. The number of shares that may be sold
pursuant to this prospectus may change as a result of stock splits, stock
dividends or similar transactions involving the shares. We will not receive
any of the proceeds from any sales of these shares by the selling
shareholders. However, we will pay the expenses associated with the
preparation and filing of the registration statement containing this
prospectus. The selling shareholders will pay any other costs associated with
the sale of shares pursuant to this prospectus.
Investing in our common stock involves risks. You should consider
carefully the risk factors beginning on page 4.
Our common stock is listed on the Over-the-Counter Bulletin Board
under the symbol "VMII."
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these securities or
determined that this prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
The date of this prospectus is September 13, 2000.
2
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Risk Factors....................................................... 4
Forward-Looking Statements......................................... 7
Where You Can Find More Information................................ 7
Voice Mobility International, Inc.................................. 8
Price Range of Shares.............................................. 8
Use of Proceeds.................................................... 8
Selling Shareholders............................................... 8
Plan of Distribution............................................... 9
</TABLE>
3
<PAGE>
RISK FACTORS
The following risks and uncertainties could affect our operating
results and financial condition and could cause our actual results to differ
materially from our historical results.
RISKS RELATED TO US
WE WILL NEED TO RAISE ADDITIONAL CAPITAL, WHICH MAY NOT BE AVAILABLE
ON REASONABLE TERMS AND MAY DILUTE THE HOLDINGS OF OUR EXISTING SHAREHOLDERS
We did not record any significant sales revenue for the six-month
period ended June 30, 2000. In addition, we anticipate our cash outflows will
continue to exceed our cash inflows over the next twelve months. Our liquidity
over the next twelve months is contingent on our raising money through equity
and/or debt financings to meet our short-term needs. We will need to raise
additional capital either through the sale of equity or debt securities in
public or private financings or through strategic partnerships in order fully
to market and upgrade our products. We can offer no assurance that funds will
be raised when we require them or that we can raise funds on suitable terms,
nor can we offer any assurance that holders of our warrants will exercise
them. In addition, should we be able to obtain additional capital, we can make
no assurance that it will not result in the dilution in the ownership and
control of our existing shareholders.
OUR KEY PERSONNEL MAY RESIGN AND WE MAY BE UNABLE TO FIND SUITABLE
REPLACEMENTS, WHICH COULD DISRUPT OUR OPERATIONS.
We are highly dependent on two key members of our management team,
James J. Hutton and Thomas G. O'Flaherty. The loss of the services of either
or both of them may adversely affect our ability to successfully execute our
business plan. Recruiting and retaining qualified technical personnel to carry
out research and development and technical support will be critical to our
future success. Although our management believes that we will continue to be
successful in attracting and retaining skilled personnel, we can offer no
assurance that we can accomplish this objective on acceptable terms. Each
management employment contract contains a non-compete clause. Further, we have
implemented Cdn$2,000,000 key person insurance policy on Mr. Hutton; we do not
have key person insurance on Mr. O'Flaherty.
OUR BUSINESS MODEL IS IN ITS EARLY STAGES AND MAY NOT BE AS
SUCCESSFUL AS WE ANTICIPATE.
In early 1998, the focus of our predecessor's business by necessity
shifted to research and development efforts needed to develop a Windows NT
platform-based product line. Given this shift in our business focus, even
though our predecessor and we have had limited revenues from operations since
1993, we are at an early stage of entering the commercial marketplace. Our
future operating results are subject to a number of risks, including our
ability to implement our strategic plan, to attract qualified personnel and
to raise sufficient financing as required. Our management's inability to
guide growth effectively, including implementing appropriate systems,
procedures and controls, could have an adverse effect on our financial
condition and operating results.
WE ARE LOCATED IN CANADA BUT DO BUSINESS PRIMARILY IN THE U.S., WHICH
SUBJECTS US TO RISKS IN EXCHANGE RATE FLUCTUATIONS.
We face foreign currency exchange risk because a majority of our
revenue is denominated in U.S. dollars and a majority of our operating costs
are incurred in Canadian dollars. Significant fluctuations in the foreign
exchange rate between U.S. and Canadian currency will result in fluctuations
in our annual and quarterly results. If the Canadian dollar were to strengthen
in relation to the U.S. dollar, our effective costs would rise in relation to
our revenues, adversely affecting our profitability and competitive position.
4
<PAGE>
WE MAY BE UNABLE TO MANAGE OUR GROWTH EFFECTIVELY.
We anticipate that the management of rapid growth will be a key
challenge. Successful commercialization of our Unified Communications
technology will require management of a number of operational activities in
which we have little experience. We can offer no assurance that, if our
business grows rapidly, we will be able to manage such growth successfully.
Our failure to meet this challenge effectively could have a material adverse
effect on our operating results.
WE HOLD NO PATENTS ON OUR TECHNOLOGY.
We do not have and do not intend to apply for patents on our
products. Management believes that the patent application process in many
countries in which we intend to sell products would be time-consuming and
expensive. In addition, patents would have the effect of publicizing the
source code or other proprietary aspects of our products. Further, we intend
continually to improve and upgrade our products. As a consequence, any patent
protection may be out of date by the time the patent is granted.
WE ARE HIGHLY DEPENDENT ON OUR SUPPLIERS AND ANY DISRUPTION IN OUR
SUPPLY NETWORK COULD SIGNIFICANTLY IMPAIR OUR OPERATIONS.
Although we perform almost all of our software development in-house,
we purchase some software and all our telephony boards, which are
subcomponents and a significant part of our Unified Communications product
line, from third parties. We do not have written supply agreements with any of
our suppliers. A disruption in supply or degradation in quality could have an
adverse impact on our business and financial results, particularly at a time
when we are attempting to build brand identity and customer loyalty. In
addition, an increase in prices from our suppliers could also have an adverse
impact on our business and financial results.
OFFICERS AND DIRECTORS HAVE LIMITED LIABILITY AND ARE ELIGIBLE FOR
INDEMNIFICATION BY US UNDER NEVADA LAW.
Our certificate of incorporation and our by-laws provide that we
shall indemnify any officer or director, or any former officer or director, to
the full extent permitted by law. In general, the Nevada Business Corporation
Act permits indemnification of officers and directors in those instances where
the officer or director 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. As a result, we
may pay the judgment or other settlement received by a plaintiff against one
of our officers, directors, employees or consultants as well as their legal
expenses. This result could constitute a risk to shareholders.
RISKS RELATED TO OUR INDUSTRY
OUR BUSINESS IS SUBJECT TO RISKS RELATED TO RAPID TECHNOLOGICAL
CHANGE, WHICH COULD INCREASE COST AND UNCERTAINTY.
The telecommunications industry is characterized by rapidly changing
technology and evolving industry standards. Our success will depend heavily on
our continuing ability to develop and introduce enhancements to our existing
systems and new products that meet changing markets. We can make no assurance
that our technology or systems will not become obsolete due to the
introduction of alternative technologies. If we are unable to continue to
innovate successfully, our business and operating results could be adversely
affected.
5
<PAGE>
RISKS RELATED TO OUR SHARES
FUTURE SALES OF OUR COMMON STOCK MAY CAUSE OUR STOCK PRICE TO DECLINE.
As of September 12, 2000, we had outstanding approximately
24,676,336 common share equivalents, consisting of 18,076,336 shares of
common stock and 6,600,000 shares of common stock issuable on conversion of
all outstanding exchangeable shares. All of the 8,293,000 shares issued in
April 1999 under Rule 504 of the Securities Act of 1933, as amended, are
freely tradable, as are 428,815 shares acquired by certain employees of the
Company upon the exercise of options granted under our 1999 Stock Option Plan
and 520,000 shares issued under Rule 504 prior to April 1999.
The remaining outstanding shares have not been registered under the
Securities Act and therefore will be treated as "restricted securities" and
may be publicly sold in the United States only if registered or if the sale is
made in accordance with an exemption from registration, such as Rule 144 under
the Securities Act. Under these exemptions, however, substantially all of the
other 15,434,521 shares generally will be eligible for resale in the United
States without registration one year from the date of issuance. This may
adversely affect the market price of our shares and could affect the level of
trading of such shares.
As of September 12, 2000, warrants to purchase an aggregate of
5,396,800 shares were outstanding. We intend to register under the Securities
Act the shares of common stock issuable upon exercise of such warrants. On
April 11, 2000, we registered under the Securities Act 5,000,000 shares
reserved for issuance under our 1999 Stock Option Plan, of which 428,815
shares have been issued pursuant to exercise. On September 13, 2000 we
registered an additional 5,000,000 shares reserved for issuance under this
plan. When issued, all of these shares generally will be freely tradable.
The sale of a significant number of shares, or the perception that
such sales could occur, could adversely affect prevailing market prices for
the shares and could impair our future ability to raise capital through an
offering of equity securities.
OUR COMMON STOCK IS ILLIQUID AND SUBJECT TO PRICE VOLATILITY.
Our common stock currently trades on a limited basis on the
Over-the-Counter Bulletin Board. The market price of our common stock could
fluctuate substantially due to a variety of factors, including market
perception of our ability to achieve our planned growth, quarterly operating
results of other telephony companies, trading volume in our common stock,
changes in general conditions in the economy and the financial markets or
other developments affecting our competitors or us. In addition, the stock
market is subject to extreme price and volume fluctuations. This volatility
has had a significant effect on the market price of securities issued by many
companies for reasons unrelated to their operating performance and could have
the same effect on our common stock.
OUR ARTICLES OF INCORPORATION AND BYLAWS AND NEVADA LAW CONTAIN
PROVISIONS THAT COULD DELAY OR PREVENT A CHANGE OF CONSENT AND COULD LIMIT THE
MARKET PRICE OF OUR COMMON STOCK.
Our authorized capital stock consists of 100,000,000 shares of common
stock and 1,000,000 shares of preferred stock. Our board of directors, without
any action by shareholders, is authorized to designate and issue shares of
preferred stock in any class or series as it deems appropriate and to
establish the rights, preferences and privileges of these shares, including
dividends, liquidation and voting rights. The rights of holders of shares of
preferred stock that may be issued may be superior to the rights granted to
the holders of existing shares of our common stock. Further, the ability of
our board of directors to designate and issue such undesignated shares could
impede or deter an unsolicited tender offer or takeover proposal and the
issuance of additional shares having preferential rights could adversely
affect the voting power and other rights of holders of our common stock.
6
<PAGE>
FORWARD-LOOKING STATEMENTS
Some statements contained in or incorporated into this prospectus
relate to future development activities and costs, and other statements
contained in this prospectus are prospective and constitute forward-looking
statements. These forward-looking statements involve known and unknown risks,
uncertainties and other factors, over which we have no control, that could
cause actual results to differ materially from future results expressed or
implied by these forward-looking statements. These forward-looking statements
are based on our projections and estimates at the time they were made and are
often, but not always, identified by words or phrases such as "expects,"
"intends," "plans," "projects," "anticipates," "believes," "our estimates"
and similar words. The most significant risks, uncertainties and other factors
that could cause our actual results to differ materially are discussed under
"Risk Factors" above.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports and other information
with the SEC. You can read and copy any document filed by us at the public
reference facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may request copies of these documents, upon
payment of a duplicating fee, by writing the SEC at this address. Please call
the SEC at 1-800-SEC-0330 for further information on the operation of its
public reference room.
Our SEC filings are also available on the SEC's Website at
"http://www.sec.gov." We have filed with the SEC a registration statement of
which this prospectus is a part under the Securities Act of 1933 with respect
to the securities being offered. This prospectus does not contain all of the
information set forth in the registration statement. We have omitted
information as permitted by the rules and regulations of the SEC. Statements
contained in this prospectus as to the contents of any contract or other
document are not necessarily complete, and in each instance we refer you to
the copy of this contract or other document filed as an exhibit to the
registration statement. Each statement made in this prospectus is qualified in
all respects by the contents of the exhibits and schedules to the registration
statement.
The SEC allows us to "incorporate by reference" information from
other documents that we file with it, which means that we can disclose
important information by referring you to those documents. The information
incorporated by reference is an important part of this prospectus, and
information that we file later with the SEC will automatically update and
supersede this information. We incorporate by reference the following
documents:
- Our Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999;
- Our Quarterly Reports on Form 10-QSB for the quarters ended
March 31, 2000 and June 30, 2000;
- "Item 8. Description of Securities" in our Registration
Statement on Form 10-SB Amendment No. 5, (Commission File No.
000-27387) describing our capital stock, as filed with the SEC
on February 14, 2000 pursuant to the Securities Exchange Act
of 1934; and
- Our Current Reports on Form 8-K filed on January 3, 2000,
March 16, 2000, May 15, 2000 and May 17, 2000; and
- All other documents filed by us pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and prior to termination of this offering.
You may request a copy of any of these documents, excluding exhibits
unless they are specifically incorporated by reference, at no cost by writing
or telephoning us at the following: #180 - 13777 Commerce Parkway, Richmond,
British Columbia, Canada V6V 2X3, (604) 482-1245.
7
<PAGE>
You should rely only on the information contained in this document or
to which we have referred you. We have not authorized anyone else to provide you
with different information.
VOICE MOBILITY INTERNATIONAL, INC.
We are a Nevada corporation. Our principal executive offices are
located at #180 - 13777 Commerce Parkway, Richmond, British Columbia, Canada V6V
2X3, and our telephone number is (604) 482-1245.
PRICE RANGE OF SHARES
Our common stock is traded on the Over-the-Counter Bulletin Board under
the symbol "VMII." The following table sets forth, for the periods indicated,
the high and low sales prices for our common stock as reported on the Bulletin
Board:
<TABLE>
<CAPTION>
PERIOD HIGH LOW
------ ---- ---
<S> <C> <C>
1999
Third Quarter 3.31 2.13
Fourth Quarter 3.31 1.81
2000
First Quarter 11.00 2.00
Second Quarter 9.13 4.69
Third Quarter (through September 12, 2000) 7.25 5.00
</TABLE>
On September 12, 2000, the last reported sale price for our common
stock was $5.20.
USE OF PROCEEDS
We are registering the shares offered pursuant to this prospectus for
the accounts of the selling shareholders listed below. The selling shareholders
will be entitled to all of the proceeds from any sales of these shares. We will
not receive any part of the proceeds from any sales of these shares by the
selling shareholders.
SELLING SHAREHOLDERS
The following table sets forth information regarding the ownership of
shares of our common stock by the selling shareholders as of September 12, 2000.
Each of the selling shareholders may offer and sell all or a part of his shares
registered pursuant to this prospectus. However, in order to complete this
table, we have estimated that the selling shareholders will sell all of the
shares registered hereunder. We may amend or supplement this information from
time to time.
<TABLE>
<CAPTION>
Number of Percentage Number of Number of Percentage
Shares Owned of Shares Shares Shares of Shares
prior to Owned prior Offered Owned after Owned after
Name(1) Offering(2) to Offering Hereby(3) Offering Offering
------- ----------- ----------- --------- -------- -----------
<S> <C> <C> <C> <C> <C>
Randy G. Buchamer 50,000 * 50,000 0 *
W. Colin Corey 50,000 * 50,000 0 *
F. David D. Scott 50,000 * 50,000 0 *
Morgan P. Sturdy 50,000 * 50,000 0 *
David H. Grinstead 550,000 2.18 550,000 0 *
William E. Krebs 2,543,897 10.17 250,000 2,293,897 9.27
James J. Hutton 2,146,778 8.60 250,000 1,896,778 7.68
8
<PAGE>
Thomas G. O'Flaherty 625,550 2.47 625,000 550 *
James Hewett 105,000 * 105,000 0 *
</TABLE>
----------
* Less than 1%
(1) Messrs. Corey, Scott and Sturdy serve on our board of directors. Mr.
Buchamer serves as the Chairman of our board of directors. Mr. Krebs is our
Treasurer and serves on our board of directors. Mr. Hutton is our Chief
Executive Officer and serves on our board of directors. Mr. O'Flaherty is our
President and serves on our board of directors. Mr. Hewett is our Chief
Financial Officer. Mr. Grinstead is our Executive Vice President Business
Development.
(2) As of the date of this prospectus:
- Mr. Buchamer owned 50,000 shares pursuant to options;
- Mr. Corey owned 50,000 shares pursuant to options;
- Mr. Scott owned 50,000 shares pursuant to options;
- Mr. Sturdy owned 50,000 shares pursuant to options;
- Mr. Grinstead owned 550,000 shares pursuant to options;
- Mr. Krebs owned 943,897 shares of common stock, 1,250,000
exchangeable shares, 100,000 shares pursuant to warrants and 250,000
shares pursuant to options;
- Mr. Hutton owned 91,778 shares of common stock, 1,750,000
exchangeable shares, 55,000 shares pursuant to warrants and 250,000
shares pursuant to options;
- Mr. O'Flaherty owned 550 shares of common stock and 625,000 shares
pursuant to options; and
- Mr. Hewett owned 105,000 shares pursuant to options.
(3) Consists only of shares held pursuant to options.
PLAN OF DISTRIBUTION
The selling shareholders may offer and sell the shares covered by this
prospectus from time to time in one or more transactions, which may involve
block transactions, on the Bulletin Board or other securities exchange or in
transactions otherwise than on those exchanges or in any combination of
transactions. Sales may be effected at market prices prevailing at the time of
sale, at prices related to market prices or at negotiated prices. The selling
shareholders may sell shares to or through broker-dealers in transactions
involving one or more of the following:
- a block trade in which the broker-dealer attempts to sell the
shares as an agent but, to facilitate the transaction, may
position and resell a portion of the block as a principal,
- an underwritten public offering,
- purchases by a broker-dealer as a principal and resale by the
broker-dealer for its own account, or
- ordinary brokerage transactions in which the broker-dealer
solicits purchases.
Broker-dealers participating in the distribution of shares may be
deemed to be underwriters under the Securities Act of 1933, and any discounts or
commissions received by the broker-dealers and any profit on the resale of the
shares may be deemed to be underwriting discounts or commissions under the
Securities Act. Any of the shares covered by this prospectus that qualify for
sale pursuant to Rule 144 under the Securities Act may be sold under that Rule
rather than pursuant to this prospectus. Upon notification by any of the selling
shareholders of any material arrangement to sell shares through a secondary
distribution, or a purchase by a broker-dealer, we will file a supplement to
this prospectus, if required, to disclose among other things the names of the
broker-dealers, the number of shares involved,
9
<PAGE>
the price at which the shares will be sold and the commissions paid or the
discounts or concessions allowed to the broker-dealers.
Until October 22, 2000, all dealers that effect transactions in these
securities, whether or not participating in this offering, may be required to
deliver a prospectus. This is in addition to the dealers' obligation to deliver
a prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
10
<PAGE>
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 hereby
incorporated by reference into this Registration Statement:
(a) The Registrant's quarterly report on Form 10-QSB for the period
ended June 30, 2000, filed with the Commission on August 14, 2000; and
(b) The Registrant's amended quarterly report on Form 10-QSB for the
period ended March 31, 2000, filed with the Commission on May 18, 2000; and
(c) The Registrant's annual report on Form 10-KSB for the period ended
December 31, 1999, filed with the Commission on March 30, 2000; and
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 10-SB Amendment No. 5 filed with the
Commission on February 14, 2000 pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "1934 Act"); and
(e) The Registrant's Current Reports on Form 8-K filed on January 3,
2000, March 16, 2000, May 15, 2000 and May 17, 2000.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the 1934 Act, prior to the
filing of a post-effective amendment 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 in this Registration Statement and to
be a part hereof from the date of filing such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Chapter 78 of the Nevada Revised Statutes permits the indemnification
of directors, employees, officers and agents of Nevada corporations as follows:
Section 78.7502. Discretionary and mandatory indemnification of
officers, directors, employees and agents:
General provisions.
1. 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,
except 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 the action, suit or proceeding if he acted in good faith and in
a manner which 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. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
11
<PAGE>
2. 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 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 amounts paid in settlement and attorneys' fees actually and
reasonably incurred by him in connection with the defense or settlement of the
action or suit if he acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation.
Indemnification may not be made for any claim, issue or matter as to which
such a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation or for
amounts paid in settlement to the corporation, unless and only to the extent
that the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems 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
action, suit or proceeding referred to in subsections 1 and 2, or in defense
of any claim, issue or matter therein, the corporation shall indemnify him
against expenses, including attorneys' fees, actually and reasonably incurred
by him in connection with the defense.
Section 78.751. Authorization required for discretionary indemnification;
advancement of expenses; limitation on indemnification and advancement of
expenses.
1. Any discretionary indemnification under NRS 78.7502 unless ordered
by a court or advanced pursuant to subsection 2, may be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The determination must be made: (a) by the stockholders; (b) by
the board of directors by majority vote of a quorum consisting of directors
who were not parties to the action, suit or proceeding; (c) if a majority vote
of a quorum consisting of directors who were not parties to the action, suit
or proceeding so orders, by independent legal counsel in a written opinion; or
(d) if a quorum consisting of directors who were not parties to the action,
suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
2. The articles of incorporation, the bylaws or an agreement made by
the corporation may provide that the expenses of officers and directors
incurred in defending a civil or criminal action, suit or proceeding must be
paid by the corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an undertaking
by or on behalf of the director or officer to repay the amount if it is
ultimately determined by a court of competent jurisdiction that he is not
entitled to be indemnified by the corporation. The provisions of this
subsection do not affect any rights to advancement of expenses to which
corporate personnel other than directors or officers may be entitled under any
contract or otherwise by law.
3. The indemnification and advancement of expenses authorized in or
ordered by a court pursuant to this section: (a) does not exclude any other
rights to which a person seeking indemnification or advancement of expenses
may be entitled under the articles of incorporation or any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, for either an
action in his official capacity or an action in another capacity while holding
his office, except that indemnification, unless ordered by a court pursuant to
NRS 78.7502 or for the advancement of expenses made pursuant to subsection 2,
may not be made to or on behalf of any director or officer if a final
adjudication establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action; (b) continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the heirs, executors
and administrators of such a person.
Section 78.752. Insurance and other financial arrangements against liability
of directors, officers, employees and agents.
1. A corporation may purchase and maintain insurance or make other
financial arrangements on behalf of any person who 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,
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partnership, joint venture, trust or other enterprise for any liability
asserted against him and liability and expenses incurred by him in his
capacity as a director, officer, employee or agent, or arising out of his
status as such, whether or not the corporation has the authority to indemnify
him against such liability and expenses.
2. The other financial arrangements made by the corporation pursuant
to subsection 1 may include the following: (a) the creation of a trust fund;
(b) the establishment of a program of self-insurance; (c) the securing of its
obligation of indemnification by granting a security interest or other lien on
any assets of the corporation; (d) the establishment of a letter of credit,
guaranty or surety.
No financial arrangement made pursuant to this subsection may provide
protection for a person adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable for intentional misconduct,
fraud or a knowing violation of law, except with respect to the advancement of
expenses or indemnification ordered by a court.
3. Any insurance or other financial arrangement made on behalf of a
person pursuant to this section may be provided by the corporation or any
other person approved by the board of directors, even if all or part of the
other person's stock or other securities is owned by the corporation.
4. In the absence of fraud: (a) the decision of the board of
directors as to the propriety of the terms and conditions of any insurance or
other financial arrangement made pursuant to this section and the choice of
the person to provide the insurance or other financial arrangement is
conclusive; and (b) the insurance or other financial arrangement: (1) is not
void or voidable; and (2) does not subject any director approving it to
personal liability for his action, even if a director approving the insurance
or other financial arrangement is a beneficiary of the insurance or other
financial arrangement.
5. A corporation or its subsidiary which provides self-insurance for
itself or for another affiliated corporation pursuant to this section is not
subject to the provisions of Title 57 of NRS.
Our Certificate of Incorporation provides as follows:
ARTICLE XI
The liability of the directors of the corporation for monetary
damages shall be eliminated to the fullest extent permissible under Nevada Law.
ARTICLE XII
The corporation is authorized to indemnify the directors and officers
of the corporation to the fullest extent permissible under Nevada Law.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Act"), may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
Act and is therefore unenforceable.
Our By-Laws provide as follows:
ARTICLE X - INDEMNIFICATION OF DIRECTORS AND OFFICERS
1. INDEMNIFICATION. The corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any 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 such person
is or was a director, trustee, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, trustee,
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
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actually and reasonably incurred by such person in connection with such
action, suit or proceeding if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests
of the corporation, and with respect to any criminal action or proceeding, had
no reasonable cause to believe such person's conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, by
itself, create a presumption that the person did not act in good faith and in
a manner which the person reasonably believed to be in or not opposed to the
best interest of the corporation, and with respect to any criminal action or
proceeding, had reasonable cause to believe that such person's conduct was
lawful.
2. DERIVATIVE ACTION. 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 or suit by or in the right of the corporation to
procure a judgment in the corporation's favor by reason of the fact that such
person is or was a director, trustee, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, trustee, officer, employee or agent of any other 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 such person in connection with such
action, suit or proceeding if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests
of the corporation; provided, however, 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 for gross negligence or willful misconduct in the
performance of such person's duty to the corporation unless and only to the
extent that the court in which such action or suit was brought shall determine
upon application that, despite circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as such court
shall deem proper. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, by itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to
be in or not opposed to the best interest of the corporation.
3. SUCCESSFUL DEFENSE. To the extent that a director, trustee,
officer, employee or agent of the corporation has been successful, on the
merits or otherwise, in whole or in part, in defense of any action, suit or
proceeding referred to in paragraphs 1 and 2 above, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
4. AUTHORIZATION. Any indemnification under paragraph 1 and 2 above
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of
the director, trustee, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct
set forth in paragraph 1 and 2 above. 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 action, suit or proceeding, (b) if by independent
legal counsel (selected by one or more of the directors, whether or not a
quorum and whether or not disinterested) in a written opinion, or by the
shareholders. Anyone making such a determination under this paragraph 4 may
determine that a person has met the standards therein set forth as to some
claims, issues or matters but not as to others, and may reasonably prorate
amounts to be paid as indemnification.
5. ADVANCES. Expenses incurred in defending civil or criminal
actions, suits or proceedings shall be paid by the corporation, at any time or
from time to time in advance of the final disposition of such action, suit or
proceeding as authorized in the manner provided in paragraph 4 above upon
receipt of an undertaking by or on behalf of the director, trustee, officer,
employee or agent to repay such amount unless it shall ultimately be
determined by the corporation that the payment of expenses is authorized in
this Section.
6. NONEXCLUSIVITY. The indemnification provided in this Section shall
not be deemed exclusive of any other rights to which those indemnified may be
entitled under any law, by-law, agreement, vote of shareholders or
disinterested director or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
trustee, officer, employee or agent and shall insure to the benefit of the
heirs, executors, and administrators of such a person.
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7. INSURANCE. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, trustee,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee or agent
of any corporation, partnership, joint venture, trust or other enterprise,
against any liability assessed against such person in any such capacity or
arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liability.
8. "CORPORATION" DEFINED. For purpose of this action, references to
the "corporation" shall include, in addition to the corporation, any
constituent corporation (including any constituent of a constituent) absorbed
in a consolidation or merger which, if its separate existence had continued,
would have had the power and authority to indemnify its directors, trustees,
officers, employees or agents, so that any person who is or was a director,
trustee, officer, employee or agent of such of constituent corporation will be
considered as if such person was a director, trustee, officer, employee or
agent of the corporation.
ITEM 8. EXHIBITS
5.1 Opinion of Brand Farrar & Buxbaum LLP.
23.1 Consent of Brand Farrar & Buxbaum LLP (included in Exhibit 5.1).
23.2 Consent of Bedford Curry & Co.
23.3 Consent of Ernst & Young, LLP.
24.1 Power of Attorney (included as part of the signature page to this
Registration Statement).
ITEM 9. UNDERTAKINGS
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 that remain unsold at the
termination of the offering.
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.
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 provisions summarized under Item 6,
or otherwise, the registrant has been advised that in the opinion of the
Securities and
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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
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 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 Richmond, British Columbia, Canada, on the 13th
day of September, 2000.
VOICE MOBILITY INTERNATIONAL, INC.
By: /s/ James Hewett
----------------------------
James Hewett
Chief Financial Officer
(Principal Accounting Officer)
POWER OF ATTORNEY
We, the undersigned officers and directors of Voice Mobility
International, Inc., hereby severally constitute and appoint each of Messrs.
Thomas O'Flaherty and James Hewett as our true and lawful attorneys, with full
power to each of them, to sign for us in our names in the capacities indicated
below, any amendments to this Registration Statement on Form S-8 (including
post-effective amendments), and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, and generally to do all things in our names and on our behalf in
our capacities as officers and directors to enable Voice Mobility
International, Inc. to comply with the provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be
signed by our said attorney to said Registration Statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ William E. Krebs Treasurer, Director September 13, 2000
------------------------------------
William E. Krebs
/s/ Thomas O'flaherty President, Director September 13, 2000
------------------------------------
Thomas O'Flaherty
/s/ Randy G. Buchamer Chairman of the Board September 13, 2000
------------------------------------
Randy G. Buchamer
/s/ James J. Hutton Chief Executive Officer, Director September 13, 2000
------------------------------------
James J. Hutton
/s/ Colin Corey Director September 13, 2000
------------------------------------
Colin Corey
/s/ Morgan P. Sturdy Director September 13, 2000
------------------------------------
Morgan P. Sturdy
/s/ F. David D. Scott Director September 13, 2000
------------------------------------
F. David D. Scott
/s/ David H. Grinstead Executive Vice President, Business Development September 13, 2000
------------------------------------
David H. Grinstead
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
--- -----------
<S> <C>
5.1 Opinion of Brand Farrar & Buxbaum LLP.
23.1 Consent of Brand Farrar & Buxbaum LLP (included in Exhibit 5.1).
23.2 Consent of Bedford Curry & Co.
23.3 Consent of Ernst & Young, LLP.
24.1 Power of Attorney (included as part of the signature page to this
Registration Statement).
</TABLE>
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