As filed with the Securities and Exchange Commission on January 26, 2005
Registration No. _______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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VoIP, INC.
(Exact name of the Company as specified in its charter)
Texas 75-2785941
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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12330 SW 53rd Street, Suite 712
Ft. Lauderdale, FL 33330
(Address of principal executive offices)
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2004 STOCK OPTION PLAN
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With copies to:
Steven Ivester Ronald L. Brown
VolP, Inc. Andrews Kurth LLP
12330 SW 53rd Street, Suite 712 1717 Main Street, Suite 3700
Ft. Lauderdale, Florida 33330 Dallas, Texas 75201
(Name and address of agent for service) (214) 659-4469
(954) 434-2000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
--------------------------- ---------------- -------------------- --------------------- ---------------------
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price per Aggregate Offering Amount of
Registered Registered (1) Share (2) Price (1)(2) Registration Fee (2)
--------------------------- ---------------- -------------------- --------------------- ---------------------
Common Stock, $0.001 4,000,000 $1.84 $7,360,000 $932
--------------------------- ---------------- -------------------- --------------------- ---------------------
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Securities Act"), this Registration Statement also
covers an indeterminate number of additional shares that may be
issuable in connection with share splits, share dividends or similar
transactions.
(2) Estimated pursuant to Rule 457(c) under the Securities Act, solely for
the purpose of calculating the registration fee, based on the average
of the bid and asked prices for the Company's common stock as reported
within five business days prior to the date of this filing.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
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Item 2. Company Information and Employee Plan Annual Information. *
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*The document(s) containing the information specified in Part 1 of Form S-8 will
be sent or given to participants as specified by Rule 428(b)(1) promulgated by
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"). Such document(s) are not being
filed with the Commission, but constitute (along with the documents incorporated
by reference into the Registration Statement pursuant to Item 3 of Part II
hereof) a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The following documents previously or concurrently filed by VoIP, Inc.
(the "Company") with the Commission are hereby incorporated by reference into
this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 2003 (the "Annual Report") filed by the
Company (SEC File No. 000-28985) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to in (a) above.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold,
shall be deemed incorporated by reference into this Registration Statement and
to be a part thereof from the date of the filing of such documents. Any
statement contained in the documents incorporated, or deemed to be incorporated,
by reference herein or therein shall be deemed to be modified or superseded for
purposes of this Registration Statement and the prospectus which is a part
hereof (the "Prospectus") to the extent that a statement contained herein or
therein or in any other subsequently filed document which also is, or is deemed
to be, incorporated by reference herein or therein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement and the Prospectus.
Item 4. Description of Securities.
-------------------------
The description of the Company's Common Stock set forth under the
caption "Description of Securities" at page 30 of the Company's Form SB-2, filed
with the Commission on December 13, 2004, is hereby incorporated by reference.
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Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Company's Articles of Incorporation provide that no director of the
Company will be personally liable to the Company or any of its shareholders for
monetary damages arising from the director's breach of fiduciary duty as a
director, with certain limited exceptions.
Pursuant to the Texas Business Corporation Act (the "Act"), every Texas
corporation has the power to 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 (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, officer, employee
or agent of the corporation or is or was serving in such a capacity at the
request of the corporation for another corporation, partnership, joint venture,
trust or other enterprise, against any and all expenses, judgments, fines and
amounts paid in settlement and reasonably incurred in connection with such
action, suit or proceeding. The power to indemnify applies only if such person
acted in good faith and in a manner such person reasonably believed to be in the
best interests, 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 power to indemnify applies to actions brought by or in the right of
the corporation as well, but only to the extent of defense and settlement
expenses and not to any satisfaction of a judgment or settlement of the claim
itself, and with the further limitation that in such actions no indemnification
shall be made in the event of any adjudication of negligence or misconduct
unless the court, in its discretion, believes that in light of all the
circumstances indemnification should apply.
The Company's Articles of Incorporation and Bylaws contain provisions
authorizing it to indemnify its officers and directors to the fullest extent
permitted by the Securities Act.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
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4.1 2004 Stock Option Plan.
4.2 Form of Incentive Option Agreement
4.3 Form of Non-Qualified Stock Option Agreement
5.1 Opinion of Andrews Kurth LLP
23.1 Consent of Tschopp, Whitcomb & Orr, PA.
23.2 Consent of Andrews Kurth LLP (included in Exhibit 5.1).
Item 9. Undertakings.
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(a) The undersigned Company 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: (i) include any prospectus
required by Section 10(a)(3) of the Securities Act of
1933; (ii) reflect in the prospectus any facts or
events arising after the effective date of the
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registration statement which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
and notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective registration statement; and (iii) include
any material information with respect to the plan of
distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement, provided
however, that provisions (i) and (ii) of this
undertaking are inapplicable if the information to be
filed thereunder is contained in periodic reports
filed by the Company pursuant to the Exchange Act
that are incorporated by reference into the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
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.
(c) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Ft. Lauderdale, State of Florida, on January 24,
2005.
VolP, Inc.
By: /s/ Steven Ivester
--------------------------------
Steven Ivester, President, Chief
Executive Officer and Director
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 dates indicated.
Name Office Date
---- ------ ----
/s/ Steven Ivester Chairman, Chief Executive January 24, 2005
--------------------- Officer, Director and President
Steven Ivester (Principal Executive Officer)
/s/ Osvaldo Pitters Chief Financial Officer January 24, 2005
--------------------- (Principal Financial and
Osvaldo Pitters Accounting Officer)
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VolP, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
EXHIBIT NO. DESCRIPTION
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4.1 2004 Stock Option Plan
4.2 Form of Incentive Option Agreement
4.3 Form of Non-Qualified Stock Option Agreement
5.1 Opinion of Andrews Kurth LLP
23.1 Consent of Tschopp Whitcomb & Orr, P.A.
23.2 Consent of Andrews Kurth LLP (included in Exhibit 5.1).
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