U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FONEFRIEND, INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 33-0611753
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(State of Incorporation) (I.R.S. Employer ID No.)
2722 Loker Avenue--Suite G, H
Carlsbad, CA 92008
(Address of principal executive offices)
2002 NON-EMPLOYEE DIRECTOR AND CONSULTANT RETAINER STOCK PLAN AND
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EMPLOYEE STOCK INCENTIVE PLAN
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(Full title of the Plan)
The Company Corporation
2711 Centerville Road, Suite 400
Wilmington, DE 19808
(Name and address of agent for service)
(302) 658-7581
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Class of Maximum Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
---------- ---------- --------- -------------- ---
Common Stock 1,100,000 $0.0003 (1) $ 330 $.03
($.001 par value)
Common Stock 3,500,000 $0.001 (2) $3,500 $.32
($.001 par value)
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(1) Calculated under Rule 457(h)(1) (reference to Rule 457(c)) as the issuance
price of the Award Shares is not known: average of the bid and ask prices as of
December 22, 2002 (within 5 business days prior to the date of filing the
registration statement). See 2002 Non-Employee Director And Consultant Retainer
Stock Plan And Employee Stock Incentive Plan, attached as Exhibit 4.1 to this
Form S-8 for shares of Common Stock representing Award Shares thereunder.
(2) Calculated under Rule 457(h)(1): deemed issuance price as set forth in the
2002 Non-Employee Director And Consultant Retainer Stock Plan And Employee
Stock Incentive Plan, attached as Exhibit 4.1 to this Form S-8 for shares of
Common Stock representing Option Shares thereunder.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
See Item 2 below.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to each of the participants in accordance with Form S-8
and Rule 428 promulgated under the Securities Act of 1933. The participants will
be provided a written statement notifying them that upon written or oral request
they will be provided, without charge, (a) the documents incorporated by
reference in Item 3 of Part II of the registration statement, and (b) other
documents required to be delivered pursuant to Rule 428(b). The statement will
inform the participants that these documents are incorporated by reference in
the Section 10(a) prospectus, and will include the address (giving title or
department) and telephone number to which the request is to be directed.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 2002, filed pursuant to Section 13 of 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, including, the Registrant's Quarterly
Report on Form 10-Q (or as amended on Form 10-Q/A) for the quarters
ended June 30, 2002 and September 30, 2002, respectively.
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(c) A Special Report, Form 8-K filed on December 5, 2002 and Form 8-K/A
filed on December 26, 2002 reporting that the Registrant completed its
acquisition of all the assets of FoneFriend, Inc., a Nevada
corporation, pursuant to an Amended and Restated and Plan of Merger,
dated as of June 12, 2002, by and among FoneFriend, Inc. and the
Registrant. Pursuant to the Plan of Merger, FoneFriend, Inc. was merged
into the Registrant pursuant to a "C" type, tax-free reorganization,
with the Registrant being the surviving corporation and changing its
name to FoneFriend, Inc. and otherwise issuing shares of stock pursuant
to the terms of the Plan of Merger.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, 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, will
be deemed to be incorporated by reference in the registration statement and to
be part thereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Please see the Special Report, Form 8-K filed on December 5, 2002 which
is incorporated by reference pursuant to Item 3. Also, we provide the following
information:
Authorized Stock:
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Our authorized stock consists of 200,000,000 authorized shares of
common stock ("Common Stock"), par value $0.001 per share, 7,646,000 shares of
which were outstanding as of December 5, 2002. The Registrant also has
authorized 50,000,000 shares of Preferred Stock par value $0.001 per share, of
which 820,361 shares of series A preferred stock is outstanding as of December
5, 2002.
Common Stock:
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Each share of Common Stock is entitled to one vote, either in person or
by proxy, on all matters that may be voted upon by the owners thereof at a
meeting of the shareholders, including the election of directors. The holders of
Common Stock (i) have equal, ratable rights to dividends from funds legally
available therefor, when, as and if declared by the Board of Directors of the
Registrant; (ii) are entitled to share ratably in all of our assets available
for distribution to holders of Common Stock upon liquidation, dissolution or
winding up of our affairs; (iii) do not have preemptive or redemption provisions
applicable thereto; and (iv) are entitled to one non-cumulative vote per share
on all matters on which shareholders may vote at all meetings of shareholders.
All shares of Common Stock issued and outstanding were fully paid and
nonassessable, with no personal liability attaching to the ownership thereof.
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Trading Market:
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The shares of Common stock of the Registrant will be trading under the
symbol FFRD on the Over the Counter Bulletin Board. It is the intention of the
Registrant to list the shares of Common Stock on the NASDAQ National Market
System as promptly as practicable after the date hereof. These facts
notwithstanding, the existence of trading on the Over the Counter Bulletin Board
and the NASDAQ National Market System should not be deemed to constitute an
established public trading market for the Common Stock and there can be no
assurances that a market for the Registrant's securities will develop.
Dividends
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The Registrant has never declared dividends on its common stock and
does not intend to declare dividends at any point in the foreseeable future.
Equity Compensation Plans.
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As of the date hereof, there are no equity compensation plans pursuant
to which shares of the Registrant are authorized for issuance except as set
forth in this Form S-8.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
No named expert or counsel was hired on a contingent basis, will
receive a direct or indirect interest in the small business issuer, or was a
promoter, underwriter, voting trustee, director, officer, or employee of the
Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Restated Certificate of Incorporation.
The Restated Certificate of Incorporation of the Registrant provides
the following with respect to indemnification:
"The Corporation shall, to the fullest extent authorized by the General
Corporation Law, indemnify fully, or if not possible, partially, each of its
directors and persons who serve at its request as directors at another
organization, including partnerships, joint ventures, trusts, employee benefit
plans, in which it owns shares or of which it is a creditor (hereinafter
collectively "Director"), against expenses, including fees and expenses of
counsel and experts selected by any such Director (hereinafter "Expenses"), and
any liabilities, including amounts of judgments, ERISA excise taxes, fines,
penalties and amounts paid or to be paid in settlement (hereinafter
"Liabilities") imposed upon or reasonably incurred by such Director or on his
behalf in connection with any threatened, pending or completed claim, action,
suit or other proceeding, whether civil, criminal, administrative or
investigative, whether derivative or a third-party action, whether formal or
informal, including audits, the activities of, or service upon special
committees of the board and other forms of alternate dispute resolution, such as
arbitration proceedings (hereinafter collectively "Proceedings"), in which such
Director may be involved or with which he may be threatened as a party, whether
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as plaintiff or defendant, or otherwise, including, but not limited to,
subpoenaed testimony in investigative proceedings, while in office or
thereafter, by reason of the fact that he is, or was, or has agreed to become,
such Director or his acts or omissions as such Director, unless-with exception
of court-ordered indemnification- such Director shall be unsuccessful in
defending such Proceeding and finally adjudged in any legal proceeding not to
have acted in good faith and in the reasonable belief that his action was in or
not opposed to the best interest of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. Such indemnification shall not cover Liabilities toward the
corporation resulting either from claims by the corporation or derivative suits;
provided, however, that such indemnification shall not cover liabilities in
connection with any matter which shall be disposed of through a compromise
payment by such director or officer, pursuant to a consent decree or otherwise,
unless such compromise shall be approved as in the best interest of the
Corporation, after notice that it involved such indemnification, (a) by a vote
of the directors in which no interested director participates, or (b) by a vote
or the written approval of the holders of a majority of the outstanding stock at
the time having the right to vote for directors, not counting as outstanding any
stock owned by any interested director or officer. Such indemnification may
include payment by the Corporation of expenses incurred in defending a civil or
criminal action or proceeding in advance of the final disposition of such action
or proceeding, upon receipt of an undertaking by the person indemnified to repay
such payment if he shall be adjudicated to be not entitled to indemnification
under these provisions. The rights of indemnification hereby provided shall not
be exclusive of or affect other rights to which any director or officer may be
entitled. As used in this paragraph, the terms "director" and "officer" include
their respective heirs, executors and administrators, and an "interested"
director or officer is one against whom as such the proceedings in question or
another proceeding on the same or similar grounds is then pending.
Indemnification of employees and other agents of the Corporation
(including persons who serve at its request as employees or other agents of
another organization in which it owns shares or of which it is a creditor) may
be provided by the Corporation to whatever extent shall be authorized by the
directors before or after the occurrence of any event as to or in consequence of
which indemnification may be sought. Any indemnification to which a person is
entitled under these provisions may be provided although the person to be
indemnified is no longer a director, officer, employee or agent of the
Corporation or of such organization. It is the intent of these provisions to
indemnify director and officers to the fullest extent not specifically
prohibited by law, including indemnification against claims brought
derivatively, in the name of the Corporation, and that such directors and
officers need not exhaust any other remedies."
The Restated Certificate of Incorporation also provides with respect to
Exculpation as follows:
"No director shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director shall
be liable to the extent provided by applicable law (I) for any breach of the
director's Duty of Loyalty (as herein defined) to the Corporation or its
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stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit. For purposes of this provision, duty of
Loyalty means, and only means, the duty not to profit personally at the expense
of the Corporation and dos not include conduct, whether deemed violation of
fiduciary duty or otherwise, which does not involve personal monetary profit. If
the General Corporation Law is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law as so amended."
(b) Bylaws.
The bylaws of the Registrant provide the following with respect to
indemnification:
"SECTION 7. AUTHORIZED PAYMENTS AND REIMBURSEMENTS.
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The Board of Directors may authorize the Corporation to pay expenses
incurred by, or to satisfy a judgment or fine rendered or levied against, a
present or former director, officer, or employee of this Corporation in an
action brought by a third party against such person, whether or not the
Corporation is joined as a party defendant, to impose a liability or penalty on
such person for an act alleged to have been committed by such person while a
director, officer, or employee, or by the Corporation, or by both provided that,
the Board of Directors determines in good faith that such director, officer, or
employee was acting in good faith within what he reasonably believed to be the
scope of his employment or authority and for a purpose which he reasonably
believed to be in the best interests of the Corporation or its shareholders.
Payments authorized hereunder include amounts paid and expenses incurred in
settling any such action or threatened action. This section does not apply to
any action instituted or maintained in the right of the Corporation by a
shareholder or a holder of a voting trust certificate representing shares of the
Corporation. The provisions of this section shall apply to the estate, executor,
administrator, heirs, legatees, or devisees of a director, officer, or employee,
and the term "person" where used in the foregoing shall include the estate,
executor, administrator, heirs, legatees, or devisees of such person "
ARTICLE IX
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
SECTION 1. AGENTS, PROCEEDINGS AND EXPENSES.
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For the purposes of this Article, "agent" means any person who is or
was a director, officer, employee or other agent of the Corporation, or is or
was a director, officer, employee or other agent of the Corporation as a
director, officer, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise, or was a director,
officer, employee or agent of a foreign or domestic corporation which was a
predecessor corporation of the Corporation or of another enterprise at the
request of such predecessor corporation; "proceeding" means any threatened,
pending or complete action or proceeding, whether civil, criminal,
administrative, or investigative; and "expenses" includes, without limitation,
attorneys' fees and any expenses of establishing a right to indemnification
under Section 4 or Section 5(c) of this Article.
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SECTION 2. ACTIONS OTHER THAN BY THE CORPORATION.
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The Corporation shall indemnify any person who was or is a party, or is
threatened to be made a party, to any proceeding (other than an action by or in
the right of the Corporation to procure a judgment in its favor) by reason of
the fact that such person is or was an agent of the Corporation, against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such proceeding if that person acted in
good faith and in a manner that person reasonably believed to be in the best
interests of the Corporation, and in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of that person was unlawful. The
termination of any proceeding by judgment, order, settlement, 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 the
person reasonably believed to be in the best interests of the Corporation or
that the person had reasonable cause to believe that the person's conduct was
unlawful.
SECTION 3. ACTIONS BY THE CORPORATION.
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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 by
or in the right of the Corporation to procure a judgment in its favor by reason
of the fact that that person is or was an agent of the Corporation, against
expenses actually and reasonably incurred by that person in connection with the
defense or settlement of that action if that person acted in good faith, in a
manner that person believed to be in the best interests of the Corporation and
its shareholders. No indemnification shall be made under this Section 3 for any
of the following:
(a) In respect of any claim, issue or matter as to which that
person shall have been adjudged to be liable to the Corporation in the
performance of that person's duty to the Corporation and its shareholders,
unless and only to the extent that the court in which that proceeding is or was
pending shall determine upon application that, in view of all the circumstances
of the case, that person is fairly and reasonably entitled to indemnification
for expenses and then only to the extent that the court shall determine;
(b) Of amounts paid in settling or otherwise disposing of a
pending action, without court approval; or
(c) Of expenses incurred in defending a pending action which
is settled or otherwise disposed of without court approval.
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SECTION 4. SUCCESSFUL DEFENSE BY AGENT.
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To the extent that an agent of the Corporation has been successful on
the merits in defense of any proceeding referred to in Sections 2 or 3 of this
Article, or in defense of any claim, issue or matter therein, the agent shall be
indemnified against expenses actually and reasonably incurred by the agent in
connection therewith.
SECTION 5. REQUIRED APPROVAL.
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Except as provided in Section 4 of this Article, any indemnification
under this Article shall be made by the Corporation only if authorized in the
specific case on a determination that indemnification of the agent is proper in
the circumstances because the agent has met the applicable standard of conduct
set forth in Sections 2 or 3 of this Article, by any of the following:
(a) A majority vote of a quorum consisting of directors who
are not parties to the proceeding;
(b) If a quorum as described in Section 5(a) of this Article
is not obtainable, by independent legal counsel in a written opinion;
(c) Approval by the affirmative vote of a majority of the
shares of the Corporation represented and voting at a duly held meeting at which
quorum is present (which shares voting also constitute at least a majority of
the required quorum) or by the written consent of holders of a majority of the
required quorum) or by the written consent of holders of a majority of the
outstanding shares entitled to vote. For this purpose, the shares owned by the
person to be indemnified shall not be considered outstanding or entitled to vote
thereon; or
(d) The court in which the proceeding is or was pending, on
application made by the Corporation or the agent or the attorney or other person
rendering services in connection with the defense, whether or not such
application by the agent, attorney or other person is opposed by the
Corporation.
SECTION 6. ADVANCE OF EXPENSES.
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Expenses incurred in defending any proceeding may be advanced by the
Corporation before the final disposition of the proceeding on receipt of an
undertaking by or on behalf of the agent to repay the amount of the advance if
it shall be determined ultimately that the agent is not entitled to be
indemnified as authorized in this Article.
SECTION 7. OTHER CONTRACTUAL RIGHTS.
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The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office, to the extent such additional rights to
indemnification are authorized in the Certificate of Incorporation of the
Corporation. The rights to indemnity hereunder shall continue as 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 the person. Nothing
contained in this Article shall affect any right to indemnification to which
persons other than directors and officers of this Corporation or any subsidiary
hereof may be entitled by contract or otherwise.
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SECTION 8. LIMITATIONS.
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No indemnifications or advance shall be made under this Article, except
as provided in Section 4 or Section 5(c), in any circumstances where it appears:
(a) That it would be inconsistent with a provision of the
Certificate of Incorporation, a resolution of the shareholders or an agreement
in effect at the time of the accrual of the alleged cause of action asserted in
the proceeding in which the expenses were incurred or other amounts were paid,
which prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
SECTION 9. INSURANCE.
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The Corporation shall, if so authorized by the Board, purchase and
maintain insurance on behalf of any agent of the Corporation or its subsidiaries
selected by the Board in its authorization, or designated in the policy of
insurance so purchased, against such liabilities asserted against or incurred by
the agent (in his capacity as agent or arising out of his status as such) as may
be set forth in such authorization or in such policy of insurance, in each case
upon such terms and conditions, and subject to such limitations, as the Board in
its sole and absolute discretion determines to be appropriate, its general
authorization to purchase or maintain any policy of insurance to conclusively
establish that it has determined all of the terms, conditions, and limitations
set forth in the policy of insurance in the form so purchased to be appropriate,
and the power to purchase and maintain such insurance shall exist regardless of
whether the Corporation would have the power to indemnify the agent against the
insured liabilities under the provision of this Article. The fact that the
Corporation owns all or a portion of the shares of the company issuing a policy
of insurance shall not render this subdivision inapplicable if either of the
following conditions are satisfied:
(a) the purchase and maintenance of the policy is authorized
by the Certificate of Incorporation of the association and is limited to the
extent provided in subdivision (d) of Section 204 of the General Corporation
Law;
(b(1) the company issuing the insurance policy is organized, licensed
and operated in a manner that complies with the insurance laws and regulations
applicable to its jurisdiction of organization, (2) the company issuing the
policy provides procedures for processing claims that do not permit the company
to be subject to the direct control of the Corporation, and (3) the policy
issued provides for some manner of risk sharing between the issuer and purchaser
of the policy, on one hand, and some unaffiliated person or persons, on the
other hand, such as by providing for more than one unaffiliated owner of the
company issuing the policy or by providing that a portion of the coverage
furnished shall be obtained from some unaffiliated insurer or re-insurer.
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(c) Section 145 of the Delaware General Corporation Law
provides as follows:
"ss.145. Indemnification of officers, directors, employees and agents;
insurance.
(a) A corporation shall have 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, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) 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 (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or 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, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
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, of 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 interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have 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 or suit 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 (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
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 and except 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 to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, 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.
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(d) Any indemnification under subsections (a) and (b) of this section
(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 present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance
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, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by 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 under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting 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 power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
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(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as 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.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits required by Item 601 of Regulation S-B, and an
index thereto, are attached.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) (i) To file, during any period in which offers or sales
are being made, a post- effective amendment to this registration statement:
(ii) 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;
(iii) 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.
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(iv) 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) 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.
(e) To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a- 3 or Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information
(h) That 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 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 shall
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 Company
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
authorize, in the City of Carlsbad, on December 6, 2002.
Fonefriend, Inc.
(formerly known as Universal Broadband Networks, Inc.)
By: /s/ Jackelyn Giroux
--------------------------------
Jackelyn Giroux, President
Special Power of Attorney
The undersigned constitute and appoint Jackelyn Giroux their true and
lawful attorney-in-fact and agent with full power of substitution, for him and
in his name, place, and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this Form S-8 Registration
Statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the U.S. Securities and Exchange Commission, granting
such attorney-in-fact the full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such attorney-in-fact may
lawfully do or cause to be done by virtue hereof.
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 date indicated:
Signature Title Date
/s/ Jackelyn Giroux President/Director December 6, 2002
/s/ Dennis H. Johnston Secretary/Treasurer/Chief December 6, 2002
Financial Officer (principal
financial and accounting officer)
Director
/s/ Francois Van Der Hoeven Director December 6, 2002
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EXHIBIT INDEX
Number Description
4.1 2002 Non-Employee Director and Consultant Retainer Stock Plan
and Employee Stock Incentive Plan (see below).
5. Opinion Re: Legality (see below).
23.1 Consent of Accountants (see below).
23.3 Consent of Counsel (see below).
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