AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 8, 2004
REGISTRATION NO. _______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FONEFRIEND, INC.
----------------
(Exact name of Registrant as specified in its charter)
Delaware 33-0611753
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
14545 Friar Street, Suite 103
-----------------------------
Van Nuys, California 91411
(Address of Principal Executive Offices, including ZIP Code)
2004 Non-Qualified Stock Compensation Plan
(Full title of the plan)
The Company Corporation
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2711 Centerville Road, Suite 400
Wilmington, DE 19808
(Name and address of agent for service)
(800) 818-0204
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(Telephone number, including area code, of agent for service)
Harold H. Martin, Esq.
Law Offices Of Harold H. Martin, P.A.
17111 Kenton Drive, Suite 204B
Cornelius, North Carolina 28031
--------------------------------
(All Communications To)
CALCULATION OF REGISTRATION FEE
TITLE OF PROPOSED PROPOSED
SECURITIES AMOUNT OF MAXIMUM MAXIMUM AMOUNT OF
TO BE SHARES OFFERING AGGREGATE REGISTRATION
REGISTERED TO BE REGISTERED PRICE PER OFFERING FEE
SHARE PRICE(1)
---------- ---------------- --------- --------- ------------
$.001 par value
common stock 4,000,000 $ .14 (1) $ 560,000 $ 70.95
$.001 par value 2,000,000 $ .14 (1) $ 280,000 $ 35.48
common stock
underlying stock
options
TOTALS 6,000,000 $ 840,000 $106.43
(1) This calculation is made solely for the purposes of determining the
registration fee pursuant to the provisions of Rule 457(c) under the
Securities Act of 1933, as amended, and is calculated on the basis of the
average of the high and low prices reported on the OTC Bulletin Board as of
April 5, 2004.
PROSPECTUS
FoneFriend, Inc.
6,000,000 Shares of Common Stock
This prospectus relates to the offer and sale by FoneFriend, Inc., a
Delaware corporation, of 6,000,000 shares of its $.001 par value per share
common stock to employees, directors, officers, consultants, advisors and other
persons associated with FoneFriend, Inc. pursuant to the 2004 Non-Qualified
Stock Compensation Plan (the "Stock Plan"). Pursuant to the Stock Plan,
FoneFriend, Inc. is registering hereunder and then issuing, upon receipt of
adequate consideration therefore, 4,000,000 shares of common stock and 2,000,000
options to purchase shares of common stock, for a total registration and
issuance of 6,000,000 shares of common stock.
The common stock is not subject to any restriction on transferability.
Recipients of shares other than persons who are "affiliates" of FoneFriend, Inc.
within the meaning of the Securities Act of 1933 (the "Act") may sell all or
part of the shares in any way permitted by law, including sales in the
over-the-counter market at prices prevailing at the time of such sale.
Approximately 75% of the common stock and options will be offered for sale to
"affiliates" of FoneFriend, Inc. An affiliate is summarily, any director,
executive officer or controlling shareholder of FoneFriend, Inc. or any one of
its subsidiaries. An "affiliate" of FoneFriend, Inc. is subject to Section
16(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
The common stock is traded on the OTC Bulletin Board under the symbol "FFRD."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is April 8, 2004
This prospectus is part of a registration statement which was filed and
became effective under the Securities Act of 1933, as amended (the "Securities
Act"), and does not contain all of the information set forth in the registration
statement, certain portions of which have been omitted pursuant to the rules and
regulations promulgated by the U.S. Securities and Exchange Commission (the
"Commission") under the Securities Act. The statements in this prospectus as to
the contents of any contract or other documents filed as an exhibit to either
the registration statement or other filings by FoneFriend, Inc. with the
Commission are qualified in their entirety by reference thereto.
A copy of any document or part thereof incorporated by reference in this
prospectus but not delivered herewith will be furnished without charge upon
written or oral request. Requests should be addressed to: FoneFriend, Inc.,
14545 Friar Street, Suite 103, Van Nuys, California 91411. FoneFriend, Inc.'s
telephone number is (818) 376-1616.
FoneFriend, Inc. is subject to the reporting requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports and other information with the Commission. These reports, as well as
the proxy statements and other information filed by FoneFriend, Inc. under the
Exchange Act may be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington D.C. 20549.
In addition, the Commission maintains a World Wide Website on the Internet at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission
No person has been authorized to give any information or to make any
representation, other than those contained in this prospectus, and, if given or
made, such other information or representation must not be relied upon as having
been authorized by FoneFriend, Inc. This prospectus does not constitute an
offer or a solicitation by anyone in any state in which such is not authorized
or in which the person making such is not qualified or to any person to whom it
is unlawful to make an offer or solicitation.
Neither the delivery of this prospectus nor any sale made hereunder shall,
under any circumstances, create any implication that there has not been a change
in the affairs of FoneFriend, Inc. since the date hereof.
TABLE OF CONTENTS
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS 6
Item 1. The Plan Information 6
Item 2. Registrant Information and Employee Plan Annual Information 9
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT 10
Item 3. Incorporation of Documents by Reference 10
Item 4. Description of Securities 10
Item 5. Interests of Named Experts and Counsel 10
Item 6. Indemnification of Officers, Directors, Employees and Agents 11
Item 7. Exemption from Registration Claimed 11
Item 8. Exhibits 11
Item 9. Undertakings 12
SIGNATURES 14
EXHIBIT INDEX 15
PART 1
INFORMATION REQUIRED IN THE SECTION 10(A)
PROSPECTUS
ITEM 1. THE PLAN INFORMATION.
THE COMPANY
FoneFriend, Inc. has its principal executive offices at 14545 Friar Street,
Suite 103, Van Nuys, California 91411. FoneFriend, Inc.'s telephone number is
(818) 376-1616.
PURPOSE
FoneFriend, Inc. will issue common stock and award options to employees,
directors, officers, consultants, advisors and other persons associated with
FoneFriend, Inc. pursuant to the Stock Plan, which has been approved by the
Board of Directors of FoneFriend, Inc. The Stock Plan is intended to provide a
method whereby FoneFriend, Inc. may be stimulated by the personal involvement of
its employees, directors, officers, consultants, advisors and other persons in
FoneFriend, Inc.'s business and future prosperity, thereby advancing the
interests of FoneFriend, Inc. and all of its shareholders. A copy of the Stock
Plan has been filed as an exhibit to this registration statement.
COMMON STOCK AND OPTIONS
The Board has authorized the issuance of 4,000,000 shares of the common
stock and 2,000,000 options to purchase the common stock at the fair market
value thereof to certain of the above-mentioned persons upon effectiveness of
this registration statement.
NO RESTRICTIONS ON TRANSFER
Recipients of shares of common stock will become the record and beneficial
owner of the shares of common stock upon issuance and delivery and are entitled
to all of the rights of ownership, including the right to vote any shares
awarded and to receive ordinary cash dividends on the common stock. Recipients
of options will become the record and beneficial owner of said options and have
the right to exercise them at a price equal to the fair market value per share
of the underlying shares of common stock and receive such shares of common
stock.
TAX TREATMENT TO THE RECIPIENTS
The common stock and options are not qualified under Section 401(a) of the
Internal Revenue Code. A recipient, therefore, will be required for federal
income tax purposes to recognize compensation during the taxable year of
issuance unless the shares and options are subject to a substantial risk of
forfeiture. Accordingly, absent a specific contractual provision to the
contrary, the recipient will receive compensation taxable at ordinary rates
equal to the fair market value of the shares and the options on the date of
receipt since there will be no substantial risk of forfeiture or other
restrictions on transfer. Each recipient is urged to consult his tax advisors on
this matter.
TAX TREATMENT TO THE COMPANY
The amount of income recognized by a recipient hereunder in accordance with
the foregoing discussion will be a tax deductible expense by FoneFriend, Inc.
for federal income tax purposes in the taxable year of FoneFriend, Inc. during
which the recipient recognizes income.
RESTRICTIONS ON RESALE
In the event that an affiliate of FoneFriend, Inc. acquires shares of
common stock or options hereunder, the affiliate will be subject to Section
16(b) of the Exchange Act. Further, in the event that any affiliate acquiring
shares hereunder has sold or sells any shares of common stock in the six months
preceding or following the receipt of shares hereunder, any so called "profit",
as computed under Section 16(b) of the Exchange Act, would be required to be
disgorged from the recipient to FoneFriend, Inc. Services rendered have been
recognized as valid consideration for the "purchase" of shares in connection
with the "profit" computation under Section 16(b) of the Exchange Act.
FoneFriend, Inc. has agreed that for the purpose of any "profit" computation
under Section 16(b), the price paid for the common stock issued to affiliates is
equal to the value of services rendered. Shares of common stock acquired
hereunder by persons other than affiliates are not subject to Section 16(b) of
the Exchange Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
A copy of any document or part thereof incorporated by reference in this
registration statement but not delivered with this prospectus or any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Requests should be
addressed to: FoneFriend, Inc., 14545 Friar Street, Suite 103, Van Nuys,
California 91411. The telephone number is (818) 376-1616.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by FoneFriend, Inc., a Delaware corporation (the "Company"),
are incorporated herein by reference:
a. The Company's latest Annual Report on Form 10-KSB for the year ended March
31, 2003, filed with the Securities and Exchange Commission;
b. The reports of the Company filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the
fiscal year ended March 31, 2003; and
c. All other documents filed by the Company after the date of this
registration statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act, prior to the filing of a post-effective amendment to this
registration statement which de-registers 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 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The financial statements of FoneFriend, Inc. are incorporated by reference
in this prospectus as of and for the year ended March 31, 2003 and have been
audited by Henry Schiffer, C.P.A., independent certified public accountant, as
set forth in their report incorporated herein by reference, and are incorporated
herein in reliance upon the authority of said firm as experts in auditing and
accounting.
The Law Offices of Harold H. Martin, P.A. has rendered an opinion on the
validity of the securities being registered. Neither Mr. Martin nor The Law
Offices of Harold H. Martin, P.A. is an affiliate of FoneFriend, Inc.
ITEM 6. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS.
Under Delaware law, a corporation may indemnify its officers, directors,
employees and agents under certain circumstances, including indemnification of
such persons against liability under the Securities Act of 1933, as amended.
Those circumstances include that an officer, director, employee or agent may be
indemnified if the person acted in good faith and in a manner that 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. A true and correct
copy of Section 145 of Chapter 1 of the Delaware General Corporation Law, that
addresses indemnification of officers, directors, employees and agents is
attached hereto as Exhibit 99.1.
Article V of the Articles of Incorporation of FoneFriend, Inc. provides
that the corporation shall indemnify its directors, officers, employees, and
agents to the fullest extent permitted by law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling an issuer
pursuant to the foregoing provisions, the opinion of the Commission is that such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable.
The effect of indemnification may be to limit the rights of FoneFriend,
Inc. and its stockholders (through stockholders' derivative suits on behalf of
FoneFriend, Inc.) to recover monetary damages and expenses against a director
for breach of fiduciary duty.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ItEM 8. EXHIBITS.
(a) The following exhibits are filed as part of this registration statement
pursuant to Item 601 of the Regulation S-K and are specifically
incorporated herein by reference:
Exhibit No. Title
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5.1 Legal opinion of The Law Offices of Harold H. Martin, P.A.
10.1 2004 Non-Qualified Stock Compensation Plan
23.1 Consent of The Law Offices of Harold H. Martin, P.A.
23.2 Consent of Henry Schiffer, C.P.A.
99.1 Section 145 of Chapter 1 of the Delaware General Corporation
Law addressing indemnification.
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:
(I) include any prospectus required by Section 10(a)(3) of the Securities
Act;
(II) reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set
forth in the registration statement;
(iii) include any material information with respect to the plan of
distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement. Provided, however, that paragraphs (1)(i) and (1)(ii) shall
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability pursuant to the
Securities Act, 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 offered at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
(4) 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 is 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.
(5) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
registrant pursuant to the foregoing provisions, or otherwise, 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 registrant of expenses incurred or paid by a director, officer or
controlling person of 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, 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 is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
The undersigned hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of registrant's annual
report pursuant to Section 13(a) 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies 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 Van Nuys, State of California, on April 6, 2004.
FoneFriend, Inc.
(Registrant)
/s/ Jackelyn Giroux
---------------------
Jackelyn Giroux
President & CEO
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Jackelyn Giroux as his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments, including post-effective amendments,
to this registration statement, and to file the same, with exhibits thereto and
other documents in connection herewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or her substitute or substitutes, may 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 dates indicated.
SIGNATURE TITLE DATE
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Principal Executive Officer:
/s/ JACKELYN GIROUX President, Chief Executive April 6, 2004
--------------------- Officer and a Director
Jackelyn Giroux
Principal Financial Officer
and Principal Accounting
Officer:
/s/ EDWARD N. JONES Chief Financial Officer April 6, 2004
----------------------
Edward N. Jones
Additional Directors:
/s/ GARY A. RASMUSSEN Chairman of the Board, April 6, 2004
------------------------ Director
Gary A. Rasmussen
/s/ DENNIS H. JOHNSTON Secretary, Director April 6, 2004
-----------------------
Dennis H. Johnston
/s/ VIRGINIA PERFILI Director April 6, 2004
----------------------
Virginia Perfili
INDEX TO EXHIBITS
Exhibit No. Title
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5.1 Legal opinion of The Law Offices of Harold H. Martin, P.A.
10.1 2004 Non-Qualified Stock Compensation Plan
23.1 Consent of The Law Offices of Harold H. Martin, P.A.
23.2 Consent of Henry Schiffer, C.P.A.
99.1 Section 145 of Chapter 1 of the Delaware General Corporation
Law addressing indemnification.