INITIAL DECISION AS TO RESPONDENT VOICEIQ, INC. (N/K/A YOHO RESOURCES, INC.) OCTOBER 22, 2010
IN THE MATTER OF:
VIKONICS, INC., VISION TEN, INC., VIZACOM, INC., VOICEFLASH NETWORKS, INC. (d/b/a THE DATAFLASH CORP.), VOICEIQ, INC. (n/k/a YOHO RESOURCES, INC.), VOYUS, LTD., and VSI HOLDINGS, INC.
APPEARANCES: David S. Frye, Paul W. Kisslinger, and Neil J. Welch, Jr., for the Division of Enforcement, Securities and Exchange Commission.
Guy P. Lander and Barry S. Neuman for Respondent Yoho Resources, Inc. (f/k/a VoiceIQ, Inc.)
BEFORE: Brenda P. Murray, Chief Administrative Law Judge.
The Securities and Exchange Commission (Commission) issued its Order Instituting Proceedings (OIP) on June 1, 2010, pursuant to Section 12(j) of the Securities Exchange Act of 1934 (Exchange Act), against VoiceIQ, Inc. (VoiceIQ) (n/k/a Yoho Resources, Inc.) (Yoho), and others.1 In relevant part, the OIP alleges that VoiceIQ is an Ontario corporation with a class of securities registered with the Commission pursuant to Section 12(g) of the Exchange Act and that it has failed to file any periodic reports with the Commission for any period after it filed a Form 20-FR registration statement on July 13, 2001. The OIP charges that Respondents, including VoiceIQ, failed to comply with Section 13(a) of the Exchange Act and Exchange Act Rules 13a-1 and 13a-13 or 13a-16. The Division of Enforcement (Division) promptly notified Yoho of the opportunity to inspect and copy its investigative file.
In its Answer filed on June 14, 2010, Respondent denies many of the allegations in the OIP. It states that, since December 2004, Yoho has been a corporation located in Calgary, Alberta, Canada, and that, prior to that date, it operated under the name VoiceIQ, located in Markham, Ontario, Canada. (Answer at 2-3.) Respondent admits that it has not filed a periodic report since a Form 6-K, Report of Foreign Issuer, was filed on September 5, 2001. (Answer at 2.) Respondent denies that its stock, (symbol “YOHOF.PK”) was traded on the over the counter markets as of May 19, 2010, but admits that “Yoho’s stock price is reported in the Pink Sheets in the ‘Grey Market.”’ (Answer at 4.) Yoho explained that, until it received the OIP, its management had no knowledge that its corporate predecessor had registered a class of securities pursuant to Section 12 of the Exchange Act and that the Division had rejected its offer to withdraw immediately from Section 12 registration on the grounds that the OIP had been instituted. (Answer at 5.)
At a telephonic prehearing conference on June 25, 2010, Yoho insisted that its stock did not have market makers and is not traded on any market and that it could not prevent quotes in the “Grey Market” even if its registration were revoked. (Tr. 8.) Yoho’s oral motion to dismiss the proceeding contingent on its filing a Form 15 was denied. (Tr. 11.) The parties were given leave to file cross-motions for summary disposition. (Order of June 28, 2010.)
On July 16, 2010, the Division filed its Motion for Summary Disposition and Brief in Support (Division’s Motion) and the Declaration of David S. Frye in Support of Division of Enforcement’s Motion for Summary Disposition with Exhibits 1 through 12 (Frye Declaration).
On August 2, 2010, Yoho filed a Cross-Motion for Summary Disposition and Brief in Support of Cross-Motion and in Opposition to Division of Enforcement’s Motion for Summary Disposition with four exhibits (Yoho’s Opposition and Cross-Motion) and the Declaration of Brian McLachlan in Support of Yoho’s Motion for Summary Disposition with four exhibits (McLachlan Declaration). The Division filed a Reply Brief in support of its motion and in opposition to Yoho’s Cross-Motion on August 6, 2010. Yoho submitted a Reply Brief in support of its Cross-Motion on August 25, 2010.
On September 24, 2010, the Division filed a Supplement to the Record (Record Supplement) with the Declaration of Neil J. Welch, Jr., and the Declaration of Cecile F. Peters (Peters Declaration) in response to an Order Requiring Division of Enforcement to Supplement the Record issued September 16, 2010.2 The Division acknowledged that the OIP is in error and that VoiceIQ filed a Form 20-F, Annual Report Pursuant to Section 13 or 15(d) of the Exchange Act, not a Form 20-FR, Registration Statement Pursuant to Section 12(b) or (g) of the Exchange Act, on July 13, 2001. (Record Supplement at 1; Frye Declaration, Exhibit 1.) The Record Supplement also states that: (1) Yoho’s predecessor, BCB Voice Systems, Inc. (BCB Voice Systems), filed a Form 20-FR on April 6, 1999, which was assigned the Central Index Key (CIK) No. 1084142; (2) BCB Voice Systems was assigned CIK No. 1070931 when it made filings as a foreign private issuer under Exchange Act Rule 12g3-2(b) and was exempt from registering its securities under Section 12(g) of the Exchange Act; and (3) VoiceIQ was assigned CIK No. 1141782 when it filed a Form 20-F on July 13, 2001 and a Form 15 on July 7, 2010. (Record Supplement at 1-3; Peters Declaration Exhibit 2; Frye Declaration Exhibit 3.) The Division states that, as a foreign private issuer that registered pursuant to Form 20-F, Yoho was required by Rule 13a-16 to furnish quarterly and other reports under cover of Form 6-K under certain conditions and because Rule 13a-16 required Yoho to file Forms 6-K, Yoho was exempt from the requirement in Rule 13a-13 of filing quarterly reports on Form 10-Q. (Record Supplement at 3.) On September 30, 2010, Yoho filed a Response to the Division’s Record Supplement (Yoho’s Response).
Rule 250(a) of the Commission’s Rules of Practice provides that, after a respondent’s answer has been filed and documents have been made available to that respondent for inspection and copying, a party may make a motion for summary disposition of any or all allegations of the OIP with respect to that respondent. The facts of the pleadings of the party against whom the motion is made shall be taken as true, except as modified by stipulations or admissions made by that party, by uncontested affidavits, or by facts officially noted pursuant to Rule 323 of the Commission’s Rules of Practice. The hearing officer may grant the motion for summary disposition if there is no genuine issue with regard to any material fact and the party making the motion is entitled to summary disposition as a matter of law.