As filed with the Securities and
Exchange Commission on May 22, 2002 Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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ADSTAR, INC.
(Exact name of Registrant as specified in its charter)
Delaware 22-3666899
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification
Organization) Number)
4553 Glencoe Avenue, Suite 325
Marina del Rey, California 90292
(310) 577-8255
(Address, including zip code, and telephone number,
including area code, of Registrant's executive offices)
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1999 STOCK OPTION PLAN
(Full title of the Plan)
LESLIE BERNHARD
President and Chief Executive Officer
4553 Glencoe Avenue, Suite 325,
Marina del Rey, California 90292
(310) 577-8255
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Please send copies of all correspondence to:
Stephen A. Zelnick, Esq.
Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, New York 10022-2605
Telephone No. (212) 838-5030
Fax No. (212) 838-9190
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered (1) per Share Price Registration Fee
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Common Stock (par value $.0001 per
share) issuable under the 1999 Stock 500,000 Shares $7.20 (2) $ 691,966(3) $ 63.66
Option Plan (the "Option Plan")
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Common Stock (par value $.0001 per
share) issuable under individual 580,000 Shares $0.95 (4) $ 551,000 $ 50.69
option grants
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Total 1,080,000 Shares $1,242,966 $114.35
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate number of additional
shares as may be added to the plan to adjust for capital changes.
(2) Represents the maximum exercise price under options for 11,111 shares
included in the outstanding options for 447,528 shares granted under the
Option Plan.
(3) Estimated in accordance with rule 457(c) and (h), the proposed maximum
aggregate offering price and the amount of the registration fee is based
upon:
(a) the aggregate actual exercise prices for the 447,528 shares underlying
options granted under the Option Plan and exercisable at prices ranging
from $0.81 to $7.20, and
(b) the average of the high and low sales prices reported on the Nasdaq
SmallCap Market on May 15, 2002, which is $0.95, with respect to 52,472
shares available for grant under the Option Plan.
(4) Estimated in accordance with Rule 457(g) of the Securities Act of 1933,
the proposed maximum offering price is based upon the higher of the price
at which the options may be exercised and the price of shares of common
stock as determined in accordance with Rule 457(c). The average of the
high and low sales prices for our common stock reported on the Nasdaq
SmallCap Market on May 15, 2002, is $0.95.
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ADSTAR, INC.
REGISTRATION STATEMENT ON FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the plan information required by Item 1
of Form S-8 and the statement of availability of registrant information and any
other information required by Item 2 of Form S-8 will be sent or given to
participants under the Option Plan as specified by Rule 428 under the Securities
Act of 1933, as amended (the "Securities Act"). In accordance with Rule 428 and
the requirements of Part I of Form S-8, such documents are not being filed with
the Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act. The Registrant shall maintain a file of such
documents in accordance with the provisions of Rule 428. Upon request, the
Registrant shall furnish to the Commission or its staff a copy or copies of all
of the documents included in such file.
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ADSTAR, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by AdStar with the Commission pursuant to
the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated in
this Prospectus by reference:
(1) Annual Report on Form 10-KSB/A for the fiscal year ended December
31, 2001;
(2) Quarterly Report on Form 10-QSB for the fiscal quarter ended March
31, 2002;
(3) Current Reports on Form 8-K filed on March 25, 2002 and April 9,
2002; and
(4) The description of AdStar's Common Stock, contained in its
Registration Statement on Form 8-A, filed on December 15, 1999,
registering such shares pursuant to Section 12 of the Exchange Act,
including any amendment or report updating such information.
Each document filed subsequent to the date of this Prospectus pursuant to
Section 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 have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated in this Registration Statement by reference and to be a part
hereof from the date of the filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated herein by reference shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement.
AdStar will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any document incorporated
by reference in this Prospectus (other than exhibits unless such exhibits are
specifically incorporated by reference in such documents). Requests should be
directed to Adstar, Inc., 4553 Glencoe Avenue, Suite 325, Marina del Rey,
California 90292, Tel: (310) 577-8255 Attention: Leslie Bernhard, President and
Chief Executive Officer.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the securities offered hereby will be passed upon for
AdStar by Morse, Zelnick, Rose & Lander, LLP ("MZRL"), 450 Park Avenue, New
York, New York 10022. Members of Morse, Zelnick, Rose & Lander, LLP own, in the
aggregate, the following securities: 247,002 shares of our
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common stock; warrants to purchase 100,000 shares of our common stock, all of
which are currently exercisable; and options to purchase 50,000 shares of our
common stock. Stephen A. Zelnick, Esq., a member of Morse, Zelnick, Rose &
Lander, LLP, serves as a director of AdStar.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
PROVISIONS OF OUR CERTIFICATE OF INCORPORATION LIMITING THE RIGHTS TO RECOVER
MONETARY RELIEF AGAINST OUR DIRECTORS FOR A BREACH OF THEIR FIDUCIARY DUTY OF
CARE
Limitation of Director Liability; Indemnification
As authorized by the Delaware General Corporation Law, our Certificate of
Incorporation provides that none of our directors shall be personally liable to
us or to our stockholders for monetary damages for breach of the fiduciary duty
of care as a director, except for:
o for breach of his or her duty of loyalty to us or to our
stockholders,
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law,
o under Section 174 of the Delaware General Corporation Law (relating
to unlawful payments or dividends or unlawful stock repurchases or
redemptions), or
o for any transaction from which he or she derived an improper
personal benefit.
This provision limits our rights and the rights of our stockholders to
recover monetary damages against a director for breach of the fiduciary duty of
care except in the situations described above. This provision does not limit our
rights or the rights of any stockholder to seek injunctive relief or rescission
if a director breaches his duty of care.
Our certificate of incorporation further provides for the indemnification
of any and all persons who serve as our director, officer, employee or agent, to
the fullest extent permitted under the Delaware General Corporation Law.
We have obtained a policy of insurance under which our directors and
officers will be insured, subject to the limits of the policy, against certain
losses arising from claims made against our directors and officers by reason of
any acts or omissions covered under this policy in their capacities as directors
or officers, including liabilities under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, we have been advised that in the
opinion of the SEC such indemnification is against public policy as expressed in
the Securities Act, and is, therefore, unenforceable.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. INDEX TO EXHIBITS
Exhibit No. Description
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4.1 Specimen Stock Certificate. (1)
4.2 Revised Form of Underwriter's Warrant. (2)
4.3 Form of 5-year warrant issued in the Private Placement of units on April
6, 2001. (3)
4.4 Form of 5-year warrant issued in connection with the Private Placement of
AdStar Common Stock during the period of October 2001 through January
2002. (4)
4.5 Form of 3-year warrant issued to C.C.R.I. Corporation in connection with
an agreement between it and AdStar, dated as of October 2, 2001. (4)
4.6 Form of 5-year warrant issued in connection with the Private Placement of
AdStar Common Stock in February 2002.*
5.1 Opinion of Morse, Zelnick, Rose & Lander, LLP as to the validity of the
securities covered by the Registration Statement.*
23.1 Consent of PricewaterhouseCoopers LLP.*
23.2 Consent of Morse, Zelnick, Rose & Lander, LLP (included in Exhibit 5.1).
23.3 Power of Attorney (included in signature page).
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Notes to exhibits
* Filed herewith
(1) Filed as an exhibit with the same number to Registration Statement on Form
SB-2 (No. 333-84209) and incorporated herein by reference.
(2) Filed as an exhibit with the same number to Registration Statement on Form
SB-2 (No. 333-43408) and incorporated herein by reference.
(3) Filed as an exhibit to Registration Statement on Form S-3 (No. 333-60664)
and incorporated herein by reference.
(4) Filed as an exhibit to Registration Statement on Form S-3 (No. 333-81338)
and incorporated herein by reference.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, 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 which,
individually or together, represent a
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fundamental change in the information set forth in the Registration
Statement. 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 additional or changed material information
on the plan of distribution.
(2) That, for determining liability under the Securities Act, treat
each post-effective amendment as a new registration statement relating to
the securities then being offered, and the offering of such securities at
that time shall be deemed to be the initial bonafide offering of such
securities.
(3) To file a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
(4) 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 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 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 Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and authorized this
Registration Statement to be signed on its behalf by the undersigned, in the
City of Los Angeles, State of California on May 21, 2002.
AdStar, Inc.
By: /s/ Leslie Bernhard
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Leslie Bernhard, President
POWER OF ATTORNEY
ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Leslie Bernhard and Stephen A. Zelnick, or any one of
them, 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 pre- or post-effective
amendments to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any one
of them, or their or his or her substitutes, may lawfully do or cause to be done
by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities indicated on May 21, 2002.
Signature Title
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Principal Executive Officer
/s/ Leslie Bernhard President and Chief Executive Officer
---------------------- and Director
Leslie Bernhard
Principal Financial Officer
/s/ Cris Hopkins Acting Chief Financial Officer and
---------------------- Chief Accounting Officer
Cris Hopkins
Directors
/s/ Eli Rousso Director
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Eli Rousso
/s/ Jeffrey Baudo Director
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Jeffrey Baudo
/s/ Stephen A. Zelnick Director
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Stephen A. Zelnick
/s/ Corey Shaker Director
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Corey Shaker
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