U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 POS
(Amendment No. 2)
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FREESTAR TECHNOLOGY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Nevada 88-0446457
(State of Incorporation) (I.R.S. Employer ID No.)
Calle Fantino Falco, J.A. Baez Building, 2nd Floor, Santo Domingo,
Dominican Republic
(Address of principal executive offices)
Amended and Restated Non-Employee Directors and Consultants Retainer
Stock Plan (Amendment No. 2)
Amended and Restated Stock Incentive Plan (Amendment No. 2)
(Full title of the Plans)
Brian F. Faulkner, A Professional Law Corporation,
31877 Del Obispo Street, Suite 205, San Juan Capistrano, California 92675
(Name and address of agent for service)
(949) 240-1361
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities Registered Maximum Aggregate Registration
to be Offering Offering Fee
Registered Price Per Price
Share
Common Stock 15,000,000 (1) $0.001 (2) $ 15,000 $1.38
Common Stock 25,000,000 (3) $0.12 (4) $3,000,000 $276.00
(1)(2) The Amended and Restated Non-Employee Directors and Consultants
Retainer Stock Plan (Amendment No. 2) authorizes a total of 50,000,000
shares, 35,000,000 of which have already been registered under Form S-
8's filed on November 9, 2001 and December 11, 2002. This offering
price per share is calculated under Rule 457(h)(1) pursuant to the
deemed issuance price as set forth in this plan (see Exhibit 4.1 to this
Form S-8).
(3)(4) The Amended and Restated Stock Incentive Plan (Amendment No. 2)
authorizes a total of 50,000,000 shares, 25,000,000 of which have
already been registered under Form S-8's filed on November 9, 2001 and
December 11, 2002. This offering price per share is calculated under
Rule 457(h)(1) (reference to Rule 457(c)) as the exercise price of the
options is not known: average of the bid and ask prices as of May 28,
2003 (within 5 business days prior to the date of filing this
registration statement). See this plan, attached as Exhibit 4.2 to this
Form S-8.
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 shall 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 shall 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 latest annual report on Form 10-KSB for the
fiscal year ended June 30, 2002, filed on November 13, 2002.
(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 financial statements contained in the Form 10-KSB referred
to in (a) above, which consist of a Form 8-K filed on September 25,
2002, a Form 8-K/A filed on October 22, 2002, a Form 10-QSB filed
on November 29, 2002, a Form 8-K/A filed on December 3, 2002, a
Form 8-K/A filed on December 24, 2002, a Form 8-K/A filed on
February 26, 2002, a Form 8-K filed on February 28, 2002, a Form
10-QSB filed on March 12, 2003, a Form 8-K filed on April 9, 2003,
a Form 8-K filed on April 24, 2003, a Form 8-K/A filed on April 25,
2003, a Form 8-K filed on May 1, 2003, a Form 8-K filed on May 5,
2003, a Form 8-K filed on May 9, 2003, a Form 10-QSB filed on May
20, 2003, a Form 8-K filed on May 30, 2003, and a Form 8-K/A filed
on June 2, 2003.
(c) A description of the securities of the Registrant is contained
in a Form 10-SB filed on January 3, 2000.
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, shall 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.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Other than as set forth below, 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.
Brian F. Faulkner, A Professional Law Corporation, counsel for the
Registrant as giving an opinion on the validity of the securities being
registered, will be receiving 1,400,000 shares of common stock of the
Registrant. These shares will be paid pursuant to the Registrant's Non-
Employee Directors and Consultants Retainer Stock Plan (Amendment No. 2)
under this Form S-8 in exchange for legal services previously rendered,
or to be rendered, during the current and upcoming fiscal years of the
Registrant under attorney-client contracts. These legal services
consist of advice and preparation work in connection with reports of the
Registrant under the Securities Exchange Act of 1934, and other general
corporate and securities work for the company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Limitation of Liability.
The articles of incorporation of the Registrant provide the
following with respect to liability of an officer and director:
"A director or officer of the Corporation shall not be personally
liable to this Corporation or its stockholders for damages for breach of
fiduciary duty as a director or officer, but this Article shall not
eliminate or limit the liability of a director or officer for (i) acts
or omissions which involve international misconduct, fraud or a knowing
violation of the law or (ii) the unlawful payment of dividends. Any
repeal or modification of the Article by stockholders of the Corporation
shall be prospective only, and shall not adversely affect any limitation
on the personal liability of a director or officer of the Corporation
for acts of omissions prior to such repeal of modification."
Indemnification.
(a) Articles of Incorporation.
The articles of incorporation of the Registrant provide the
following with respect to indemnification:
"Every person who was or is a party to, or is threatened to be made
a party to, or is involved in any such action, suit or proceeding,
whether civil, criminal, administrative or investigative, by the reason
of the fact that he or she or a person with whom he or she is a legal
representative, is or was a director of the Corporation, or who is
serving at the request of the Corporation as a director or officer of
another corporation, or is a representative in a partnership, joint
venture, trust or other enterprise, shall be indemnified and held
harmless to the fullest extent legally permissible under the laws of the
State of Nevada from time to time against all expenses, liability and
loss (including attorney's fees, judgments, fines, and amounts paid or
to be paid in a settlement) reasonably incurred or suffered by him or
her in connection therewith. Such right of Page 2 of 4 indemnification
shall be a contract right and which may be enforced in any manner
desired by such person. The expenses of officers and directors incurred
in defending a civil suit or proceeding must be paid by the Corporation
as incurred and in advance of the final disposition of the action, suit,
or proceeding, under receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it is ultimately determined
by a court of competent jurisdiction that he or she is not entitled to
be indemnified by the Corporation. Such right of indemnification shall
not be exclusive of any other right of such directors, officers or
representatives may have or hereafter acquire, and without limiting the
generality of such statement, they shall be entitled to their respective
rights of indemnification under any bylaw, agreement, vote of
stockholders, provision of law, or otherwise, as well as their rights
under this article.
Without limiting the application of the foregoing, the Board of
Directors may adopt By-Laws from time to time without respect to
indemnification, to provide at all times the fullest indemnification
permitted by the laws of the State of Nevada, and may cause the
Corporation to purchase or maintain insurance on behalf of any person
who is or was a director or officer."
(b) Bylaws.
The bylaws of the Registrant provide the following with respect to
indemnification:
"SECTION 1. Every person who was or is a party to, or is threatened
to be made a party to, or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of
the fact that he, or a person of who he is the legal representative, is
or was a director or officer of the corporation, or is or was serving at
the request of the corporation as a director or officer of another
corporation, or as its representative in a partnership, joint venture,
trust or other enterprise, shall be indemnified and held harmless to the
fullest extent legally permissible under the laws of the State of Nevada
from time to time against all expenses, liability and loss (including
attorneys' fees, judgments, fines and amounts paid or to be paid in
settlement) reasonably incurred or suffered by him in connection
therewith. Such right of indemnification shall be a contract right which
may be enforced in any manner desired by such person. The expenses of
officers and directors incurred in defending a civil or criminal action,
suit or proceeding must be paid by the corporation as they are incurred
and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it is ultimately determined
by a court of competent jurisdiction that he is not entitled to be
indemnified by the corporation. Such right of indemnification shall not
be exclusive of any other right which such directors, officers or
representatives may have or hereafter acquire, and, without limiting the
generality of such statement, they shall be entitled to their respective
rights of indemnification under 9 any bylaw, agreement, vote of
stockholders, provision of law, or otherwise, as well as their rights
under this Article.
SECTION 2. The Board of Directors may cause the corporation to
purchase and maintain insurance on behalf of any person who is or was a
director or officer of the corporation, or is or was serving at the
request of the corporation as a director or officer of another
corporation, or as its representative in a partnership, joint venture,
trust or other enterprise against any liability asserted against such
person and incurred in any such capacity or arising out of such status,
whether or not the corporation would have the power to indemnify such person."
(c) Nevada Revised Statutes.
"NRS 78.7502 Discretionary and mandatory indemnification of
officers, directors, employees and agents: General provisions.
1. A corporation may 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, except an action by or in the right of the corporation,
by reason of the fact that he 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 him in
connection with the action, suit or proceeding if he:
(a) Is not liable pursuant to NRS 78.138 [directors and officers
duty to exercise their powers in good faith and with a view to the
interests of the corporation]; or
(b) Acted in good faith and in a manner which he 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 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, does not, of itself, create a presumption that the person is
liable pursuant to NRS 78.138 or did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, or that, with respect to any criminal
action or proceeding, he had reasonable cause to believe that his
conduct was unlawful.
2. A corporation may 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 he 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 amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him
in connection with the defense or settlement of the action or suit if he:
(a) Is not liable pursuant to NRS 78.138; or
(b) Acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the
corporation.
Indemnification may not be made for any claim, issue or matter as to
which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to
the corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court in which the action or suit
was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for such expenses
as the court deems proper.
3. To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections 1
and 2, or in defense of any claim, issue or matter therein, the
corporation shall indemnify him against expenses, including attorneys'
fees, actually and reasonably incurred by him in connection with the
defense."
"NRS 78.751 Authorization required for discretionary
indemnification; advancement of expenses; limitation on indemnification
and advancement of expenses.
1. Any discretionary indemnification pursuant to NRS 78.7502,
unless ordered by a court or advanced pursuant to subsection 2, may be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or
agent is proper in the circumstances. The determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum
consisting of directors who were not parties to the action, suit or
proceeding;
(c) If a majority vote of a quorum consisting of directors who were
not parties to the action, suit or proceeding so orders, by
independent legal counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the
action, suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion.
2. The articles of incorporation, the bylaws or an agreement
made by the corporation may provide that the expenses of officers and
directors incurred in defending a civil or criminal action, suit or
proceeding must be paid by the corporation as they are incurred and in
advance of the final disposition of the action, suit or proceeding, upon
receipt of an undertaking by or on behalf of the director or officer to
repay the amount if it is ultimately determined by a court of competent
jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this subsection do not affect any rights
to advancement of expenses to which corporate personnel other than
directors or officers may be entitled under any contract or otherwise by law.
3. The indemnification pursuant to NRS 78.7502 and advancement of
expenses authorized in or ordered by a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under
the articles of incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, for either an
action in his official capacity or an action in another capacity
while holding his office, except that indemnification, unless
ordered by a court pursuant to NRS 78.7502 or for the advancement
of expenses made pursuant to subsection 2, may not be made to or on
behalf of any director or officer if a final adjudication
establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was
material to the cause of action.
(b) Continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the heirs,
executors and administrators of such a person."
"NRS 78.752 Insurance and other financial arrangements against
liability of directors, officers, employees and agents.
(1) A corporation may purchase and maintain insurance or make
other financial arrangements 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 for any liability asserted against him and
liability and expenses incurred by him in his capacity as a director,
officer, employee or agent, or arising out of his status as such,
whether or not the corporation has the authority to indemnify him
against such liability and expenses.
(2) The other financial arrangements made by the corporation
pursuant to subsection 1 may include the following:
(i) The creation of a trust fund.
(ii) The establishment of a program of self-insurance.
(iii) The securing of its obligation of indemnification by
granting a security interest or other lien on any assets of the
corporation.
(iv) The establishment of a letter of credit, guaranty or surety.
No financial arrangement made pursuant to this subsection may provide
protection for a person adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable for intentional
misconduct, fraud or a knowing violation of law, except with respect to
the advancement of expenses or indemnification ordered by a court.
(3) Any insurance or other financial arrangement made on behalf of
a person pursuant to this section may be provided by the corporation or
any other person approved by the board of directors, even if all or part
of the other person's stock or other securities is owned by the
corporation.
(4) In the absence of fraud:
(i) The decision of the board of directors as to the propriety of
the terms and conditions of any insurance or other financial arrangement
made pursuant to this section and the choice of the person to provide
the insurance or other financial arrangement is conclusive; and
(ii) The insurance or other financial arrangement:
(A) Is not void or voidable; and
(B) Does not subject any director approving it to personal
liability for his action, even if a director approving the
insurance or other financial arrangement is a beneficiary of
the insurance or other financial arrangement.
(5) A corporation or its subsidiary which provides self-insurance
for itself or for another affiliated corporation pursuant to this
section is not subject to the provisions of Title 57 of NRS."
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) (1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(iii) 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;
(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 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 will be governed by the final adjudication of
such issue.
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 Santo Domingo,
Dominican Republic, on June 2, 2003.
FreeStar Technology Corporation
By: /s/ Paul Egan
Paul Egan, President
Special Power of Attorney
The undersigned constitute and appoint Paul Egan 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/ Paul Egan President/Chief Executive June 2, 2003
Paul Egan Officer/Director
/s/ Ciaran Egan Secretary/Treasurer/Chief June 2, 2003
Ciaran Egan Financial Officer (principal
financial and accounting
officer)/Director
/s/ Fionn Stakelum Director June 2, 2003
Fionn Stakelum
EXHIBIT INDEX
Number Description
4.1 Amended and Restated Non-Employee Directors and Consultants
Retainer Stock Plan (Amendment No. 2), dated May 25, 2003
(see below).
4.2 Amended and Restated Stock Incentive Plan (Amendment No. 2),
dated May 25, 2003 (see below).
5 Opinion Re: Legality (see below).
23.1 Consent of Accountants (see below).
23.3 Consent of Counsel (see below).
24 Special Power of Attorney (see signature page).