U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8 POS
(AMENDMENT NO. 4)
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FREESTAR TECHNOLOGY CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
NEVADA 88-0446457
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
CALLE FANTINO FALCO, J.A. BAEZ BUILDING, 2ND FLOOR,
SANTO DOMINGO, DOMINICAN REPUBLIC
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(Address of Principal Executive Offices)
AMENDED AND RESTATED NON-EMPLOYEE DIRECTORS AND
CONSULTANTS RETAINER STOCK PLAN (AMENDMENT NO. 4);
AMENDED AND RESTATED STOCK INCENTIVE PLAN (AMENDMENT NO. 3)
-----------------------------------------------------------
(Full Title of the Plans)
Paul Egan, President
FreeStar Technology Corporation
Calle Fantino Falco, J.A. Baez Building, 2nd Floor
Santo Domingo, Dominican Republic
(809) 503-5911
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(Name, Address, and Telephone Number of Agent for Service)
With a copy to:
Brian F. Faulkner, A Professional Law Corporation
27127 Calle Arroyo, Suite 1923
San Juan Capistrano, California 92675
(949) 240-1361
CALCULATION OF REGISTRATION FEE
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Title of Securities to Amount to be Proposed Maximum Proposed Aggregate Amount of
be Registered Registered Offering Price Per Offering Price Registration Fee
Share
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Common Stock 15,000,000 (1) $0.275 (2) $4,125,000 $522.64
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Common Stock 20,000,000 (3) $0.275 (4) $5,500,000 $696.85
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(1)(2) The Amended and Restated Non-Employee Directors and Consultants Retainer
Stock Plan (Amendment No. 4) authorizes a total of 75,000,000 shares, 60,000,000
of which have already been registered under a Form S-8's filed on November 9,
2001, December 11, 2002, June 2, 2003, and April 19, 2004. This offering price
per share is calculated under Rule 457(h)(1) (reference to Rule 457(c)) as the
offering price is not known: average of the bid and ask prices as of January 25,
2005 (within 5 business days prior to the date of filing this registration
statement). See Amended and Restated Non-Employee Directors and Consultants
Retainer Stock Plan, attached as Exhibit 4.1 to this Form S-8 POS.
(3)(4) The Amended and Restated Stock Incentive Plan (Amendment No.3) authorizes
a total of 70,000,000 shares, 50,000,000 of which have already been registered
under Form S-8's filed on November 9, 2001, December 11, 2002, and June 2, 2003.
This offering price per share is calculated under Rule 457(h)(1) (reference to
Rule 457(c)) as the offering price is not known: average of the bid and ask
prices as of January 25, 2005 (within 5 business days prior to the date of
filing this registration statement). See Amended and Restated Stock Incentive
Plan (Amendment No.3), attached as Exhibit 4.2 to this Form S-8 POS.
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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, 2004, filed on October 27, 2004, and a Form
10-KSB/A filed on October 28, 2004.
(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 10-QSB filed on November 16, 2004.
(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.
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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, has previously received shares of common stock pursuant to the
Registrant's Non-Employee Directors and Consultants Retainer Stock Plan, as
amended, under Form S-8's in exchange for legal services previously rendered,
and to be rendered in the future, to the Registrant under attorney-client
contracts. These legal services consist of advice and preparation work in
connection with reports of the Registrant filed under the Securities Exchange
Act of 1934, and other general corporate and securities work for the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
LIMITATION OF LIABILITY.
(a) ARTICLES OF INCORPORATION AND BYLAWS.
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."
The Registrant's bylaws do not contain any provisions with regard to
the liability of an officer and director.
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(b) NEVADA REVISED STATUTES.
"NRS 78.138 DIRECTORS AND OFFICERS: EXERCISE OF POWERS; PERFORMANCE OF
DUTIES; PRESUMPTIONS AND CONSIDERATIONS; LIABILITY TO CORPORATION AND
STOCKHOLDERS.
(7) Except as otherwise provided in NRS 35.230, 90.660, 91.250,
452.200, 452.270, 668.045 and 694A.030, a director or officer is not
individually liable to the corporation or its stockholders for any damages as a
result of any act or failure to act in his capacity as a director or officer
unless it is proven that:
(a) His act or failure to act constituted a breach of his fiduciary
duties as a director or officer; and
(b) His breach of those duties involved intentional misconduct, fraud
or a knowing violation of law."
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
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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 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,
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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.
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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."
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"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
9
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
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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.
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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 Santo Domingo, Dominican Republic, on January 21,
2005.
FREESTAR TECHNOLOGY CORPORATION
By: /S/ PAUL EGAN
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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 Officer/Director January 21, 2005
- --------------
Paul Egan
/S/ CIARAN EGAN
- ---------------- Secretary/Treasurer/Chief Financial Officer January 21, 2005
Ciaran Egan (principal financial and accounting
officer)/Director
/S/ FIONN STAKELUM Director January 21, 2005
- -------------------
Fionn Stakelum
/S/ CARL M. HESSEL Director January 21, 2005
- -------------------
Carl M. Hessel
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EXHIBIT INDEX
NUMBER DESCRIPTION
- ------ -----------
4.1 Amended and Restated Non-Employee Directors and Consultants
Retainer Stock Plan (Amendment No. 4), dated December 20, 2004
(filed herewith).
4.2 Amended and Restated Stock Incentive Plan (Amendment No. 3),
dated December 20, 2004 (filed herewith).
5 Opinion of Brian F. Faulkner, A Professional Law Corporation
(filed herewith).
23.1 Consent of Russell Bedford Stefanou Mirchandani LLP (filed
herewith).
23.2 Consent of Stonefield Josephson, Inc. (filed herewith).
23.3 Consent of Brian F. Faulkner, A Professional Law Corporation
(filed herewith).
24 Special Power of Attorney (see signature page).
13