As filed with the Securities and Exchange Commission on August 5, 2003
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
----------------------------------------------------
CERISTAR, INC.
(formerly Planet Resources, Inc.)
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
76-0600966
(IRS Employer Identification Number)
50 West Broadway, Suite 1100
Salt Lake City, Utah 84101
(Address of principal executive offices)
David L. Bailey, President & CEO
CeriStar, Inc.
50 West Broadway, Suite 1100
Salt Lake City, Utah 84101
(Name and address of agent for service)
(801) 350-2017
(Telephone number, including area code of agent for service)
2002 Directors, Officers and Consultants
Stock Option, Stock warrant and Stock Award Plan
(Full title of the Plan)
-------------------------------------------------------------
Copy to:
Robert L. Sonfield, Jr.
Sonfield & Sonfield
770 South Post Oak Lane, Suite 435
Houston, Texas 77056-1913
Approximate date of proposed sale to the public: As soon as practicable after
the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered registered(1) share (2) price (2) registration fee(3)
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Common Stock,
$.001 par value 1,074,308 $1.25 $1,342,885 $123.55
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
(1) Includes such indeterminate number of shares of Common Stock of the
Registrant as may be issuable by reason of the
anti-dilution provisions of the Plan.
(2) Pursuant to Rule 457(h) under the Securities Act of 1933, as amended,
the registration fee was computed on the basis of the market value of
the shares of Common Stock to be registered hereby estimated in
accordance with Rule 457(c), solely for the purpose of computing the
registration fee, on the basis of the average of the high and low sales
prices per share of Common Stock of the Registrant on July 29, 2003.
(3) The Registration Fee is based upon the exercise price of the warrants
pursuant to Rule 457(f)(2).
PART I
The documents containing the information specified in this Part I will
be sent or given to participants in the 2002 Directors, Officers and Consultants
Stock Option, Stock Warrant and Stock Award Plan (the "Plan) as specified by
Rule 428(b)(1). Pursuant to the instructions for Form S-8, such documents need
not be filed with the Commission either as part of the Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424. These documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended. See Rule 428(a)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The documents listed in (a) and (b) below have been filed by the
Registrant, CeriStar, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission (the "Commission") and are incorporated by
reference in this Registration Statement. All documents subsequently filed by
the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (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 by reference in the Registration Statement and to be part
thereof from the date of filing of such documents.
(a) Amendment to Quarterly Report on Form 10-QSB for the
quarter ended March 31, 2003 and filed on June 20, 2003, Amendment to
Annual Report on Form 10-KSB for the year ended December 31, 2002 and
filed on June 30, 2003.. The above referenced reports, which were
previously filed with the Commission, are incorporated herein by
reference.
(b) All other reports filed pursuant to Section 13 or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
Registrant's Form 10-KSB for the period ended December 31, 2002.
The above referenced reports, which were previously filed with the
Commission, are incorporated herein by reference.
Item 4: Description of Securities
Not Applicable
Item 5: Interests of Named Experts and Counsel.
None
Item 6: Indemnification of Directors and Officers.
(a) Section 145 of the Delaware General Corporation Law provides that:
ss.145. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS; INSURANCE
(1) A corporation shall have power to 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 (other than 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 such actions suit or proceeding if he acted
in good faith and in a manner 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 contenders or its equivalent, shall not, of
itself, create a presumption that the person 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, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(2) A corporation shall have power to 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, 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) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem 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 (a) and (b), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(4) Any indemnification under subsections (a) and (b) (unless ordered
by a court) shall 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 because he has met the
applicable standard of conduct set forth in subsections (a) and (b). Such
determination shall be made (1) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(2) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (3) by the stockholders.
(5) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this Section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems appropriate.
(6) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(7) A corporation shall power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee of agent or 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 any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
(8) For purposes of this Section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Section with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(9) For purposes of this Section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
Section.
(10) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(11) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees). (As amended by Ch. 186, Laws of 1967, Ch. 421, Laws of 1970, Ch. 437,
Laws of 1974, Ch. 25, Laws of 198 1, Ch. 11 2, Laws of 1983, Ch. 289, Laws of
1986, Ch. 376, Laws of 1990, and Ch. 26 1, Laws of 1994.)
(b) Section 102 of the Delaware General Corporation Law includes the
following provisions:
ss. 102. CERTIFICATE OF INCORPORATION; CONTENTS
(1) The certificate of incorporation shall set forth:
(2) In addition to the matters required to be set forth in the
certificate of incorporation by subsection (a) of this section the certificate
of incorporation may also contain any or all of the following matters:
(vii) A provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided
that such provision shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of
law, (iii) under section 174 of this Title, or (iv) for any transaction
from which the director derived an improper personal benefit. No such
provision shall eliminate or limit the liability of a director for any
act or omission occurring prior to the date when such provision becomes
effective. All references in this paragraph to a director shall also be
deemed to refer (x) to a member of the governing body of a corporation
which is not authorized to issue capital stock and (y) to such other
person or persons, if any, who, pursuant to a provision of the
certificate of incorporation in accordance with subsection (a) of ss.
141 of this title, exercise or perform any of the powers or duties
otherwise conferred or imposed upon the board of directors by this
title.
Item 7. Exemption From Registration Claimed.
Not Applicable
Item 8: Exhibits
The following documents are filed as Exhibits to this Registration
Statement:
4.1 -- 2002 Directors, Officers and Consultants Stock
Option, Stock Warrant and Stock Award Plan*
5 -- Opinion of Sonfield & Sonfield as to the
authorization and issuance of the shares being
registered.
24.1 -- Consent of Sonfield & Sonfield (included in Exhibit5)
24.2 -- Consent of Tanner + Co., Certified Public Accountant
-------------------------
* Included by reference in Registration Statement on Form S-8 filed on September
10, 2002 (SEC File No. 333-99371).
Item 9: Undertakings
The undersigned registrant hereby undertakes:
(a) to file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement 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;
(b) 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; and
(c) 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant 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 authorized, in Salt Lake City, Utah, on the 31st day of July, 2003.
CERISTAR, INC.
By: /s/David L. Bailey
--------------------------------------------------
David L. Bailey, Chief Executive Officer
By: /s/G. Earl Demorest
--------------------------------------------------
G. Earl Demorest, Chief Financial Officer
EXHIBIT 5 & 24.1
LETTERHEAD OF SONFIELD AND SONFIELD
July 29, 2003
Board of Directors
CeriStar, Inc.
50 West Broadway, Suite 1100
Salt Lake City, Utah 84101
Ladies and Gentlemen:
In our capacity as counsel for CeriStar, Inc., a Delaware corporation
(the "Company"), we have participated in the corporate proceedings relative to
the authorization and issuance by the Company of a maximum of 1,074,308 shares
of common stock pursuant to the Plan as set out and described in the Company's
Registration Statement on Form S-8 (File No. 001-16381) under the Securities Act
of 1933 (the "Registration Statement"). We have also participated in the
preparation and filing of the Registration Statement.
Based upon the foregoing and upon our examination of originals (or
copies certified to our satisfaction) of such corporate records of the Company
and other documents as we have deemed necessary as a basis for the opinions
hereinafter expressed, and assuming the accuracy and completeness of all
information supplied us by the Company, having regard for the legal
considerations which we deem relevant, we are of the opinion that:
(1) The Company is a corporation duly organized and
validly existing under the laws of the State of Delaware;
(2) The Company has taken all requisite corporate action and
all action required by the laws of the State of Delaware with respect
to the authorization, issuance and sale of warrants and shares of
common and preferred stock to be issued pursuant to the Registration
Statement; and
(3) The 1,074,308 shares of common stock, when issued pursuant
to the Registration Statement, will be validly issued, fully paid and
non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the references to our firm in the Registration
Statement.
Yours very truly,
/s/SONFIELD & SONFIELD
SONFIELD & SONFIELD
EXHIBIT 24.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
TO: CeriStar, Inc.
We hereby consent to the use in this Registration Statement on Form S-8
of our report dated February 7, 2003 relating to the financial statements of
CeriStar, Inc., and to the reference to our Firm in the Registration Statement.
TANNER + CO.
Salt Lake City, Utah
July 30, 2003