UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 22, 2004
Airtrax, Inc.
(Exact name of registrant as specified in its charter)
New Jersey 0-25791 22-3506376
--------------------------------------------------------------------------------
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
870B Central Avenue, Hammonton, New Jersey 08037
(Address of principal executive offices and Zip Code)
Registrant's telephone number, including area code (609)-567-7800
Copies to:
Richard A. Friedman
Eric A. Pinero, Esq.
Sichenzia Ross Friedman Ference LLP
1065 Avenue of the Americas
New York, New York 10018
Phone: (212) 930-9700
Fax: (212) 930-9725
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On November 22, 2004, we entered into a Purchase Agreement (the "Purchase
Agreement") pursuant to which we sold and issued 1,125,000 shares of Common
Stock, no par value (the "Common Shares"), and common stock purchase warrants
(the "Warrants") to purchase 562,500 shares of our Common Stock (the "Warrant
Shares") to certain purchasers who are a party to the Purchase Agreement (the
"Purchasers") for an aggregate purchase price of $900,000. Thereafter, on
November 23, 2004, we entered into Joinders to the Purchase Agreement pursuant
to which we sold and issued an additional 515,000 shares of common stock and
Warrants to purchase an additional 257,500 Warrant Shares to certain purchasers
who are a party to the Joinders to the Purchase Agreement for an aggregate
purchase price of $412,000. The securities were sold to accredited investors in
reliance upon the exemption afforded by the provisions of Regulation D, as
promulgated by the Securities and Exchange Commission under the Securities Act
of 1933, as amended. The Common Shares were priced at $.80. The Purchase
Agreement is attached hereto as Exhibit 4.1 and the Joinder to the Purchase
Agreement is attached hereto as Exhibit 4.2
The Warrants are exercisable from November 22, 2004 until November 22, 2009
for up to 562,500 shares of common stock and from November 23, 2004 until
November 23, 2009 for up to 257,500 shares of common stock, each at an exercise
price of $1.25 per share, subject to adjustment upon the occurrence of specific
events, including stock dividends, stock splits, combinations or
reclassifications of our common stock or distributions of cash or other assets.
In addition, the Warrants contain provisions protecting against dilution
resulting from the sale of additional shares of our common stock for less than
the exercise price of the Warrants, or the market price of the common stock, on
the date of such issuance or sale (the "Anti-Dilution Shares"). The Warrants do
not entitle the holders to any voting or other rights as a stockholder until
such Warrants are exercised and common stock is issued. Under the terms of the
offering, in no event shall the Purchasers become the beneficial owner of more
than 9.99% of the number of shares of common stock outstanding immediately after
giving effect to such issuance.The Purchasers may waive the 9.99 % limitation by
61 days written notice to the Company. The rights of the holder of the Warrants
are more fully set forth in the form of Warrant attached hereto as Exhibit 4.3.
In addition, we entered into a Registration Rights Agreement on November
22, 2004 and a Joinder to the Registration Rights Agreement on November 23, 2004
with the Purchasers and the Placement Agent (as defined below) pursuant to which
we are obligated to file a registration statement on Form SB-2 (or if Form SB-2
is not then available to us, on such form of registration statement that is
available to effect the registration of the Common Shares) within 45 days after
the closing date. We must register at least the number of shares of our Common
Stock equal to the Common Shares plus the number of shares necessary to permit
the exercise in full of the Warrants. If we do not file the registration
statements with the SEC within 45 days after the closing date, we are required
to make pro rata payments to the Purchasers, as liquidated damages and not as a
penalty, in an amount equal to 2.0% of the aggregate amount invested by each
Purchaser for each 30 day period or pro rata for any portion thereof following
the date by which such registration statement should have been filed.
We are also obligated to file a one or more registration statements on Form
SB-2 or amend the registration statement previously filed, as described in the
preceding paragraph, if such registration statement has not previously been
declared effective covering the Anti-Dilution Shares within 10 days following
written demand by any Purchaser following the issuance of Anti-Dilution Shares.
If a registration statement covering the Anti-Dilution Shares is required to be
filed and is not filed with the SEC within 10 days of the request of any
Purchaser, we will make pro rata payments to each Purchaser in an amount equal
to 2.0% of the aggregate amount invested by such Purchaser for each 30-day
period or pro rata for any portion thereof following the date by which such
registration statement should have been filed for which no registration
statement is filed with respect to the Anti-Dilution Shares. The registration
rights of the Purchasers are more fully set forth in the Registration Rights
Agreement attached hereto as Exhibit 4.4 and the Joinder to the Registration
Rights Agreement attached hereto as Exhibit 4.5.
If a registration statement covering the Common Shares is not declared
effective by the SEC within 90 days after the closing date or if a registration
statement covering Anti-Dilution Shares is not declared effective by the SEC
within 90 days following the time such registration statement was required to be
filed, then the Company will make pro rata payments to each Purchaser, as
liquidated damages and not as a penalty, in an amount equal to 2,0% of the
aggregate amount invested by such Purchaser for each 30-day period or pro rata
for any portion thereof following the date by which such registration statement
should have been effective.
2
First Montauk Securities Corp. (the "Selling Agent") acted as selling agent
in connection with the offering. We issued a total of 176,500 Warrants on
November 22 & 23, 2004 to the Selling Agent and the Selling Agent received gross
fees of $174,560, as consideration for services performed in connection with the
issuance of the Common Shares and Warrants to the Purchasers pursuant to the
Purchase Agreement. The Selling Agent has no obligation to buy any Common Shares
from us. In addition, we have agreed to indemnify the Selling Agent and other
persons against specific liabilities under the Securities Act of 1933, as
amended.
On November 29, 2004, we issued a press release announcing the transaction.
A copy of this press release has been filed with this Current Report on Form 8-K
as Exhibit 99.1 and is incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation.
See Item 1.01 above.
Item 3.02 Unregistered Sales of Equity Securities.
See Item 1.01 above.
Item 9.01 Financial Statements and Exhibits.
(a) Financial statements of business acquired.
Not applicable.
(b) Pro forma financial information.
Not applicable.
(c) Exhibits.
Exhibit
Number Description
--------------------------------------------------------------------------------
4.1 Purchase Agreement, dated November 22, 2004, by and among Airtrax, Inc. and
Excalibur Limited Partnership, Stonestreet Limited Partnership and
Whalehaven Capital Fund.
4.2 Joinder to the Purchase Agreement, dated November 23, 2004, by and among
Airtrax, Inc. and Excalibur Limited Partnership, Stonestreet Limited
Partnership and Linda Hechter.
4.3 Form of Common Stock Purchase Warrant issued to Excalibur Limited
Partnership, Stonestreet Limited Partnership, Whalehaven Capital Fund,
Linda Hechter and First Montauk Securities Corp.
4.4 Registration Rights Agreement, dated November 22, 2004, by and among
Airtrax, Inc. and Excalibur Limited Partnership, Stonestreet Limited
Partnership, Whalehaven Capital Fund and First Montauk Securities Corp.
4.5 Joinder to the Registration Rights Agreement, dated November 23, 2004, by
and among Airtrax, Inc. and Excalibur Limited Partnership, Stonestreet
Limited Partnership, Linda Hechter and First Montauk Securities Corp.
99.1 Press Release of Airtrax, Inc., dated November 29, 2004, announcing the
sale of securities pursuant to the Purchase Agreement.
3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Airtrax, Inc.
Date: November 29, 2004 /s/ Peter Amico
---------------
Peter Amico
Chief Executive Officer