As filed with the Securities and Exchange Commission on May 6, 2005
Registration No. 333-___________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AIRTRAX, INC.
(Exact name of registrant as specified in its charter)
New Jersey 22-3506376
--------------------------------- ---------------------------------
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
870B Central Avenue, Hammonton, New Jersey 08037
(Address of principal executive offices) (Zip Code)
BRIAN KLANICA
2005 CONSULTING AGREEMENT
AND
COMPENSATION AGREEMENT
(Full title of Plan)
Peter Amico, President and CEO
870B Central Avenue
Hammonton, New Jersey 08037
(Name and address of agent for service)
(609) 567-7800
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee
---------- ----------- ------------ ---------- ------------
Common Stock, 150,000(2) $2.50 $375,000 $44.14
no par value
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(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, using the average
of the high and low price as reported on the Over-The-Counter Bulletin Board on
May 5, 2005.
(2) Includes: (i) 100,000 shares issuable pursuant to the Consulting Agreement
between Airtrax, Inc. and Brian Klanica, dated January 12, 2005; and (ii) 50,000
shares issuable pursuant to the Compensation Agreement between Airtrax, Inc. and
Sichenzia Ross Friedman Ference LLP, dated as of April 29, 2005.
PART I
Item 1. Plan Information.
The documents containing the information specified in Item 1 will be sent or
given to participants in the Plan as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents are
not required to be and are not filed with the Securities and Exchange Commission
(the "SEC") either as part of this 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 Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated by reference in
Item 3 of Part II of this Registration Statement (which documents are
incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees, non-employee directors and
consultants, pursuant to Rule 428(b) are available without charge by contacting:
Peter Amico, President and CEO
870B Central Avenue Hammonton,
New Jersey 08037
(609) 567-7800
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration Statement
the documents listed below. In addition, all documents subsequently filed
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 (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 into this Registration Statement and to be a part hereof from the date
of filing of such documents:
o Reference is made to the Registrant's annual report on Form 10-KSB for the
year ended December 31, 2004, as filed with the SEC on April 15, 2005, which is
hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form 10-QSB for the
quarter ended September 30, 2004, as filed with the SEC on November 15, 2004,
which is hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form 10-QSB for the
quarter ended June 30, 2004, as filed with the SEC on August 13, 2004, which is
hereby incorporated by reference.
o Reference is made to the Registrant's quarterly report on Form 10-QSB for the
quarter ended March 31, 2004, as filed with the SEC on May 21, 2004, which is
hereby incorporated by reference.
o Reference is made to the description of the Registrant's common stock as
contained in its Registration Statement on Form SB-2, filed with the Commission
on June 15, 2004, including all amendments and reports filed with the Commission
for the purpose of updating such description.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with this registration statement will be
passed upon for the Registrant by Sichenzia Ross Friedman Ference LLP, New York,
New York. Sichenzia Ross Friedman Ference LLP will receive 50,000 shares of
common stock of the Registrant under this registration statement to be issued as
compensation for legal services performed on behalf of the Registrant.
Item 6. Indemnification of Directors and Officers.
Under the New Jersey Business Corporations Act ("NJBCA"), any corporation in the
State of New Jersey has the power to indemnify a corporate agent, including an
officer and director, against his expenses and liabilities in connection with
any proceeding involving the corporate agent if; (a) such corporate agent acted
in good faith and in manner reasonably believed to be in the best interests of
the corporation, and (b) with respect to any criminal proceeding, such corporate
agent had no reasonable cause to believe his conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction or plea
of nolo contendre or its equivalent, shall not itself create a presumption that
such corporate agent did not meet the applicable standards of conduct.
The Company's By-Laws indemnify any person who was, is, or is threatened to be
made a party to a proceeding (as defined below) by reason of the fact that he or
she (i) is or was a director or officer of the Corporation or (ii) while a
director or officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, venturer, member, proprietor,
trustee, employee, agent, or similar functionary of another foreign or domestic
corporation, partnership, joint venture, limited liability company, sole
proprietorship, trust, employee benefit plan or other enterprise, to the fullest
extent permitted under the NJBCA, as the same exists or may hereafter be
amended. Such right shall be a contract right and as such shall run to the
benefit of any director or officer who is elected and accepts the position of
director or officer of the Corporation or elects to continue to serve as a
director or officer of the Corporation while the provision is in effect. Any
repeal or amendment of this provision shall be prospective only and shall not
limit the rights of any such director or officer or the obligations of the
Corporation in respect of any claim arising from or related to the services of
such director or officer in any of the foregoing capacities prior to any such
repeal or amendment to the provision. Such right shall include the right to be
paid by the Corporation expenses (including attorneys' fees) incurred in
defending any such proceeding in advance of its final disposition to the maximum
extent permitted under the NJBCA, as the same exists or may hereafter be
amended. If a claim for indemnification or advancement of expenses hereunder is
not paid in full by the Corporation within 60 days after a written claim has
been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim, and if
successful in whole or in part, the claimant shall also be entitled to be paid
the expenses of prosecuting such claim. It shall be a defense to any such action
that such indemnification or advancement of costs of defense are not permitted
under the NJBCA, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors or any committee thereof, independent legal counsel, or stockholders)
to have made its determination prior to the commencement of such action that
indemnification of, or advancement of costs of defense to, the claimant is
permissible in the circumstances nor an actual determination by the Corporation
(including its Board of Directors or any committee thereof, independent legal
counsel, or stockholders) that such indemnification or advancement is not
permissible shall be a defense to the action or create a presumption that such
indemnification or advancement is not permissible. In the event of the death of
any person having a right of indemnification, such right shall inure to the
benefit of his or her heirs, executors, administrators, and personal
representatives. The rights conferred shall not be exclusive of any other right
that any person may have or hereafter acquire under any statute, bylaw,
resolution of stockholders or directors, agreement, or otherwise. The
Corporation may additionally indemnify any employee or agent of the Corporation
to the fullest extent permitted by law. As used herein, the term "proceeding"
means any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, arbitrative, or investigative, any appeal in
such an action, suit, or proceeding, and any inquiry or investigation that could
lead to such an action, suit, or proceeding.
The Company's Bylaws also permit the Company to purchase and maintain insurance
on behalf of any Director, Officer, Agent or employee whether or not the Company
would have the power to indemnify such person against the liability insured
against.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit Description
------- -----------
5.1 Opinion of Sichenzia Ross Friedman Ference LLP
10.1 Consulting Agreement with Brian Klanica
10.2 Compensation Agreement with Sichenzia Ross Friedman Ference LLP
23.1 Consent of Sichenzia Ross Friedman Ference LLP is
included in Exhibit 5.1
23.2 Consent of Robert G. Jeffrey
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) 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;
(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) The undersigned registrant hereby undertakes 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 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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
In accordance with 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 of an amendment to a filing on Form S-8 and authorized this
amendment to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hammonton, State of New Jersey on May 6, 2005.
AIRTRAX, INC.
By: /s/ Peter Amico
-----------------------------------------
Peter Amico, President, Chief Executive
Officer, Acting Chief Financial Officer
and Principal Accounting Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated. Each person whose signature appears below constitutes
and appoints Peter Amico his true and lawful attorney-in-fact and agent, with
full power of substitution and revocation, for him and in his, place and stead,
in any and all capacities, to sign any and all amendments (including
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 attorney-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agents, or either of
them, may lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities stated.
Signature Title Date
/s/ Peter Amico President, Chief Executive Officer, May 6, 2005
----------------------------------- Acting Chief Financial Officer and
Peter Amico Principal Accounting Officer
/s/ D. Barney Harris Director May 6, 2005
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D. Barney Harris
/s/ James Hudson Director May 6, 2005
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James Hudson
/s/ Frank Basile Director May 6, 2005
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Frank Basile
/s/ William Hungerville Director May 6, 2005
-----------------------------------
William Hungerville
/s/ Fil Filipov Director May 6, 2005
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Fil Filipov