-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QDWnxhbQHO11cDb1VKXKZMQA0zXVRl2KiR1OBveUES4BP76pX1Ls4WobKMuMHBc+ O5wIsEBiLMCQlrFs1lsx3Q== 0001013762-04-000968.txt : 20040901 0001013762-04-000968.hdr.sgml : 20040901 20040901153855 ACCESSION NUMBER: 0001013762-04-000968 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20040901 DATE AS OF CHANGE: 20040901 EFFECTIVENESS DATE: 20040901 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AIRTRAX INC CENTRAL INDEX KEY: 0001081372 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL TRUCKS TRACTORS TRAILERS & STACKERS [3537] IRS NUMBER: 223506376 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-118725 FILM NUMBER: 041011152 BUSINESS ADDRESS: STREET 1: 870B CENTRAL AVENUE CITY: HAMMONTON STATE: NJ ZIP: 08037 BUSINESS PHONE: 609-567-7800 MAIL ADDRESS: STREET 1: 870B CENTRAL AVENUE CITY: HAMMONTON STATE: NJ ZIP: 08037 FORMER COMPANY: FORMER CONFORMED NAME: MAS ACQUISITION IX CORP DATE OF NAME CHANGE: 19990308 S-8 1 sept12004forms8.txt As filed with the Securities and Exchange Commission on September 1, 2004 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) --------------------------------------------- SWINGBRIDGE CAPITAL LLC 2004 CONSULTING 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) 567-3555 (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, 40,000 $0.985 $39,400 $4.99 no par value - -------------------------------------------------------------------------------- (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 August 31, 2004. 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) 567-3555 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 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 Registrant's annual report on Form 10-KSB for the year ended December 31, 2003, as filed with the SEC on April 8, 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 S-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. Not Applicable. Item 6. Indemnification of Directors and Officers. 2 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 Swingbridge Capital LLC 23.1 Consent of Sichenzia Ross Friedman Ference LLP is included in Exhibit 5.1 23.2 Consent of Robert G. Jeffrey 3 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. 4 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 August 17, 2004. 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, August 17, 2004 ----------------------------------- Acting Chief Financial Officer and Peter Amico Principal Accounting Officer /s/ D. Barney Harris Director August 19, 2004 - ------------------------------------ D. Barney Harris /s/ James Hudson Director August 17, 2004 - ------------------------------------ James Hudson /s/ Frank Basile Director August 16, 2004 ----------------------------------- Frank Basile /s/ William Hungerville Director September 1, 2004 ----------------------------------- William Hungerville
5 EX-5 2 sept12004forms8ex51.txt EXHIBIT 5.1 Sichenzia Ross Friedman Ference LLP 1065 AVENUE OF THE AMERICAS NEW YORK NY 10018 TEL 212 930 9700 FAX 212 930 9725 WEB WWW. SRFFLLP.COM September 1, 2004 VIA ELECTRONIC TRANSMISSION Securities and Exchange Commission 450 Fifth Street, N.W. Washington, CC 20549 Re: Airtrax, Inc. Ladies and Gentlemen: We refer to the registration statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Act"), filed by Airtrax, Inc., a Nevada corporation (the "Company"), with the Securities and Exchange Commission on September 1, 2004. We have examined the originals, photocopies, certified copies or other evidence of such records of the Company, certificates of officers of the Company and public officials, and other documents as we have deemed relevant and necessary as a basis for the opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as certified copies or photocopies and the authenticity of the originals of such latter documents. Based on our examination mentioned above, we are of the opinion that the securities being registered to be sold pursuant to the Registration Statement are duly authorized and will be, when sold in the manner described in the Registration Statement, legally and validly issued, and fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving the foregoing consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act, or the rules and regulations of the Securities and Exchange Commission. Very truly yours, /s/ Sichenzia Ross Friedman Ference LLP ---------------------------------------- Sichenzia Ross Friedman Ference LLP EX-10 3 sept12004forms8ex101.txt Exhibit 10.1 CONSULTING AGREEMENT: This Agreement is entered on July 20, 2004 between Swingbridge Capital LLC. Together with Brian F. Klanica (the "Consultant"), of 908 South Meriden Road, Cheshire, CT 06410 and Airtrax Inc. (the "Company") of 870B Central Avenue, Hammonton, New Jersey 08037. WITNESSETH: WHERAS, the Company desires to extend the Consulting Agreement between the Consultant and the Company dated April 10th, 2003 and retain the services of the Consultant and the Consultant desires to provide services to the Company upon the following terms and conditions. NOW THEREFORE: Consulting Services. The Consultant agrees to have Brian F. Klanica, a Managing Director of Swingbridge Capital LLC, personally provide the consulting services to the Company during the term of this agreement. The Company understands that the Consultant and Brian F. Klanica may be engaged in other business and consulting activities during the term of this agreement. The Consultant will provide business acquisition and development strategy, and assist in acquisition due diligence. Also, the Consultant will provide financial advisory services, which would be consistent of the duties of a Chief Financial Officer. Term. The Term of this Agreement shall commence as of the date of signing of this Agreement and shall continue through January 20th, 2005, unless sooner terminated as provided herein. This agreement can be terminated by either party upon 30 days' prior written notice; provided, however, that no such termination shall affect the indemnification, contribution and confidentiality obligations of the Company, and the right of the Consultant to receive any fees accrued prior to such termination. Consideration. The Company acknowledges that the Consultant has provided significant business strategies, identified acquisition targets and strategic partners, and assisted in deal structuring. For these efforts, and for the inducement of the execution of this Agreement, the Company will issue to Consultant in the name of Brian F. Klanica a non-refundable fee of 40,000 shares of the Company's common stock, which will be registered under Form S-8. The parties acknowledge that Consultant has not and will not provide any capital raising services related to issuance of the above-mentioned shares of common stock. Indemnification. The Company agrees to indemnify Swingbridge Capital LLC, and Brian F. Klanica in accordance with the indemnification schedule previously signed by the Company. Also, the Company agrees to include the Consultant on its Directors and Officers insurance policies. Miscellaneous. No provision of this Agreement may be amended, modified or waived, except in writing signed by both parties. Either party without the written consent of both parties shall not assign this Agreement. This Agreement may be executed in counterparts. This Agreement shall be enforced in accordance with the laws of the State of New Jersey. IN WITNESS WHEROF, the parties have executed this Agreement on the date first above written. Airtrax, Inc. By: /s/ Peter Amico -------------------------------- Name: Peter Amico Title: ----------------------------- Swingbridge Capital LLC. Brian F. Klanica By: /s Brian F. Klanica /s/ Brian F. Klanica ------------------- -------------------- Name: Brian F. Klanica Title: Managing Member 2 EX-23 4 sept12004forms8ex232.txt EXHIBIT 23.2 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT As an Independent Certified Public Accountant, I hereby consent to the incorporation by reference in this Registration Statement of Airtax, Inc. (the "Company") on Form S-8 of my audit report dated March 29, 2004 included in the Form 10-KSB for the period ended December 31, 2003, and to all references to my Firm included in this Registration Statement. /s/ Robert G. Jeffrey - --------------------- Robert G. Jeffrey Wayne, New Jersey 07470 August 17, 2004 -----END PRIVACY-ENHANCED MESSAGE-----