AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 11, 2004
Registration No. 333-116475
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 2
To the
FORM S-2
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 of (I.R.S. Employer
Incorporation or Organization) Identification No.)
----------------------
870B CENTRAL AVENUE
HAMMONTON, NEW JERSEY 08037
(609) 567-3555 (Address, Including Zip Code,
and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
PETER AMICO, PRESIDENT AND CEO
870B CENTRAL AVENUE
HAMMONTON, NEW JERSEY 08037
(609) 567-3555
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
WITH COPIES TO:
RICHARD A. FRIEDMAN, ESQ.
DARRIN M. OCASIO, ESQ.
SICHENZIA ROSS FRIEDMAN FERENCE LLP
1065 AVENUE OF AMERICAS
NEW YORK, NEW YORK 10018
(212) 930-9700
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO
TIME, AT THE DISCRETION OF THE SELLING SHAREHOLDERS AFTER THE EFFECTIVE DATE OF
THIS REGISTRATION STATEMENT
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. |X|
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this form, check the following box. |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434, check
the following box. |_|
CALCULATION OF REGISTRATION FEE
====================================================================================================================
PROPOSED PROPOSED
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PRICE PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
--------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 3,600,125(2) $ 1.03 $3,708,128.75 $469.82
--------------------------------------------------------------------------------------------------------------------
Common Stock, no par value 3,160,063(3) $ 1.03 $3,254,864.89 $412.39
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
TOTAL 6,760,188 $882.21*
====================================================================================================================
*Previously paid
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) and Rule 457(g) 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 June 11, 2004.
(2) Represents shares of common stock.
(3) Includes shares of common stock underlying warrants.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED AUGUST 11, 2004
PROSPECTUS
Airtrax, Inc.
6,760,188 Shares of Common Stock
This prospectus relates to the resale by the selling stockholder of 6,760,188
shares of our common stock, including 3,160,063 shares are issuable upon the
exercise of warrants. The selling stockholder may sell common stock from time to
time in the principal market on which the stock is traded at the prevailing
market price or in negotiated transactions.
We will pay the expenses of registering these shares. We will not receive any
proceeds from the sale of shares of common stock in this offering. All of the
net proceeds from the sale of our common stock will go to the selling
stockholders.
Our common stock is registered under Section 12(g) of the Securities Exchange
Act of 1934 and is listed on the Over-The-Counter Bulletin Board under the
symbol "AITX." The last reported sales price per share of our common stock as
reported by the Over-The-Counter Bulletin Board on June 11, 2004 was $1.03.
Investing in these securities involves significant risks. Investors should not
buy these securities unless they can afford to lose their entire investment.
SEE "RISK FACTORS" BEGINNING ON PAGE _.
The Securities and Exchange Commission and state securities regulators have not
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is ____, 2004.
The information in this prospectus is not complete and may be changed. This
prospectus is included in the registration statement that was filed by Airtrax,
Inc., with the Securities and Exchange Commission. The Selling Stockholder may
not sell these securities until the registration statement becomes effective.
This prospectus is not an offer to sell these securities and is not soliciting
an offer to buy these securities in any state where the offer or sale is not
permitted.
TABLE OF CONTENTS
Where You Can Find More Information........................................ 1
Forward-Looking Statements................................................. 2
Prospectus Summary......................................................... 3
Recent Developments........................................................ 4
Risk Factors............................................................... 5
Use of Proceeds............................................................ 7
Selling Stockholder........................................................ 8
Plan of Distribution....................................................... 10
Description of Capital Stock............................................... 14
Legal Matters.............................................................. 14
Experts.................................................................... 14
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports and other information with the
Securities and Exchange Commission. You may read and copy any of these documents
at the SEC's public reference rooms in Washington, D.C.. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public at the SEC' s website at www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file with it,
which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is considered to
be an important part of this prospectus. Any information that we incorporate by
reference is automatically updated and superseded if information contained in
this prospectus modifies or replaces that information. You must look at all of
our SEC filings that we have incorporated by reference to determine if any of
the statements in a document incorporated by reference have been modified or
superseded.
We incorporate by reference the document listed below:
o Our quarterly report on Form 10-QSB for the period ending March 31, 2004;
o Our annual report on Form 10-KSB for the year ended December 31, 2003; and
o Our current reports on Form 8-K for the past fiscal year.
A copy of our above-mentioned reports are being delivered with this prospectus.
You may request additional copies of these filings at no cost, by writing or
telephoning us at the following address or phone number:
Airtrax, Inc.
870B Central Avenue
Hammonton, NJ 08037
Attention: President
(609) 567-7800
You should rely only on the information contained in this prospectus or to which
we have referred you. We have not authorized anyone to provide you with
information that is different. This prospectus may only be used where it is
legal to sell these securities. The information in this prospectus may only be
accurate on the date of this prospectus.
1
FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and the documents incorporated by
reference in this prospectus contain forward-looking statements. We have based
these forward-looking statements on our current expectations and projections
about future events.
In some cases, you can identify forward-looking statements by words such as
"may," "should," "expect," "plan," "could," "anticipate," "intend," "believe,"
"estimate," "predict," "potential," "goal," or "continue" or similar
terminology. These statements are only predictions and involve known and unknown
risks, uncertainties and other factors, including the risks outlined under "Risk
Factors," that may cause our or our industry's actual results, levels of
activity, performance or achievements to be materially different from any future
results, levels of activity, performance or achievements expressed or implied by
such forward-looking statements.
Unless we are required to do so under U.S. federal securities laws or other
applicable laws, we do not intend to update or revise any forward-looking
statements.
2
PROSPECTUS SUMMARY
Since 1995, substantially all of our resources and operations have directed
towards the development of the omni-directional wheel and related components for
forklift and other material handling applications. Many of the components,
including the unique shaped wheels, motors, and frames, have been specially
designed by us and specially manufactured. Four pilot models of the commercial
omni-directional lift truck are currently operational.
We have commenced and are near completion of getting the parts together for our
initial production run consisting of 10 units of our Sidewinder ATX-3000
Omni-Directional Lift Truck. Substantially all of the parts including frames,
motors, controllers, and micro-processors have been ordered and received by us,
and are partially assembled. The initial production run will be completed upon
receipt of wheels and other components from suppliers which is expected in the
third quarter of 2004. Unit assembly is undertaken by Crane and Machinery, Inc.,
(Schaeff Forklift) Bridgeview, Illinois under our specifications. UL and final
ANSI testing is expected to be completed from 30 to 90 days from production
completion. Following required testing, we expect to sell these units to select
dealers in the United States. We have received orders for our initial run
production run of 10 units.
We have incurred losses and experienced negative operating cash flow since our
formation. For our fiscal years ended December 31, 2003 and 2002, we had a net
loss of $(2,363,695) and $(640,616), respectively. We expect to continue to
incur significant expenses. Our operating expenses have been and are expected to
continue to outpace revenues and result in significant losses in the near term.
We may never be able to reduce these losses, which will require us to seek
additional debt or equity financing.
Our principal executive offices are located at 870B Central Avenue, Hammonton,
NJ 08037 and our telephone number is (609) 567-7800. We are incorporated in the
State of New Jersey.
The Offering
Common stock offered by selling stockholder ............... Up to 6,760,188
shares and assuming
the full exercise of
the warrants.
Common stock to be outstanding after the offering.......... Up to 15,636,740
shares
Use of proceeds............................................ We will not receive
any proceeds from
the sale of the
common stock.
Over-The-Counter Bulletin Board Symbol..................... AITX
The above information regarding common stock to be outstanding after the
offering is based on 8,876,552 shares of common stock outstanding as of June 7,
2004.
3
RECENT DEVELOPMENTS
May 2004 Private Placement
Airtrax, Inc. ("AITX") and several accredited investors (collectively, the
"Investors") entered into a Subscription Agreement whereby the Investors agreed
to purchase an aggregate of 3,600,125 shares of common stock at a price of $0.80
per share for an aggregate purchase price of $2,855,100. In addition, the
Investors received warrants, exercisable at $1.25 per share, to purchase 50% of
the shares issued.
In connection with Subscription Agreement, AITX and the Investors also entered
into a Registration Rights Agreement. AITX is obligated to file a registration
statement covering the above-referenced common stock and shares underlying the
warrants within 30 days of closing. .If the Registration Statement is not filed
within the 30 day period, or declared effective within 105 days of the closing,
AITX will pay a penalty of 1% of the offering proceeds for the first month and
2% of such amount per month thereafter in penalties until such default is cured,
on a pro-rated daily basis.
The issuance of the shares and the warrants was exempt from registration
requirements of the Securities Act of 1933 pursuant to Section 4(2) of such
Securities Act and Regulation D promulgated thereunder based upon the
representations of each of the Investors that it was an "accredited investor"
(as defined under Rule 501 of Regulation D) and that it was purchasing such
securities without a present view toward a distribution of the securities. In
addition, there was no general advertisement conducted in connection with the
sale of the securities.
4
RISK FACTORS
If you purchase shares of our common stock, you will take on a financial risk.
In deciding whether to invest, you should consider carefully the following
factors, the information contained in this prospectus and the other information
to which we have referred you. If any of the following risks actually occur, our
business, financial condition or results of operations could be materially
adversely affected. In such case, the trading price of our common stock could
decline, and you may lose all or part of your investment.
RISKS RELATED TO OUR FINANCIAL CONDITION AND BUSINESS
WE MAY NEVER BECOME PROFITABLE AND CONTINUE AS A GOING CONCERN BECAUSE WE HAVE
HAD LOSSES SINCE OUR INCEPTION.
We may never become profitable and continue as a going concern because we have
incurred losses and experienced negative operating cash flow since our
formation. For our fiscal years ended December 31, 2003 and 2002, we had a net
loss of $(2,363,695) and $(640,616), respectively. We expect to continue to
incur significant expenses. Our operating expenses have been and are expected to
continue to outpace revenues and result in significant losses in the near term.
We may never be able to reduce these losses, which will require us to seek
additional debt or equity financing. If such financing is available you may
experience significant additional dilution.
OUR BUSINESS OPERATIONS WILL BE HARMED IF WE ARE UNABLE TO OBTAIN ADDITIONAL
FUNDING.
Our business operations will be harmed if we are unable to obtain additional
funding. We believe that our available short-term assets and investment income
will be sufficient to meet our operating expenses and capital expenditures
through the end of fiscal year 2004. We do not know if additional financing will
be available when needed, or if it is available, if it will be available on
acceptable terms. Insufficient funds may prevent us from implementing our
business strategy or may require us to delay, scale back or eliminate certain
opportunities for the provision of our technology and products. In addition to
our own need of working capital, we also will need working capital to fund the
operations of Filco GmbH. Filco has informed us that its working capital needs
are approximately $5,000,000 until it can achieve profitable operations, which
includes approximately $1,300,000 required under the Filco agreement. During the
first five months of 2004, we have loaned $900,000 to Filco. If we are unable to
complete the terms of the Filco agreement and loan Filco the remaining amounts
due thereunder, Filco may be unable to continue its operations and the repayment
of amounts loaned to Filco by us may be jeopardized.
FINAL TESTING OF OUR PRODUCT COULD RESULT IN COMPONENT REFINEMENT OR REDESIGN,
WHICH COULD DELAY THE COMMERCIAL INTRODUCTION OR CONTINUED SALE OF THE FORKLIFT.
We have developed pilot versions of our unique, omni-directional forklift. The
commercial introduction of the product is subject, however, to additional
testing and component refinement. Due to the unique performance attributes of
the forklift, the forklift will undergo a series of unprecedented tests relating
to these attributes. Although management has performed substantially all of
these tests or is otherwise confident of the performance capabilities of the
forklift, final testing has not been completed. In addition, our product must be
sufficiently durable to withstand the day-to-day rigors of its anticipated work
environment. As stated above, although we have conducted numerous tests, the
product has not been subjected to the normal day-to-day usage typically required
of forklifts. Therefore, it is conceivable that final testing, or durability
issues after prolonged use, could result in component refinement or redesign,
which could delay the commercial introduction or continued sale of the forklift.
THE PRICING POLICY FOR OUR FORKLIFTS MAY BE SUBJECT TO CHANGE, AND ACTUAL SALES
OR OPERATING MARGINS MAY BE LESS THAN PROJECTED.
We are assessing present and projected component pricing in order to establish a
pricing policy for the SIDEWINDER Lift Truck. We have not finalized our
assessment as current prices for certain forklift components reflect special
development charges which are expected to be reduced as order volume for such
components increase and as manufacturing efficiencies improve. We intend to
price our forklifts so as to maximize sales yet provide sufficient operating
margins. Given the uniqueness of our product, we have not yet established final
pricing sensitivity in the market. Consequently, the pricing policy for its
forklifts may be subject to change, and actual sales or operating margins may be
less than projected.
5
WE HAVE RECEIVED LIMITED INDICATIONS OF THE COMMERCIAL ACCEPTABILITY OF OUR
OMNI-DIRECTIONAL FORKLIFT. ACCORDINGLY, WE CAN NOT PREDICT WHETHER OUR
OMNI-DIRECTIONAL PRODUCTS CAN BE MARKETED AND SOLD IN A COMMERCIAL MANNER.
Our success will be dependent upon our ability to sell omni-directional products
in quantities sufficient to yield profitable results. To date, we have received
limited indications of the commercial acceptability of our omni-directional
forklift. Accordingly, we can not predict whether the omni-directional product
can be marketed and sold in a commercial manner.
RISKS RELATING TO OUR COMMON STOCK
THE MARKET PRICE OF OUR COMMON STOCK MAY DECLINE BECAUSE THERE ARE WARRANTS THAT
MAY BE AVAILABLE FOR FUTURE SALE AND THE SALE OF THESE SHARES MAY DEPRESS THE
MARKET PRICE.
The market price of our common stock may decline because there are a large
number of warrants that may be available for future sale, and the sale of these
shares may depress the market price. As of June 7, 2004, we had approximately
8,876,552 plus 3,600,125 (from this offering) shares of common stock issued and
outstanding and 3,304,438 outstanding options and warrants to purchase up to
3,304,438 shares of common stock. All of the shares included in this prospectus
may be sold without restriction. The sale of these shares may adversely affect
the market price of our common stock.
OUR COMMON STOCK IS SUBJECT TO "PENNY STOCK" RULES.
The Securities and Exchange Commission has adopted Rule 15g-9 which establishes
the definition of a "penny stock," for the purposes relevant to us, as any
equity security that has a market price of less than $5.00 per share or with an
exercise price of less than $5.00 per share, subject to certain exceptions. For
any transaction involving a penny stock, unless exempt, the rules require:
o that a broker or dealer approve a person's account for transactions in penny
stocks; and o the broker or dealer receive from the investor a written agreement
to the transaction, setting forth the identity and quantity of the penny stock
to be purchased.
In order to approve a person's account for transactions in penny stocks, the
broker or dealer must:
o obtain financial information and investment experience objectives of the
person; and o make a reasonable determination that the transactions in penny
stocks are suitable for that person and the person has sufficient knowledge and
experience in financial matters to be capable of evaluating the risks of
transactions in penny stocks.
The broker or dealer must also deliver, prior to any transaction in a penny
stock, a disclosure schedule prepared by the Commission relating to the penny
stock market, which, in highlight form:
o sets forth the basis on which the broker or dealer made the suitability
determination; and o that the broker or dealer received a signed, written
agreement from the investor prior to the transaction.
6
USE OF PROCEEDS
We will not receive any proceeds from the sale of common stock by the selling
stockholder. All of the net proceeds from the sale of our common stock will go
to the selling stockholder. We will receive the proceeds from the exercise of
warrants entitling the selling stockholders to purchase 2,160,063 shares from us
at an exercise price of $1.25 per share, 135,000 shares from us at an exercise
price of $1.00 per share, and 865,000 shares from us at an exercise price of
$2.50 per share. If all warrants held by the selling stockholders are exercised,
we will receive - $4,982,578 in proceeds.
We anticipate that any proceeds from the exercise of warrants by the selling
stockholders will be used for general corporate purposes, which may include but
are not limited to working capital, capital expenditures, acquisitions and the
repayment or refinancing of our indebtedness. Pending the application of any
proceeds from the exercise of warrants, if any, by the selling stockholders, we
expect to invest the proceeds in short-term, interest-bearing instruments or
other investment-grade securities.
7
SELLING STOCKHOLDERS
The table below sets forth information concerning the resale of the shares of
common stock by the selling stockholders. We will not receive any proceeds from
the resale of the common stock by the selling stockholders. We will receive
proceeds from the exercise of the warrants. Assuming all the shares registered
below are sold by the selling stockholders, none of the selling stockholders
will continue to own any shares of our common stock.
The following table also sets forth the name of each person who is offering the
resale of shares of common stock by this prospectus, the number of shares of
common stock beneficially owned by each person, the number of shares of common
stock that may be sold in this offering and the number of shares of common stock
each person will own after the offering, assuming they sell all of the shares
offered.
Shares Beneficially Owned Shares Beneficially Owned
Prior to the Offering After the Offering
------------------------------- ----------------------------------
Total
Shares
Name Number (1) Percent Registered (1) Number Percent
--------------------------------- ------------------- -------------- ------------------ ------------ ------------
Lerner Enterprises 468,750 * 468,750 0 0
Wilfred Shearer 375,000 * 375,000 0 0
Richard Spencer 187,500 * 187,500 0 0
Bais Yakov Moishe 187,500 * 187,500 0 0
Michael Vanechanos 187,500 * 187,500 0 0
Harry & Linda Whale 187,500 * 187,500 0 0
Herbert Strauss 181,500 * 181,500 0 0
Sara Heiman 178,125 * 178,125 0 0
Eliezer Rosenthal 159,375 * 159,375 0 0
Professional Traders Fund 150,000 * 150,000 0 0
Frank Vero and Sharon Vero 112,500 * 112,500 0 0
Mark A. Phelps Catherine L. Phelps 93,750 * 93,750 0 0
Mitchell Quintner 93,750 * 93,750 0 0
Danny Goode 93,750 * 93,750 0 0
Kellog Capital Group LLC 93,750 * 93,750 0 0
Leon Goldenberg 93,750 * 93,750 0 0
Douglas P. Cone, Jr 93,750 * 93,750 0 0
Judith Glaser 93,750 * 93,750 0 0
Ami Silberman & Karen 93,750 * 93,750 0 0
Century Development Corp 93,750 * 93,750 0 0
Noel Ischy 93,750 * 93,750 0 0
Shalom Torah Center 75,000 * 75,000 0 0
Wayne Miller 75,000 * 75,000 0 0
Van Wyck Window Fashion 75,000 * 75,000 0 0
Judy Rosenthal 75,000 * 75,000 0 0
Anthony Costanzo 69,375 * 69,375 0 0
Ateres Mechoel, Inc. 65,625 * 65,625 0 0
Daniel Barbara 60,000 * 60,000 0 0
Anne Oldham 56,250 * 56,250 0 0
James & Maureen Mcmullen 56,250 * 56,250 0 0
Dr. Dushan Kosovich 56,250 * 56,250 0 0
James Schultz 46,875 * 46,875 0 0
Stuart Margolis 46,875 * 46,875 0 0
Raymond Labella 46,875 * 46,875 0 0
David Rubenstein and Deborah S. Rubenstein 46,875 * 46,875 0 0
Murry Weitman and Toby Weitman 46,875 * 46,875 0 0
Edward Jaffe 46,875 * 46,875 0 0
Salvatore Amato 46,875 * 46,875 0 0
Rachel Mendelowitz 46,875 * 46,875 0 0
Sal Marsella 46,875 * 46,875 0 0
Richard Weir Wendy A. Weir 46,875 * 46,875 0 0
Jerome Miller 46,875 * 46,875 0 0
Fedele Volpe 46,875 * 46,875 0 0
James Blumenthal 46,875 * 46,875 0 0
James Woodworth 46,875 * 46,875 0 0
John Pearson 46,875 * 46,875 0 0
Bella Jacobs 46,875 * 46,875 0 0
Shmyer Breuer 46,875 * 46,875 0 0
Jacob Gold 46,875 * 46,875 0 0
Lloyd Cox 46,875 * 46,875 0 0
Tighe Taylor 46,875 * 46,875 0 0
Abraham Muller 46,875 * 46,875 0 0
James Moore Def benefit pl 46,875 * 46,875 0 0
William Kurinsky (2) 48,437 * 48,437 0 0
Benjamin Bekhore 46,875 * 46,875 0 0
Maria Marsella 46,875 * 46,875 0 0
Salvatore & Carlo Amato 46,875 * 46,875 0 0
8
More Int'l Investments, Inc. 46,875 * 46,875 0 0
Evangelos Xistris and Carol Monroe 40,875 * 40,875 0 0
Jay & Marsha Bloom 23,438 * 23,438 0 0
Edward Pikus 23,438 * 23,438 0 0
Nuala O'Halloran and Daniel O'Halloran 23,438 * 23,438 0 0
Israel David Zajac 46,875 * 46,875 0
First Montauk Securities Corp. 326,438 * 326,438 0 0
George Scritchfield (3) 35,000 * 35,000 0 0
Wahl, William, Sr.(4) 100,000 * 100,000 0 0
Raymond James & Assoc. Inc Custodian,
Thompson, William (4) 100,000 * 100,000 0 0
Entrust Admin Services, Inc. FBO
Ernest Pellegrino (5) 110,500 * 110,500 0 0
Shirang Jeurkar (6) 16,000 * 16,000 0 0
Angela Metelitsa (6) 5,500 * 5,500 0 0
Thompson, John IRA 1106030101(4) 80,000 * 80,000 0 0
Thompson, John(4) 70,000 * 70,000 0 0
Hiliard Lyons Custodian Guzzetti Andrew
IRA(4) 50,000 * 50,000 0 0
Paine, Nicholas c/o Cayman Management
Ltd.(4) 35,000 * 35,000 0 0
Shaver,William M(4) 35,000 * 35,000 0 0
Canuso, Gerald L(4) 35,000 * 35,000 0 0
Moorehouse, Thomas R.(4) 35,000 * 35,000 0 0
Bloom, Jay and Marsha(4) 35,000 * 35,000 0 0
Paine, Nicholas(4) 35,000 * 35,000 0 0
Van Note, Stephen(4) 35,000 * 35,000 0 0
Prudential Securities C/F, Millet-IRA,
Julien(4) 35,000 * 35,000 0 0
Dunning, John D., CrossFire Ventures(4) 20,000 * 20,000 0 0
Seidel, Jerome Jr.(4) 20,000 * 20,000 0 0
Pober, Lionel(4) 17,500 * 17,500 0 0
Wagner Jr., Alvin(4) 17,500 * 17,500 0 0
Pober, Lionel(4) 17,500 * 17,500 0 0
Wagner Jr., Alvin(4) 17,500 * 17,500 0 0
Mandel, Mathew(4) 10,000 * 10,000 0 0
Siegel, Dean M.(4) 10,000 * 10,000 0 0
Indictor, Gregg(4) 10,000 * 10,000 0 0
Lustig, S. Jeffrey(4) 10,000 * 10,000 0 0
Schiller, Robert B(4) 10,000 * 10,000 0 0
Entrust Admin Services, Inc. FBO, Steven
Bolden IRA #1114030102(4) 10,000 * 10,000 0 0
Seidel, Jerome Jr.(4) 5,000 * 5,000 0 0
John Jr. and Mary Ferrino(4) 10,000 * 10,000 0 0
------------------------------------------------------------------------------------------------------------------------------------
The number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Securities Exchange Act of 1934, and the
information is not necessarily indicative of beneficial ownership for any other
purpose. Under such rule, beneficial ownership includes any shares as to which
the selling stockholders has sole or shared voting power or investment power and
also any shares which the selling stockholders has the right to acquire within
60 days. The actual number of shares of common stock issuable upon the
conversion of the convertible preferred stock is subject to adjustment depending
on, among other factors, the future market price of the common stock, and could
be materially less or more than the number estimated in the table.
(1) With the exception of First Montauk Securities Corp., the number of shares
owned and being registered is comprised of 66.67% of shares of common stock and
33.33% of shares of common stock underlying warrants exercisable at $1.25. First
Montauk Securities Corp. owns (i) 301,438 warrants exercisable at $1.25 per
share; and (ii) 25,000 warrants exercisable at $1.00 per share.
(2) Includes (i) 31,2350 shares of common stock; and (ii) 17,187 shares of
common stock underlying warrants. (3) Represents 35,000 shares of common stock
underlying warrants exercisable at $1.00 per share.
(4) Represents shares of common stock underlying warrants exercisable at $2.50
per share.
(5) Represents (i) 57,000 shares of common stock underlying warrants exercisable
at $1.25 per share; and (ii) 53,500 shares underlying warrants exercisable at
$1.00 per share. Mr. Pellegrino is affiliated with First Montauk Securities, a
broker-dealer and has acquired these securities in the ordinary course of
business as compensation.
(6) Represents shares of common stock underlying warrants exercisable at $1.00
per share.
9
PLAN OF DISTRIBUTION
Each Selling Stockholder (the "Selling Stockholders") of the common stock
("Common Stock") of Airtrax, Inc., a New Jersey corporation (the "Company") and
any of their pledgees, assignees and successors-in-interest may, from time to
time, sell any or all of their shares of Common Stock on the American Stock
Exchange or any other stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. A Selling Stockholder may use any one or more of the
following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o settlement of short sales;
o broker-dealers may agree with the Selling Stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The selling shareholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved. One
of the Selling Stockholders, First Montauk Securities Corp., is a registered
broker dealer and NASD member firm. First Montauk served as placement agent in
our recently completed private placement offering, and received, in addition to
commissions, warrants to purchase an aggregate of 360,000 shares of our Common
Stock with an exercise price of $1.25 per share. The registration statement of
which this Prospectus forms a part includes the shares underlying the warrants
held by First Montauk. In addition, First Montauk has been retained as a
financial consultant to Airtrax, for which it received cash compensation of
$30,000.
In connection with the sale of our common stock or interests therein, the
Selling Stockholders may enter into hedging transactions with broker-dealers or
other financial institutions, which may in turn engage in short sales of the
common stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The Selling
Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
10
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Each Selling Stockholder has informed the
Company that it does not have any agreement or understanding, directly or
indirectly, with any person to distribute the Common Stock, however, they may
elect to sell their shares through First Montauk Securities Corp. as described
below. As a broker dealer who is also a selling shareholder, First Montauk may
be deemed an underwriter with respect to the shares it may sell pursuant to this
Prospectus.
In order to comply with the securities laws of some states, the selling
shareholders must sell the shares in those states only through registered or
licensed brokers or dealers. In addition, in some states the Selling
Stockholders must sell the shares only if we have registered or qualified those
shares for sale in the applicable state or an exemption from the registration or
qualification requirement is available and the selling shareholder complies with
the exemption.
The Company is required to pay certain fees and expenses incurred by the Company
incident to the registration of the shares. The Company has agreed to indemnify
the Selling Stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
Because Selling Stockholders may be deemed to be "underwriters" within the
meaning of the Securities Act, they will be subject to the prospectus delivery
requirements of the Securities Act. In addition, any securities covered by this
prospectus which qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than under this prospectus. Each Selling
Stockholder has advised us that they have not entered into any agreements,
understandings or arrangements with any underwriter or broker-dealer regarding
the sale of the resale shares. There is no underwriter or coordinating broker
acting in connection with the proposed sale of the resale shares by the Selling
Stockholders.
First Montauk Securities Corp. served as placement agent in connection with the
private placement offering recently completed by us in which we raised
$2,880,100 in gross proceeds. First Montauk is a National Association of
Securities Dealers, Inc. member brokerage firm. First Montauk received 360,000
warrants as compensation for its services as placement agent. The warrants have
an exercise price of $1.25 per share. The warrants expire on May 13, 2009. The
360,000 shares of common stock issued or issuable upon conversion of placement
agent warrants received by First Montauk are restricted from sale, transfer,
assignment or hypothecation for a period of six months from the effective date
of this Registration Statement except to officers or partners (not directors) of
First Montauk and members of the selling group and/or their officers or
partners.
First Montauk has indicated to us its willingness to act as selling agent on
behalf of the selling shareholders named in the Prospectus under "Selling
Stockholders" that purchased our privately placed securities. All shares sold,
if any, on behalf of selling shareholders by First Montauk would be in
transactions executed by First Montauk on an agency basis and commissions
charged to its customers in connection with each transaction shall not exceed a
maximum of 4.5 % of the gross proceeds. First Montauk does not have an
underwriting agreement with us and/or the selling shareholders and no selling
shareholders are required to execute transactions through First Montauk. In the
event that there are other broker dealer firms involved in the distribution of
securities on behalf of selling shareholders, the maximum commission or discount
to be received will not be greater than 8% of the sale of any securities which
were registered pursuant to this prospectus under SEC Rule 415.
NASD Notice to Members 88-101 states that in the event a selling shareholder
intends to sell any of the shares registered for resale in this Prospectus
through a member of the NASD participating in a distribution of our securities,
such member is responsible for insuring that a timely filing is first made with
the Corporate Finance Department of the NASD and disclosing to the NASD the
following:
11
o it intends to take possession of the registered securities or to
facilitate the transfer of such certificates;
o the complete details of how the selling shareholders shares are
and will be held, including location of the particular accounts;
o whether the member firm or any direct or indirect affiliates
thereof have entered into, will facilitate or otherwise
participate in any type of payment transaction with the selling
shareholders, including details regarding any such transactions;
and
o in the event any of the securities offered by the selling
shareholders are sold, transferred, assigned or hypothecated by
any selling shareholder in a transaction that directly or
indirectly involves a member firm of the NASD or any affiliates
thereof, that prior to or at the time of said transaction the
member firm will timely file all relevant documents with respect
to such transaction(s) with the Corporate Finance Department of
the NASD for review.
No persons associated with us or the selling shareholders may participate in the
distribution of the shares to be offered by selling shareholders unless they
meet the safe harbor provisions of the SEC Rule 3a4-1 promulgated under the
Securities Exchange Act of 1934 with respect to exemption from registration as a
broker/dealer.
We agreed to keep this prospectus effective until the earlier of (i) the date on
which the shares may be resold by the Selling Stockholders without registration
and without regard to any volume limitations by reason of Rule 144(e) under the
Securities Act or any other rule of similar effect or (ii) all of the shares
have been sold pursuant to the prospectus or Rule 144 under the Securities Act
or any other rule of similar effect. The resale shares will be sold only through
registered or licensed brokers or dealers if required under applicable state
securities laws. In addition, in certain states, the resale shares may not be
sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is
available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the resale shares may not simultaneously engage
in market making activities with respect to our common stock for a period of two
business days prior to the commencement of the distribution. In addition, the
Selling Stockholders will be subject to applicable provisions of the Exchange
Act and the rules and regulations thereunder, including Regulation M, which may
limit the timing of purchases and sales of shares of our common stock by the
Selling Stockholders or any other person. We will make copies of this prospectus
available to the Selling Stockholders and have informed them of the need to
deliver a copy of this prospectus to each purchaser at or prior to the time of
the sale.
Any selling shareholder may from time to time pledge or grant a security
interest in some or all of the shares of common stock or warrants owned by them
and, if they default in the performance of their secured obligations, the
pledgees or secured parties may offer and sell the shares of common stock from
time to time under this prospectus, or under an amendment to this prospectus
under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933
amending the list of selling shareholders to include the pledgee, transferee or
other successors in interest as selling shareholders under this prospectus.
The selling shareholders also may transfer the shares of common stock in
other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for purposes of this
prospectus.
At the time a selling shareholder makes a particular offer of shares we
will, if required under applicable rules and regulations, distribute a
Prospectus supplement that will set forth:
the number of shares that the Selling Holder is offering;
the terms of the offering, including the name of any underwriter,
dealer or agent;
the purchase price paid by any underwriter;
any discount, commission and other underwriter compensation;
any discount, commission or concession allowed or reallowed or paid to
any dealer; and
12
the proposed selling price to the public.
We will not receive any proceeds from sales of any shares by the
selling shareholders.
13
DESCRIPTION OF SECURITIES TO BE REGISTERED
Our authorized capital stock consists of 20,000,000 shares of Common Stock
without par value.
The following is a description of the material terms of our common stock.
COMMON STOCK
The holders of the issued and outstanding shares of common stock are entitled to
receive dividends when, as and if declared by our Board of Directors out of any
funds lawfully available therefore. The Board of Directors intends to retain
future earnings to finance the development and expansion of our business and
does not expect to declare any dividends in the foreseeable future. The holders
of the common stock have the right, in the event of liquidation, to receive pro
rata all assets remaining after payment of debts and expenses. The common stock
does not have any preemptive rights and does not have cumulative voting rights.
The issued and outstanding shares of common stock are fully paid and
nonassessable.
Holders of shares of common stock are entitled to vote at all meetings of such
shareholders for the election of directors and for other purposes. Such holders
have one vote for each share of common stock held by them.
TRANSFER AGENT
Signature Stock Transfer has been appointed the transfer agent of our common
stock and preferred stock.
LEGAL MATTERS
The validity of the issuance of the shares being offered hereby will be passed
upon for us by Sichenzia Ross Friedman Ference LLP, New York, New York.
EXPERTS
The financial statements as of December 31, 2003 and for the years ended
December 31, 2003 and 2002 incorporated in this prospectus, to the extent and
for the periods indicated in their reports, have been audited by Robert G.
Jeffrey, Certified Public Accountant and are included herein in reliance upon
the authority of this firm as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTIONS.
SEC registration fee..................................... $ 881.89
Legal fees and expenses.................................. $35,881.90
Total.................................................... $36,900.00
ITEM 15. 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 indemnifies 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
14
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 16. EXHIBITS.
The exhibits filed as part of this Registration Statement are as follows:
EXHIBIT DESCRIPTION
NUMBER
5.1 Opinion of Counsel
23.1 Consent of Accountants
ITEM 17. 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:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933, as amended;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof), which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes on volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(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,
15
2. That, for the purpose of determining any liability under the Securities Act
of 1933, as amended, 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.
4. Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Act"), 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.
5. The undersigned registrant hereby undertakes 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 14-a or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulations 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.
16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant, Airtrax, Inc., certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-2 and has duly caused
this Registration Statement on Form S-2 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Hammonton, State of New
Jersey on the 11th day of August 2004.
AIRTRAX, INC.
Name: /s/ Peter Amico
----------------
Peter Amico
Title: President, Chief Executive Officer and
Acting Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Peter Amico
his or her true and lawful attorney in fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any or all amendments (including
post effective amendments) to the Registration Statement, and to sign any
registration statement for the same offering covered by this Registration
Statement that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and all post effective amendments thereto,
and to file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, 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 to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, each acting alone, or his or her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement on Form S-2 has been signed below by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
---------------------------- ----------------------------- -------------------
By: /s/ Peter Amico President, Chief
--------------- Executive Officer, Acting August 11, 2004
Peter Amico Chief Financial Officer
and Director
By: /s/ D. Barney Harris
---------------------
D. Barney Harris Director August 11, 2004
By: /s/ James Hudson
-----------------
James Hudson Director August 11, 2004
By: /s/ Frank Basile
-----------------
Frank Basile Director August 11, 2004
By: /s/ William Hungerville
-----------------------
William Hungerville Director August 11, 2004
17