As filed with the Securities and Exchange Commission on February 28, 2002
Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
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TORQUE ENGINEERING CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
83-0317306
(I.R.S. Employer Identification No.)
2932 THORNE DRIVE
ELKHART, INDIANA 46514
(Address of Principal Executive Offices)
CONSULTING AGREEMENT
(Full Title of the Plan)
RICHARD D. WEDEL
2932 THORNE DRIVE
ELKHART, INDIANA 46514
(Name and Address of Agent For Service)
(219) 264-2628
(Telephone Number, Including Area Code, of Agent for Service)
COPY TO:
Clayton E. Parker, Esq.
Ronald S. Haligman, Esq.
Kirkpatrick & Lockhart LLP
201 South Biscayne Boulevard, Suite 2000
Miami, Florida 33131
CALCULATION OF REGISTRATION FEE
=========================== ======================== ========================= ======================== =========================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED TO BE REGISTERED PER SHARE (1) PRICE (1) REGISTRATION FEE (1)
--------------------------- ------------------------ ------------------------- ------------------------ -------------------------
Common Stock, par
value $0.0001 per
share 900,000 shares $0.09 $81,000 $19.36
--------------------------- ------------ ----------- ------------------------- ------------------------ -------------------------
(1) Pursuant to Rule 457(h)(1) of the Securities Exchange Act of 1934, the
proposed maximum offering price per share, proposed maximum aggregate
offering price and amount of registration fee were computed based upon
the average of the high and low prices of the shares of Common Stock on
February 25, 2002.
PART I
INFORMATION REQUIRED IN THIS
SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Act"). Such documents need not be filed with the Securities and
Exchange Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents,
which include the statement of availability required by Item 2 of Form S-8, and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Act.
PART II
INFORMATION REQUIRED IN THIS
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents have been previously filed by Torque
Engineering Corporation (the "Company") with the Securities and Exchange
Commission (the "Commission") and are hereby incorporated by reference into this
Registration Statement as of their respective dates:
(a) The Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 2000 filed with the Commission on March 29, 2001.
(b) The description of the Company's Common Stock contained in
its Registration Statement on Form SB-2 filed with the Commission on December
17, 2001 as amended, pursuant to the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, after the date of this Registration Statement, but prior to
the filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered by this Registration Statement have been
sold or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement. Each
document incorporated by reference into this Registration Statement shall be
deemed to be a part of this Registration Statement from the date of the filing
of such document with the Commission until the information contained therein is
superseded or updated by any subsequently filed document that is incorporated by
reference into this Registration Statement or by any document that constitutes
part of the prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
The Company will indemnify each director, to the fullest extent
permitted by law, from and against any and all claims of any type arising from
or related to his past or future acts or omissions as a director or officer of
the Company and any of our subsidiaries. In addition, the Company has agreed to
advance all expenses of each director as they are incurred and in advance of the
final disposition of any claim.
2
Pursuant to our Certificate of Incorporation, each person (and the
heirs, executors or administrators of such person) who was or is a party or is
threatened to be made a party to, or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director or
officer of the Company or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture trust or
other enterprise, shall be indemnified and held harmless by the Company to the
fullest extent permitted by Delaware law. The right to indemnification conferred
herein shall also include the right to be paid by the corporation the expenses
incurred in connection with any such proceeding in advance of its final
disposition to the fullest extent authorized by Delaware law. The Company's
Certificate of Incorporation further eliminates personal liability of a director
to the Company or to any of our stockholders for monetary damages for a breach
of fiduciary duty as a director to the fullest extent permitted by Delaware law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
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ITEM 8. EXHIBITS.
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EXHIBIT NO. DESCRIPTION LOCATION
-------------------- ---------------------------------------------- ---------------------------------------------
5.1 Opinion of Kirkpatrick & Lockhart LLP re: Provided herewith
legality
23.1 Consent of Kirkpatrick & Lockhart LLP Provided herewith (contained in Exhibit 5.1)
23.2 Consent of Weinberg & Company, P.A. Provided herewith
24.1 Power of Attorney Provided herewith
99.1 Consulting Agreement, dated February 25, 2002 Provided herewith
by and between Torque Engineering Corporation
and Peter Cardillo
ITEM 9. UNDERTAKINGS.
------------
(a) The undersigned registrant will:
(1) File, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3)
of the Act;
(ii) 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 in 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;
(iii) Include any additional or changed 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) For purposes of determining any liability under the
Securities Act, treat each post-effective amendment as 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) File a post-effective amendment to remove from
registration any of the securities that remain unsold at the end 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 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
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(c) 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 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Articles 3 of Regulation S-X is 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.
(d) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Elkhart, Indiana, on February 27, 2002.
TORQUE ENGINEERING CORPORATION
By: /s/ Richard D. Wedel
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Printed Name: Richard D. Wedel
Title: Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard D. Wedel, his true and lawful
attorney-in-fact and agent, with full power of substitution and revocation, for
him and in his name, place and stead, in any and all capacities (until revoked
in writing), 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
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done as fully for all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his 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 has been signed by the following persons in the
capacities indicated, which together constitute a majority of the board of
directors of the Company.
Date: February 27, 2002 By: /s/ Richard D. Wedel
--------------------------------------
Printed Name: Richard D. Wedel
Title: Chief Executive Officer and Director
and Chairman of the Board of Directors
Date: February 27, 2002 By: /s/ Raymond B. Wedel, Jr.
--------------------------------------
Printed Name: Raymond B. Wedel, Jr.
Title: President and Director
Date: February 27, 2002 By: /s/ I. Paul Arcuri
---------------------------------------
Printed Name: I. Paul Arcuri
Title: Chief Financial Officer and Director
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EXHIBIT LIST
EXHIBIT NO. DESCRIPTION LOCATION
-------------------- ---------------------------------------------- ----------------------------------------------
5.1 Opinion of Kirkpatrick & Lockhart LLP re: Provided herewith
legality
23.1 Consent of Kirkpatrick & Lockhart LLP Provided herewith (contained in Exhibit 5.1)
23.2 Consent of Weinberg & Company, P.A. Provided herewith
24.1 Power of Attorney Provided herewith
99.1 Consulting Agreement, dated February 25, 2002 Provided herewith
by and between Torque Engineering Corporation
and Peter Cardillo