This document contains 17 pages.
Exhibit Index appears at page 11.
The Registrant requests that the Registration
Statement become effective immediately upon
filing pursuant to Securities Act Rule 462.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TORVEC, INC.
(Exact Name of issuer as specified in its charter)
New York 16-1509512
(State or other jurisdiction (IRS Employer ID Number)
of incorporation or organization)
3740 Route 104, Williamson, New York 14587
(Address of Principal Executive Offices) (Zip Code)
TORVEC, INC. BUSINESS CONSULTANTS STOCK PLAN
(Full Title of the Plan)
RICHARD B. SULLIVAN, ESQ.
CHAMBERLAIN, D'AMANDA, OPPENHEIMER & GREENFIELD
1600 Crossroads Office Building
Rochester, New York 14614
(Name and Address of agent for service)
716/232-3730
(Telephone Number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
</CAPTION>
<S> <C> <C> <C> <C>
PROPOSED
TITLE OF PROPOSED MAXIMUM
SECURITIES MAXIMUM AGGREGATE AMOUNT OF
TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(4) PER SHARE PRICE FEE
Common Stock 200,000 (1) (2) (1) (2) $284.95(3)
Par Value shares
$0.01 per
share
</TABLE>
(1) The Shares registered pursuant to this Registration
Statement will not be sold to members of the general
public but solely to executive business consultants
and advisors of Torvec, Inc. in exchange for bona fide
services rendered by such consultants and advisors as
authorized by the Board of Directors of Torvec, Inc.
(2) Under the terms of the Torvec, Inc. Business
Consultants Stock Plan, 200,000 shares of the
Company's $.01 par value common stock may be issued
to business consultants and advisors who are
natural persons who have provided bona fide
services to the Company, provided that such
services are not in connection with the offer or
sale of securities in a capital-raising
transaction, and do not directly or indirectly
promote or maintain a market for the Company's
securities.
(3) Statutory Fee: Section 6(b) of the Securities Act
of 1933 and Rule 457(c). The average of the bid
and asked price on June 3, 1999 (a specified
date within 5 business days prior to the date of
filing the Registration Statement) was $5.125.
Based upon the statutory formula contained in
Section 6(b), the Registration Fee is $284.95.
2
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
Items Page
Item 3. Incorporation of Documents 4
by Reference
Item 4. Description of Securities N/A
Item 5. Interests of Named Experts 4
and Counsel
Item 6. Indemnification of Directors 5
and Officers
Item 7. Exemption from Registration N/A
Claimed
Item 8. Undertakings 8
Item 9. Exhibits 9
Signatures 10
</TABLE>
3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Registrant hereby states that the following
documents, listed in subparagraphs (a) through (c) below
are incorporated by reference in this Registration
Statement:
<TABLE>
<S> <C>
(a) The Registrant's latest annual report (Form 10-
KSB), filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 containing audited
financial statements for the Registrant's latest
fiscal year;
(b) All other Reports, including Quarterly Reports
(Form 10-QSB) and Current Reports (Form 8-K) filed
pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 since the end of the fiscal
year covered by the Registrant's latest annual report
(Form 10-KSB); and
(c) A description of the class of securities to be
offered as registered under Section 12 of the
Securities Exchange Act of 1934 as contained in the
Form 10-SB/A Registration Statement filed under such
Act, including any amendment or report filed for the
purpose of updating such description.
</TABLE>
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, 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 in this Registration
Statement and to be a part hereof from the date of the
filing of such documents.
INTERESTS OF NAMED EXPERTS AND COUNSEL
LEGAL MATTERS
Certain legal matters with respect to the validity of
the shares of Common Stock issued pursuant to this
Registration Statement will be passed upon for the Company
by Chamberlain, D'Amanda, Oppenheimer & Greenfield, general
counsel to the Company. The partners of Chamberlain,
D'Amanda, Oppenheimer & Greenfield own 95,000 shares of the
Company's Common Stock which were received for the
performance of services rendered in connection with legal
matters associated with the formation of the Company. The
Company intends to issue an additional 19,093 shares to the
partners of Chamberlain, D'Amanda in payment for legal
services of an ongoing nature rendered to the Company by the
firm. Such additional shares are among the shares covered
by this Registration Statement.
No other expert named in the Registration
Statement as having prepared or certified any part
thereof or is named as having prepared or certified a
report for use in connection with the Registration
Statement or incorporated by reference therein has
received, or is to receive in connection with the
offering to which the Registration Statement pertains,
a substantial interest, direct or indirect, in the
Registrant.
4
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The By-Laws of the Registrant, in Article XI
thereof, provide for the indemnification of the
Registrant's Officers and Directors in certain
circumstances as follows:
1. GENERALLY
Each person who was or is made a party or is
threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact
that he or his testator or intestate (a) is or was a
director or officer of the Corporation or (b) is or
was a director or officer of the Corporation who
serves or served, in any capacity, any other
corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise at the
request of the Corporation (hereinafter an
"Indemnitee"), shall be indemnified and held harmless
by the Corporation against all expense, liability and
loss including ERISA excise taxes or penalties,
judgments, fines, penalties, amounts paid in
settlement (provided the Corporation shall have given
its prior consent to such settlement, which consent
shall not be unreasonably withheld by it) and
reasonable expenses, including attorneys' fees
suffered or incurred by such Indemnitee in connection
therewith and such indemnification shall continue as
to an Indemnitee who has ceased to be a director or
officer and shall inure to the benefit of the
Indemnitee's heirs and fiduciaries; provided,
however, that no indemnification may be made to or on
behalf of any director or officer if his acts were
committed in bad faith or were the result of active
and deliberate dishonesty and were material to the
cause of action so adjudicated or otherwise disposed
of, or he personally gained in fact a financial
profit or other advantage to which he was not legally
entitled. Notwithstanding the foregoing, except as
contemplated by Section 3 hereof, the Corporation
shall indemnify any such Indemnitee in connection
with a proceeding (or part thereof) initiated by such
Indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the
Corporation.
2. ADVANCEMENT OF EXPENSES
All expenses reasonably incurred by an
Indemnitee in connection with a threatened or actual
proceeding with respect to which any such Indemnitee
is or may be entitled to indemnification under this
Article shall be advanced to him or promptly
reimbursed by the Corporation in advance of the final
disposition of such proceeding, upon receipt of an
undertaking by him or on his behalf to repay the
amount of such advances, if any, as to which he is
ultimately found not to be entitled to
indemnification or, where indemnification is granted,
to the extent such advances exceed the
indemnification to which he is entitled. Such person
shall cooperate in good faith with any request by the
Corporation that common counsel be used by the
parties to an action or proceeding who are similarly
situated unless to do so would be inappropriate due
to an actual or potential conflict of interest.
5
3. PROCEDURE FOR INDEMNIFICATION
(a) Not later than thirty (30) days following
final disposition of a proceeding with respect to
which the Corporation has received written request by
an Indemnitee for indemnification pursuant to this
Article or with respect to which there has been an
advancement of expenses pursuant to Section 2 of this
Article, if such indemnification has not been ordered
by a court, the Board of Directors shall meet and
find whether the Indemnitee met the standard of
conduct set forth in Section 1 of this Article, and,
if it finds that he did, or to the extent it so
finds, shall authorize such indemnification.
(b) Such standard shall be found to have been
met unless (i) a judgment or other final adjudication
adverse to the Indemnitee established that the
standard of conduct set forth in Section 1 of this
Article was not met, or (ii) if the proceeding was
disposed of other than by judgment or other final
adjudication, the Board finds in good faith that, if
it had been disposed of by judgment or other final
adjudication, such judgment or other final
adjudication would have been adverse to the
Indemnitee and would have established that the
standard of conduct set forth in Section 1 of this
Article was not met.
(c) If the Board fails or is unable to make the
determination called for by paragraph (a) of this
Section 3, or if indemnification is denied, in whole
or in part, because of an adverse finding by the
Board, or because the Board believes the expenses for
which indemnification is requested to be
unreasonable, such action, inaction or inability of
the Board shall in no way affect the right of the
Indemnitee to make application therefor in any court
having jurisdiction thereof. In such action or
proceeding, or in a suit brought by the Corporation
to recover an advancement of expenses pursuant to the
terms of an undertaking, the issue shall be whether
the Indemnitee met the standard of conduct set forth
in Section 1 of this Article, or whether the expenses
were reasonable, as the case may be (not whether the
finding of the Board with respect thereto was
correct.) If the judgment or other final
adjudication in such action or proceeding establishes
that the Indemnitee met the standard set forth in
Section 1 of this Article, or that the disallowed
expenses were reasonable, or to the extent that it
does, the Board shall then find such standard to have
been met or the expenses to be reasonable, and shall
grant such indemnification, and shall also grant to
the Indemnitee indemnification of the expenses
incurred by him in connection with the action or
proceeding resulting in the judgment or other final
adjudication that such standard of conduct was met,
or if pursuant to such court determination such
person is entitled to less than the full amount of
indemnification denied by the Corporation, the
portion of such expenses proportionate to the amount
of such indemnification shall be so awarded. Neither
the failure of the Board to have made timely a
determination prior to the commencement of such suit
that indemnification of the Indemnitee is proper in
the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in Section
1, nor an actual determination by the Board that the
Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the
Indemnitee has not met the applicable standard of
conduct. In any suit brought by the Indemnitee to
enforce a right to indemnification, or by the
Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden
of proving that the Indemnitee is not entitled to
indemnification, under this Article or otherwise,
shall be on the Corporation.
(d) A finding by the Board pursuant to this
Section 3 that the standard of conduct set forth in
Section 1 of this Article has been met shall mean a
finding of the Board or shareholders as provided by
law.
6
4. CONTRACTUAL ARTICLE
The rights conferred by this Article are
contract rights which shall not be abrogated by any
amendment or repeal of this Article with respect to
events occurring prior to such amendment or repeal
and shall, to the fullest extent permitted by law, be
retroactive to events occurring prior to the adoption
of this Article. No amendment of the Business
Corporation Law, insofar as it reduces the
permissible extent of the right of indemnification of
an indemnitee under this Article, shall be effective
as to such person with respect to any event, act or
omission occurring or allegedly occurring prior to
the effective date of such amendment irrespective of
the date of any claim or legal action in respect
thereto. This Article shall be binding on any
successor to the Corporation, including any
corporation or other entity which acquires all or
substantially all of the Corporation's assets.
5. NON-EXCLUSIVITY
The indemnification provided by this Article
shall not be deemed exclusive of any other rights to
which any person covered hereby may be entitled other
than pursuant to this Article. The Corporation is
authorized to enter into agreements with any such
person providing rights to indemnification or
advancement of expenses in addition to the provisions
therefor in this Article, and the Corporation's
shareholders and its Board of Directors are
authorized to adopt, in their discretion, resolutions
providing any such person with any such rights.
6. INSURANCE
The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer,
employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or
loss, whether or not the Corporation would have the
power to indemnify such person against such expense,
liability or loss under this Article or applicable
law.
7.INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION
The Corporation may, to the extent authorized
from time to time by the Board of Directors, grant
rights to indemnification and the advancement of
expenses to any employee or agent of the Corporation
with the same scope and effect as provided in this
Article to directors and officers of the Corporation.
7
UNDERTAKINGS
(a) Rule 415 Offering
The undersigned Registrant will:
(1) File, during any period in which it
offers or sells securities, a post-effective amendment
to this Registration Statement to:
(i) N/A;
(ii) N/A;
(iii) include any
additional or changed material
information on the plan of
distribution.
(2) For determining liability under the
Securities Act, treat each post-effective amendment as a new
registration of the securities offered, and the offering of
securities at that time 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
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.
(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.
8
EXHIBITS
<TABLE>
<S> <C> <C>
Exhibit
Number Description Page
(4) Instruments defining the rights of N/A
security holders
Incorporated By Reference to Form
10-SB/A as updated by Quarterly
Report (Form 10-QSB) for period
ending September 30, 1998, and
exhibits filed therewith
(5) Opinion of Counsel
5.1 Opinion of Counsel re: 12
legality
(15) Letter re: Unaudited interim N/A
financial information
(23) Consents of Experts and Counsel
23.1 Independent Auditors' 14
Consent
23.2 Consent of Counsel 15
(24) Power of Attorney N/A
(25) Statement of Eligibility of Trustee N/A
(27) Financial Data Schedule N/A
(99) Additional Exhibits
99.1 Resolutions adopted by the 17
Board of Directors of
Torvec, Inc. creating
Torvec, Inc. Business
Consultants Stock Plan
</TABLE>
9
SIGNATURES
Pursuant to 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
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 the City of
Rochester, State of New York on June 2, 1999.
TORVEC, INC.
BY:/S/ KEITH E. GLEASMAN
--------------------------
KEITH E. GLEASMAN, President
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities and on the date
indicated.
Date: June 2, 1999 /S/ HERBERT H. DOBBS
--------------------------
Herbert H. Dobbs, Chairman
of Board of Directors
Date: June 2, 1999 /S/ KEITH E. GLEASMAN
--------------------------
Keith E. Gleasman,
President and Director
Date: June 2, 1999 /S/ MORTON A. POLSTER
--------------------------
Morton A. Polster,
Secretary and Director
Date: June 2, 1999 /S/ LEE E. SAWYER
-------------------------
Lee E. Sawyer, Director
Date: June 2, 1999 /S/ JAMES A. GLEASMAN
-------------------------
James A. Gleasman,
Director
Date: June 2, 1999 /S/ SAMUEL M. BRONSKY
------------------------
Samuel M. Bronsky, Chief
Financial Officer
10
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
Exhibit
Number Description Page
(4) Instruments defining the rights of N/A
security holders
Incorporated By Reference to Form 10-
SB/A as updated by Quarterly Report
(Form 10-QSB) for period ending
September 30, 1998, and exhibits
filed therewith
(5) Opinion of Counsel
5.1 Opinion of Counsel re: 12
legality
(15) Letter re: Unaudited interim N/A
financial information
(23) Consents of Experts and Counsel
23.1 Independent Auditors' 14
Consent
23.2 Consent of Counsel 15
(24) Power of Attorney N/A
(25) Statement of Eligibility of Trustee N/A
(27) Financial Data Schedule N/A
(99) Additional Exhibits
99.1 Resolutions adopted by 17
the Board of Directors
of Torvec, Inc. creating
Torvec, Inc. Business
Consultants Stock Plan
</TABLE>
11
EXHIBIT 5.1
June 3, 1999
Torvec, Inc.
3740 Route 104
Williamson, New York 14587
Gentlemen:
We have examined the corporate records and proceedings
of Torvec, Inc., a New York business corporation
(hereinafter referred to as "Company"), with respect to:
1. The organization of the Company;
2. The legal sufficiency of all corporate
proceedings of the Company taken in connection with the
creation, issuance, all of the present outstanding and
issued stock of the Company; and
3. The legal sufficiency of all corporate
proceedings of the Company taken in connection with the
creation, issuance, form and validity, and full payment and
nonassessability when issued, of the 200,000 shares of the
$.01 par value Common Stock of the Company ("Registered
Shares") covered by the Registration Statement (hereinafter
referred to as the "Registration Statement") as dated as
of June 2, 1999.
Based upon such examination, we are of the opinion
that:
(a) Torvec, Inc. is duly organized and validly
existing under the laws of the State of New York;
(b) The Company is authorized to issue 40,000,000
shares of Common Stock of the par value of $.01 per share,
of which 20,833,916 shares of such Common Stock have been
issued and are presently outstanding;
12
Torvec, Inc.
June 3, 1999
Page 2
(c) The Company has taken all necessary and required
corporate proceedings in connection with the creation and
issuance of the said presently issued stock of the Company,
and all of said stock so issued has been validly issued, is
fully paid and nonassessable, and in all respects is in
proper form; and
(d) When the Registration Statement shall have become
effective and the Registered Shares shall have been issued
and sold upon the terms and conditions set forth in the
Registration Statement, the Company's shares will be
validly authorized and legally issued, fully paid and
nonassessable and in all respects in proper form.
We hereby consent:
(1) To be named in the Registration Statement, as the
attorneys who will pass upon legal matters in connection
with an issuance of the Company's shares; and
(2) To the filing of this opinion as Exhibits 5.1 and
23.2 to the Registration Statement.
Very truly yours,
CHAMBERLAIN D'AMANDA
OPPENHEIMER & GREENFIELD
By: /S/ ROBERT OPPENHEIMER
-----------------------
Robert Oppenheimer
13
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated
February 10, 1999 (with respect to Note G[1], February 22,
1999), on our audits of the financial statements of Torvec,
Inc. (the "Company") as of December 31, 1998 and for the
years ended December 31, 1998 and 1997 and September 25,
1996 (inception) through December 31, 1998 included in the
Company's Annual Report on Form 10-KSB.
/S/ RICHARD A. EISNER & COMPANY, LLP
Richard A. Eisner & Company, LLP
New York, New York
June 9, 1999
14
EXHIBIT 23.2
June 3, 1999
Torvec, Inc.
3740 Route 104
Williamson, New York 14587
Gentlemen:
We have examined the corporate records and proceedings
of Torvec, Inc., a New York business corporation
(hereinafter referred to as "Company"), with respect to:
1. The organization of the Company;
2. The legal sufficiency of all corporate
proceedings of the Company taken in connection with the
creation, issuance, all of the present outstanding and
issued stock of the Company; and
3. The legal sufficiency of all corporate
proceedings of the Company taken in connection with the
creation, issuance, form and validity, and full payment and
nonassessability when issued, of the 200,000 shares of the
$.01 par value Common Stock of the Company ("Registered
Shares") covered by the Registration Statement (hereinafter
referred to as the "Registration Statement") as dated as of
June 2, 1999.
Based upon such examination, we are of the opinion
that:
(a) Torvec, Inc. is duly organized and validly
existing under the laws of the State of New York;
(b) The Company is authorized to issue 40,000,000
shares of Common Stock of the par value of $.01 per share,
of which 20,833,916 shares of such Common Stock have been
issued and are presently outstanding;
15
Torvec, Inc.
June 3, 1999
Page 2
(c) The Company has taken all necessary and required
corporate proceedings in connection with the creation and
issuance of the said presently issued stock of the Company,
and all of said stock so issued has been validly issued, is
fully paid and nonassessable, and in all respects is in
proper form; and
(d) When the Registration Statement shall have become
effective and the Registered Shares shall have been issued
and sold upon the terms and conditions set forth in the
Registration Statement, the Company's shares will be
validly authorized and legally issued, fully paid and
nonassessable and in all respects in proper form.
We hereby consent:
(1) To be named in the Registration Statement, as the
attorneys who will pass upon legal matters in connection
with an issuance of the Company's shares; and
(2) To the filing of this opinion as Exhibits 5.1 and
23.2 to the Registration Statement.
Very truly yours,
CHAMBERLAIN D'AMANDA
OPPENHEIMER & GREENFIELD
By: /S/ ROBERT OPPENHEIMER
-----------------------
Robert Oppenheimer
16
EXHIBIT 99.1
TORVEC, INC.
Consent by All Directors
To Action Without a Meeting
Pursuant to Section 708(b) of the Business Corporation Law
The undersigned being all of the directors of TORVEC, INC.
hereby consent to the following actions without a meeting:
RESOLVED, that there is hereby adopted the
Torvec, Inc. Business Consultants Stock Plan
pursuant to which 200,000 shares of the
Company's $.01 par value common stock may be
issued from time to time to business consultants
and advisors who are natural persons who have
provided bona fide services to the Company,
provided that such services are not in
connection with the offer or sale of securities
of the Company in a capital-raising transaction,
and do not directly or indirectly promote or
maintain a market for the Company's securities;
and be it further
RESOLVED, with respect to the issuance by the
Company of shares for services rendered in
accordance with the terms of the Torvec, Inc.
Business Consultants Plan, the per share value
of such shares shall equal the closing price for
the Company's $.01 par value common stock on a
date which is one business day immediately prior
to the issuance of said shares, as quoted either
in the Over-the-Counter Market Bulletin Board or
as quoted by the National Association of
Securities Dealers SmallCap Market System; and
be it further
RESOLVED, that the Company shall use its best
efforts to register the shares to be issued its
Business Consultants Stock Plan with the
Securities and Exchange Commission so that such
shares upon such registration shall be freely
tradable and shall not constitute restricted
stock as that term is defined in Rule 144 in the
hands of such consultants and/or advisors.
Adopted by unanimous consent, without a meeting, as of this
2nd day of June, 1999.
/S/ HERBERT H. DOBBS
--------------------------
Herbert H. Dobbs, Director
/S/ KEITH E. GLEASMAN
--------------------------
Keith E. Gleasman, Director
/S/ LEE E. SAWYER
--------------------------
Lee E. Sawyer, Director
/S/ MORTON A. POLSTER
--------------------------
Morton A. Polster, Director
/S/ JAMES A. GLEASMAN
--------------------------
James A. Gleasman, Director
17
