As filed with the Securities and Exchange Commission on April 14, 1998
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
THE TIREX CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 3282985
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
740 St. Maurice, Suite 201
Montreal, Quebec H3C 1L5
(Address of Principal Executive Offices) (Zip Code)
PUERTO RICAN MARKET DEVELOPMENT
AND BUSINESS CONSULTING AGREEMENT
BETWEEN REGISTRANT AND
ALAN EPSTEIN
(Full title of the Plan)
Frances Katz Levine
621 Clove Road
Staten Island, NY 10310
(Name and address, including zip code of agent for services)
(718) 981-8485
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered per Share* Price* Fee
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, Par Value,
$.001 Per Share, Issued
Pursuant to Compensation
Agreement With
Alan Epstein 1,000,000 $ 0.35 $350,000 $106.06
TOTAL 1,000,000 $ 0.35 $350,000 $106.06
===================================================================================================
</TABLE>
* Estimated solely for the purpose of calculating the amount of the registration
fee pursuant to Rule 457(c) on the basis of the average of the closing bid and
ask prices of the Common Stock of the Registrant as traded in the
over-the-counter market and reported in the Electronic Bulletin Board of the
National Association of Securities Dealers on April 9, 1998.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are incorporated by reference in this registration
statement.
(a) Registrant's Annual Report on Form 10-KSB for the fiscal year ended June
30, 1997, filed pursuant to Section 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(b) Registrant's quarterly reports on Forms 10-QSB for the fiscal quarters
ended September 30, 1997 and December 31, 1997, filed pursuant to Section
15(d) of the Exchange Act, and Registrant's Current Reports on Form 8-K,
dated July 11, 1998, (filed with the Commission on August 13, 1998) and
dated February 3, 1998 (filed with the Commission on February 17, 1998.
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14, and 15(d) of the Securities Act and Sections 13(a), 13(c), and 14 of the
Exchange Act after the date of this registration statement and prior to the
filing of a post-effective amendment to this registration statement which
indicates that all securities offered hereunder have been sold, or which
deregisters all securities then remaining unsold under this registration
statement, shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
The authorized capital stock of Registrant consists of seventy million
shares (70,000,000), par value $.001 per share, of which sixty-nine million,
nine hundred thousand (69,900,000) shares are designated Common Stock par value
$.001 per share, and one hundred thousand (100,000) shares are designated Open
Stock, par value $.001 per share. The Open Stock may be issued from time to
time, in one or more classes, or one or more series within any class thereof, in
any manner permitted by law, as determined from time to time by Registrant's
board of directors, and stated in the resolution or resolutions providing for
the issuance of such shares adopted by Registrant's board of directors pursuant
to authority vested in it in Registrant's Certificate of Incorporation, each
class or series to be appropriately designated, prior to the issuance of any
shares thereof, by some distinguishing letter, number designation or title. All
shares of stock in such classes or series may be issued for such consideration
and have such voting powers, full or limited, or no voting powers, and shall
have such designations, preferences and relative, participating, optional, or
other special rights, and qualifications, limitations or restrictions thereof,
permitted by law, as shall be stated and expressed in the resolution or
resolutions,
2
<PAGE>
providing for the issuance of such shares adopted by Registrant's board of
directors pursuant to authority vested in Registrant's Certificate of
Incorporation. The number of shares of stock of any class or series within any
class, so set forth in such resolution or resolutions may be increased (but not
above the total number of authorized shares) or decreased (but not below the
number of shares thereof then outstanding) by further resolution or resolutions
adopted by Registrant's board of directors pursuant to authority vested in it in
Registrant's Certificate of Incorporation.
Registrant's board of directors may determine the times when, the terms
under which and the consideration for which Registrant shall issue, dispose of
or receive subscriptions for its shares, including treasury shares, or acquire
its own shares. The consideration for the issuance of the shares shall be paid
in full before their issuance and shall not be less than the par value per
share. Upon payment of such consideration, such shares shall be deemed to be
fully paid and nonassessable by Registrant.
The holders of shares of Common Stock are entitled to dividends when and
as declared by the Board of Directors from funds legally available therefore
and, upon liquidation, are entitled to share pro rata in any distribution to
shareholders. Holders of the Common Stock have one non-cumulative vote for each
share hold. There are no pre-emptive, conversion or redemption privileges, nor
sinking fund provisions, with respect to the Common Stock.
Stockholders are entitled to one vote of each share of Common Stock held
of record on matters submitted to a vote of stockholders. The Common Stock does
not have cumulative voting rights. As a result, the holders of more than 50% of
the shares of Common Stock voting for the election of directors can elect all of
the directors if they choose to do so, and, in such event, the holders of the
remaining shares of Common Stock will not be able to elect any person or persons
to the board of directors of Registrant.
Item 5. Interest of Named Experts and Counsel.
Frances Katz Levine, counsel to the Registrant, is employed by Registrant
as its corporate and securities counsel. She resigned her positions as a
director and as Secretary of the Registrant on December 22, 1996. Her
resignation was not caused by any disagreement with the Registrant on any matter
relating to the Registrant's operations, policies, or practices. Ms. Levine is
the record and beneficial owner of approximately 6.9% of the Registrant's issued
and outstanding common stock.
Item 6. Indemnification of Directors and Officers.
As permitted by sections 102 and 145 of the Delaware General Corporation
Law, the Registrant's certificate of incorporation eliminates a director's
personal liability for monetary damages to the Registrant and its stockholders
arising from a breach or alleged breach of a director's fiduciary duty except
for liability under section 174 of the Delaware General
3
<PAGE>
Corporation Law or liability for any breach of the director's duty of loyalty to
the Registrant or its stockholders, for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law or for any
transaction from which the director derived an improper personal benefit. The
effect of this provision in the certificate of incorporation is to eliminate the
rights of the Registrant and its stockholders (through stockholders' derivative
suits on behalf of the Registrant) to recover monetary damages against a
director for breach of fiduciary duty as a director (including breaches
resulting from negligent or grossly negligent behavior) except in the situations
described above.
The Registrant's bylaws provide for indemnification of officers, directors
and employees, and the Company has entered into an indemnification agreement
with each officer and director of the Registrant (an Indemnitee"). Under the
bylaws and such indemnification agreements, the Registrant must indemnify an
Indemnitee to the fullest extent permitted by Delaware law for losses and
expenses incurred in connection with actions in which the Indemnitee is involved
by reason of having been a director or employee of the Registrant. The
Registrant is also obligated to advance expenses an Indemnitee may incur in
connection with such actions before any resolution of the action, and the
Indemnitee may sue to enforce his or her right to indemnification or advancement
of expenses.
There is no litigation pending, and neither the Registrant nor any of its
directors know of any threatened litigation, which might result in a claim for
indemnification by any director or officer.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits filed as a part of this Report are as follows:
4.1 Puerto Rican Market Development Agreement, dated April 13, 1998 between
Registrant and Alan Epstein
4.2 Option To Purchase Common Stock, dated April 13, 1998
5.1 Opinion of Frances Katz Levine, Esq., regarding the legality of the
securities being registered under this Registration Statement.
24.1 Consent of Nervoso, Pivirotto, Pinkham & Foster, Certified Public
Accountants, LLC Independent Auditors for the Registrant.
24.2 Consent of Frances Katz Levine, Esq., counsel for the Registrant (set
forth in the opinion of counsel included as Exhibit 5.1).
4
<PAGE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(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;
(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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if 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 this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities /Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (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.
5
<PAGE>
(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.
6
<PAGE>
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 Montreal, Province of Quebec, Canada, on the 13th day
of April 1998.
THE TIREX CORPORATION
By /s/ Terence C. Byrne
-----------------------------
Terence C. Byrne, 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.
Signature Title Date
--------- ----- ----
/s/ Terence C. Byrne President, Chief
- --------------------------- Executive Officer and April 13, 1998
Terence C. Byrne Chief Financial Officer
/s/ Louis V. Muro Vice President in April 13, 1998
- --------------------------- Charge of Engineering
Louis V. Muro
/s/ John L. Threshie, Jr. Secretary and Vice April 13, 1998
- --------------------------- President of Operations
John L. Threshie, Jr.
A Majority of the Board of Directors
/s/ Terence C. Byrne Director April 13, 1998
- ---------------------------
Terence C. Byrne
/s/ Louis V. Muro Director April 13, 1998
- ---------------------------
Louis V. Muro
/s/ John L. Threshie, Jr. Director April 13, 1998
- ---------------------------
John L. Threshie, Jr.
/s/ John G. Hartley Director April 13, 1998
- ---------------------------
John G. Hartley
7
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Documents Page
- ------ ------------------------ ----
4.1 Puerto Rican Market Development Agreement, 9
dated April 13, 1998 between Registrant
and Alan Epstein
4.2 Option To Purchase Common Stock, 18
dated April 13, 1998
5.1 Opinion of Frances Katz Levine, Esq., 24
regarding the legality of the securities
being registered under this Registration Statement.
24.1 Consent of Nevoso, Pivirotto, Pinkham & Foster, 26
Certified Public Accountants,
LLC Independent Auditors for the Registrant.
24.2 Consent of Frances Katz Levine,
counsel for the Registrant (set forth
in the opinion of counsel included as Exhibit 5.1).
8
EXHIBIT 4.1
PUERTO RICAN MARKET DEVELOPMENT
AND BUSINESS CONSULTING AGREEMENT
BETWEEN
THE TIREX CORPORATION
AND
ALAN EPSTEIN
<PAGE>
----------
THE TIREX CORPORATION
----------
PUERTO RICAN MARKET DEVELOPMENT
AND BUSINESS CONSULTING AGREEMENT
Consulting Agreement, made this 13th day of April 1998, to be effective as
of November 1, 1997 (the "Effective Date") between The Tirex Corporation, a
Delaware corporation (the "Corporation"), and Alan Epstein, 10565 Santa Laguna
Drive, Boca Raton, FL 33428 (the "Consultant").
Whereas, the Consultant has expertise and substantial business and
marketing experience and contacts in, but not limited to, Puerto Rico, which can
be highly valuable to the business of the Corporation.
Whereas, since the Effective Date and prior thereto, the Consultant has
been providing to the Corporation, on the terms set forth herein, the consulting
services described in Section 2, of this Agreement;
Whereas, it has at all times since the Effective Date been the intention
of the parties to compensate the Consultant fairly for the services which he has
provided to the Corporation since such date and to set forth the terms and
conditions under which the Consultant has been providing, and will continue to
provide, services, but inadvertently such agreement was not put into writing
prior to the date hereof;
Whereas, the Corporation wishes to compensate the Consultant for the
services rendered by him since the Effective Date and to assure itself of the
continued services of the Consultant for the period provided in this Agreement,
and the Consultant is willing to provide his services to the Corporation for the
said period under the terms and conditions hereinafter provided.
Now, Therefore, Witnesseth, that for and in consideration of the premises
and of the mutual promises and covenants herein contained, the parties hereto
agree as follows:
1. Employment
The Corporation agrees to and does hereby engage the Consultant, and the
Consultant agrees to and does hereby accept engagement by the Corporation for
the six-month period which commenced as of the Effective Date and will end on
April 30, 1998 (the "Engagement Period") as a consultant in connection with: (i)
market development in the Southeastern United States and
<PAGE>
the Caribbean and (ii) assistance in developing and implementing a business plan
pursuant to which the Corporation could expand its business from the development
and manufacturing of its patented cryogenic tire disintegration system (the
"TCS-1") into participating, through joint ventures, or otherwise in the
recycling of scrap tires into useable crumb rubber and other saleable
byproducts.
2. Consulting Services
The services which the Consultant has rendered since the Effective Date
have included, and will, during the balance of the Engagement Period, shall
include, advice and opinions to the Corporation concerning, and the undertaking
and effectuation of activities necessary to: (i) establish and develop in, and
outside of, Puerto Rico markets for the TCS-1 and for the rubber crumb which
will be produced by the operation of the TCS-1 installed in a plant located in
Puerto Rico ("Puerto Rico Plant") and the participation by the Corporation in
the operation, through a joint venture or otherwise, of one or more such Puerto
Rico Plants; (ii) to identify potential partners for, and structure, such joint
venture(s) in Puerto Rico;
The services which the Consultant has rendered since the Effective Date
have included, and will, during the balance of the Engagement Period, include,
the rendering of advice, opinions, "hands-on" assistance, and, in some cases,
effectuation of, the following:
(a) Establish and develop contacts between the Corporation and
government agencies in Puerto Rico with respect to the establishment
and operation of one or more Puerto Rico Plants, including but not
limited to the licensing, permitting, and regulations governing,
such operations;
(b) Scout and locate appropriate sites in Puerto Rico for the
establishment and operation of one or more Puerto Rico Plants;
(c) Assist in developing financial projections respecting the operations
of one or more Puerto Rico Plants and the marketing and sales of
rubber crumb generated thereby, including but not limited to
establishing and developing contacts between the Corporation and
potential customers for the crumb rubber and other products ("TCS-1
Products") projected to be produced by the operations of a Puerto
Rico Plant and work with such potential customers to identify,
create, and develop possible uses for TCS-1 Products;
(d) Assist in developing logistics respecting Plant configuration
necessary for safe and efficient operations-flow at one or more
Puerto Rico Plants;
(e) Develop plans and procedures for transporting TCS-1 Products within
and out of Puerto Rico
<PAGE>
All such services are to be performed only upon direct authorization from
the Corporation. The Consultant shall have the sole discretion as to the form,
manner and place in which the said consulting services shall be rendered. The
Consultant shall by this agreement, be prevented and barred from rendering
services of the same or similar nature, as herein described, or services of any
nature whatsoever, for or in behalf of persons, in the same business of the
Corporation firms or corporations other than the Corporation.
3. Compensation
As compensation for all consulting services rendered by the Consultant
during the Engagement Period pursuant to this Agreement, the Corporation shall
grant to the Consultant an option (the "Option") to purchase up to 1,500,000
shares of the common stock of the Corporation, $.001 par value per share, at
par.
4. Secrets
Consultant agrees that any trade secrets or any other like information of
value relating to the business and/or field of interest of the Corporation or
any of its affiliates, or of any corporation or other legal entity in which the
Corporation or any of its affiliates has an ownership interest of more than
twenty-five per cent (25%), including but not limited to, information relating
to inventions, disclosures, processes, systems, methods, formulae, patents,
patent applications, machinery, materials, research activities and plans, costs
of production, contract forms, prices, volume of sales, promotional methods,
list of names or classes of customers, which he has heretofore acquired during
his engagement by the Corporation or any of its affiliates or which he may
hereafter acquire during the Engagement Period and the three-year period
beginning after termination of the Engagement Period as the result of any
disclosures to him, or in any other way, shall be regarded as held by the
Consultant and his personnel, if any, in a fiduciary capacity solely for the
benefit of the Corporation, its successors or assigns, and shall not at any
time, either during the term of this Agreement or thereafter, be disclosed,
divulged, furnished, or made accessible by the Consultant and his personnel, if
any, to anyone, or be otherwise used by them, except in the regular course of
business of the Corporation or its affiliates. Information shall for the
purposes of this Agreement be considered to be secret if not known by the trade
generally, even though such information may have been disclosed to one or more
third parties pursuant to distribution agreements, joint venture agreements and
other agreements entered into by the Corporation or any of its affiliates.
5. Assignment
This Agreement may be assigned by the Corporation as part of the sale of
substantially all of its business; provided, however, that the purchaser shall
expressly assume all obligations of the Corporation under this Agreement.
Further, this Agreement may be assigned by the Corporation to an affiliate,
provided that any such affiliate shall expressly assume all obligations of the
Corporation under this Agreement, and provided further that the Corporation
shall then fully guarantee the performance of the Agreement by such affiliate.
Consultant agrees that if this
<PAGE>
Agreement is so assigned, all the terms and conditions of this Agreement shall
obtain between such assignee and himself with the same force and effect as if
said Agreement had been made with such assignee in the first instance. This
Agreement is personal to the Consultant and shall not be assigned without
written consent of the Corporation.
7. Entire Understanding
This Consulting Agreement contains the entire understanding between the
parties and supersedes all prior and collateral communications, reports,
agreements, and understandings between the parties. No change, modification,
alteration, or addition to any provision hereof shall be binding unless in
writing and signed by authorized representatives of both parties. This
Consulting Agreement shall apply in lieu of and notwithstanding any specific
statement associated with any particular information or data exchanged, and the
duties of the parties shall be determined exclusively by the aforementioned
terms and conditions.
8. Survival of Certain Agreements
The covenants and agreements set forth in Articles 4 hereof shall survive
the expiration of the Engagement Period and shall survive termination of this
Agreement and remain in full force and effect.
9. Notices
9.1 All notices required or permitted to be given hereunder shall be
delivered by hand, certified mail, or recognized overnight courier, in all cases
with written proof of receipt required, addressed to the parties as set forth
below and shall be deemed given upon receipt as evidenced by written and dated
receipt of the receiving party.
9.2 Any notice to the Corporation or to any assignee of the Corporation
shall be addressed as follows:
The Tirex Corporation
740 St. Maurice, Suite 201
Montreal, Quebec
Canada H3C 1L5
9.3 Any notice to Consultant shall be addressed as follows:
Mr. Alan Epstein
10565 Santa Laguna Drive
Boca Raton, FL 33428
<PAGE>
9.4 Either party may change the address to which notice to it is to be
addressed, by notice as provided herein.
10. Applicable Law
This Agreement shall be interpreted and enforced in accordance with the
laws of the State of Delaware.
11. Interpretation
Whenever possible, each Article of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
Article is unenforceable or invalid under such law, such Article shall be
ineffective only to the extent of such unenforceability or invalidity, and the
remainder of such Article and the balance of this Agreement shall in such event
continue to be binding and in full force and effect.
11. Prior Agreements
This Agreement supersedes and cancels any and all prior agreements,
whether written or oral, between the parties.
In Witness Whereof, the parties hereto have executed the above Agreement
as of the day and year first above written.
THE TIREX CORPORATION
By /s/ Terence C. Byrne
---------------------------
Terence C. Byrne, President
By /s/ Alan Epstein
---------------------------
Alan Epstein, Consultant
EXHIBIT 4.2
OPTION TO PURCHASE COMMON STOCK
<PAGE>
NEITHER THIS OPTION NOR THE UNDERLYING COMMON SHARES HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE CORPORATION WILL NOT TRANSFER THIS OPTION OR THE
UNDERLYING COMMON SHARES UNLESS THERE IS AN EFFECTIVE REGISTRATION COVERING SUCH
OPTION OR SUCH SHARES, AS THE CASE MAY BE, UNDER THE SECURITIES ACT OF 1933 AND
APPLICABLE STATES SECURITIES LAWS
This Option is granted April 13, 1998
and is void after 5:00 pm, New York Time on April 12, 1999.
OPTION
TO PURCHASE COMMON SHARES
OF
THE TIREX CORPORATION
THIS IS TO CERTIFY THAT, FOR VALUE RECEIVED, Alan Epstein (the "Optionee")
is entitled to purchase, subject to the provisions of this Option and a certain
consulting agreement, dated April 13, 1998 (the "Consulting Agreement") between
the Optionee and The Tirex Corporation, a Delaware corporation (the
"Corporation"), at a price of $.001 per share, up to one million five hundred
thousand (1,500,000) shares of the common stock of the Corporation (the
"Optioned Shares") at any time during the period commencing six months from the
date hereof and terminating at 5:00 p.m., New York Time, on April 12, 1999. This
Option is granted pursuant to, and subject to all of the terms and conditions of
the above referenced Consulting Agreement.
1. Exercise of Option.
Subject to the provisions hereof and of the Consulting Agreement, Optionee
may purchase the Optioned Shares, in whole or in part, during the twelve month
period commencing April 13, 1998 and terminating at 5:00 p.m., New York Time, on
April 12, 1999. Exercise shall be effected by presentation and surrender of this
Option (or any option for which this Option has been exchanged) to the
Corporation at its principal office with the purchase form annexed hereto, duly
executed and accompanied by payment of the Exercise Price for the number of
shares specified in such form. Upon receipt by the Corporation of this Option in
proper form for exercise, the Optionee shall be deemed to be the holder of
record of the Optioned Shares issuable upon such exercise, notwithstanding that
the stock transfer books of the Corporation shall then be closed or that
certificates representing such Optioned Shares shall not then be actually
delivered to the Optionee.
<PAGE>
2. Reservation and Status of Shares.
The Corporation hereby agrees that at all times there shall be reserved
for issuance and delivery upon exercise of this Option such number of its common
shares as shall be required for issuance and delivery upon exercise of this
Option, and that such shares, when issued in accordance with the terms of this
Option, shall be validly issued, fully paid, and non-assessable.
3. Fractional Shares.
Fractional Shares will not be issued upon the exercise of this Option.
4. Assignment, Exchange, or Loss of Option.
4.1 This Option is not assignable.
4.2 This Option is exchangeable, without expense, at the option of the
Optionee, upon presentation and surrender hereof to the Corporation at its
principal office, or at the office of its stock transfer agent, if any, for
other Options of different denominations entitling the Optionee to purchase, in
the aggregate, the same number of Shares purchasable hereunder.
4.3 Upon receipt by the Corporation of evidence satisfactory to it of the
loss, theft, destruction, or mutilation of this Option, and (in the case of
loss, theft, or destruction) of reasonably satisfactory indemnification, and (in
the case of mutilation) upon surrender and cancellation of this Option, the
Corporation will execute and deliver a new Option, which shall not constitute an
additional contractual obligation on the part of the Corporation, should this
Option so lost, stolen, destroyed, or mutilated be at any time enforceable by
anyone.
5. Rights of the Optionee.
Except as provided in the last sentence of Section 1, the Optionee shall
not, by virtue hereof, be entitled to any rights of a shareholder in the
Corporation, either at law or equity. The rights of the Optionee are limited to
those expressed in this Option and are not enforceable against the Corporation
except to the extent set forth herein.
6. Anti-Dilution Provisions.
The number and kind of securities purchasable upon the exercise of this
Option and the Exercise Price shall be subject to adjustment from time to time
as follows:
<PAGE>
6.1 In the event that the Corporation shall (i) pay a dividend or make a
distribution on the outstanding Common Shares payable in Common Shares, (ii)
subdivide the outstanding Common Shares into a greater number of shares, (iii)
combine the outstanding Common Shares into a lesser number of shares, or (iv)
issue by reclassification of the Common Shares any Common Shares of the
Corporation, the Optionee of this Option shall thereafter be entitled, upon
exercise, to receive the number and kind of shares which, if this Option had
been exercised immediately prior to the happening of such event, the Optionee
would have owned upon such exercise and been entitled to receive upon such
dividend, distribution, subdivision, combination, or reclassification. Such
adjustment shall become effective on the day next following (x) the record date
of such dividend or distribution or (y) the day upon which such subdivision,
combination, or reclassification shall become effective.
6.2 In the event that the Corporation shall consolidate or merge into or
with another corporation, or in the event that the Corporation shall sell or
convey to any other person or persons all or substantially all the property of
the Corporation, the Optionee of this Option shall thereafter be entitled, upon
exercise, to receive the kind and amount of shares, other securities, cash, and
property receivable upon such consolidation, merger, sale, or conveyance by a
holder of the number of Common Shares which might have been purchased upon
exercise of this Option immediately prior to such consolidation, merger, sale,
or conveyance, and shall have no other conversion rights. In any such event,
effective provision shall be made, in the certificate or articles of
incorporation of the resulting or surviving corporation, in any contracts of
sale and conveyance, or otherwise so that, so far as appropriate and as nearly
as reasonably may be, the provisions set forth herein for the protection of the
rights of the Optionee of this Option shall thereafter be made applicable.
6.3 Whenever the number of shares purchasable upon exercise of this Option
is adjusted pursuant to this Section 6, the Exercise Price per share shall be
adjusted simultaneously by multiplying that Exercise Price per share in effect
immediately prior to such adjustment by a fraction, of which the numerator shall
be the number of shares purchasable upon exercise of this Option immediately
prior to such adjustment, and of which the denominator shall be the number of
shares so purchasable immediately after such adjustment, so that the aggregate
exercise price of this Option remains the same.
6.4 No adjustment in the number of Common Shares which may be purchased
upon exercise of this Option shall be required unless such adjustment would
require an increase or decrease of more than ten percent (10%) in the number of
shares of the Common Shares which may be so purchased, provided, however, that
any adjustment which by reason of this Section 6.4 is not required to be made
shall be carried forward cumulatively and taken into account in any subsequent
calculation. All calculations under this Section 6 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
6.5 In the event that at any time, as a result of an adjustment made
pursuant to this Section 6, the Optionee shall become entitled to receive upon
exercise of this Option cash, property, or securities other than Shares, then
references to Shares in this Section 6 shall be
<PAGE>
deemed to apply, so far as appropriate and as nearly as may be, to such cash,
property, or other securities.
6.6 Irrespective of any adjustments in the Exercise Price or in the number
or kind of Shares purchasable upon exercise of this Option, the form of Options
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in this Option.
9. Registration of Optioned Shares
At such time as the Optionee shall be entitled to exercise this Option
under the terms hereof and of the Consulting Agreement, The Corporation will,
upon the request of the Optionee, register up to one million of the Optioned
Shares issuable upon the exercise of this Option or any one or more options for
which this Option may be exchanged, pursuant to a registration statement on Form
S-8, filed with the Securities and Exchange Commission.
10. Notices to Optionee.
So long as this Option shall be outstanding, if the Corporation shall
propose to take any action that would cause an adjustment or exchange to be made
pursuant to Sections 6 or 7, the Corporation shall mail by certified mail to the
Optionee, before, or no later than 15 days after, the day on which such
adjustment would become effective, a notice setting forth in reasonable detail
the action so taken.
11. Notice.
9.1 All notices required or permitted to be given hereunder shall be
delivered by hand, certified mail, or recognized overnight courier, in all cases
with written proof of receipt required, addressed to the parties as set forth
below and shall be deemed given upon receipt as evidenced by written and dated
receipt of the receiving party. Any notice to the Optionee shall be addressed as
follows:
Alan Epstein
10565 Santa Laguna Drive
Boca Raton, FL 33428
and if to the Corporation:
The Tirex Corporation
740 St. Maurice, Suite 201
Montreal, Quebec
Canada H4R 1W4
<PAGE>
or such other addresses as a party shall so notify the other party in writing.
Any notice or other communication given by certified mail shall be deemed given
at the time of certification thereof, except for a notice changing a party's
address which shall be deemed given at the time of receipt thereof.
12. General
12.1 Any masculine personal pronoun shall be considered to mean the
corresponding feminine or neuter personal pronoun, as the context requires.
12.2 This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
12.3 All section titles or captions contained in this Agreement are for
convenience only and shall not be deemed part of the context nor effect the
interpretation of this Agreement.
12.4 In computing any period of time pursuant to this Agreement, the day
of the act, event or default from which the designated period of time begins to
run shall be included, unless it is a Saturday, Sunday, or a legal holiday, in
which event the period shall begin to run on the next day which is not a
Saturday, Sunday, or legal holiday, in which event the period shall run until
the end of the next day thereafter which is not a Saturday, Sunday, or legal
holiday.
12.5 This Agreement or any section thereof shall not be construed against
any party due to the fact that said Agreement or any section thereof was drafted
by said party.
12.6 The parties hereto shall execute and deliver all documents, provide
all information and take or forbear from all such action as may be necessary or
appropriate to achieve the purposes of the Agreement.
12.7 Nothing herein shall be construed to be to the benefit of any third
party, nor is it intended that any provision shall be for the benefit of any
third party.
12.8 The provisions of this Option shall be binding upon and inure to the
benefit of (A) the parties hereto, (B) the successors and assigns of the
Corporation, (C) if the Optionee is a corporation, partnership, or other
business entity, the successors and assignee of the Optionee, and (D) if the
Optionee is a natural person, the assignees, heirs; and personal representative
of the Optionee.
THE TIREX CORPORATION
By /s/ Terence C. Byrne
---------------------------
Terence C. Byrne, President
EXHIBIT 5.1
OPINION OF
CORPORATE COUNSEL
<PAGE>
The Tirex Corporation
Office of Corporate Counsel
- --------------------------------------------------------------------------------
Frances Katz Levine, Esq. Telephone (718) 981-8485
621 Clove Road Telefax (718) 447-1153
Staten Island, NY 10310
Member, New York and
New Jersey Bars
April 13, 1998
The Tirex Corporation
740 St. Maurice, Suite 201
Montreal, Quebec
Canada, H3C 1L5
Ladies and Gentlemen:
You have requested my opinion as counsel for Tirex America Inc., a
Delaware corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended, and the Rules and Regulations
promulgated thereunder, and the public offering by the selling shareholders (the
"Selling Shareholders") named in the Company's Registration Statement on Form
S-8, to be filed with the Securities and Exchange Commission on or about March
18, 1998 (the "Registration Statement"), of four hundred seventy-five thousand,
three hundred and three (475,303) shares of Common Stock of the Company, $.001
par value, per share, currently issued and outstanding in the names of the
Selling Shareholders (the "Shares").
I have examined the Registration Statement in the form to be filed with
the Securities and Exchange Commission, the Certificate of Incorporation of the
Company as certified by the Secretary of State of the State of Delaware, the
Bylaws and the minute books of the Company as a basis for the opinion hereafter
expressed.
Based on the foregoing examination, it is my opinion, and I so advise,
that the 475,303 Shares currently are, and upon sale in the manner described in
the Registrant Statement will be, legally issued, fully paid and nonassessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Frances Katz Levine
EXHIBIT 24.1
CONSENT OF NEVOSO, PIVIROTTO, PINKHAM & FOSTER
Certified Public Accountants, LLC
<PAGE>
Nevoso, Pivirotto, Pinkham & Foster
CERTIFIED PUBLIC ACCOUNTANTS, LLC
Report of Independent Auditors
We consent to the incorporation by reference in this Registration
Statement of Tirex America Inc. on Form S-8 of our report dated October 9, 1997,
appearing in the incorporated by reference from the Annual Report on Form 10-KSB
of The Tirex Corporation for the year ended June 30, 1997.
Nevoso, Pivirotto, Pinkham & Foster
Certified Public Accountants, LLC
April 13, 1998
Fairfield, New Jersey
