As filed with the Securities and Exchange Commission on December 21, 1999
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.)
3828 St. Patrick
Montreal, Quebec H4E 1A4
(Address of Principal Executive Offices) (Zip Code)
RETAINER AGREEMENT BETWEEN THE REGISTRANT AND
LEVINE AND RAPFOGEL
(Full title of the Plan)
Frances Katz Levine
621 Clove Road
Staten Island, NY 10310
(Name and address, including zip code of agent for service)
(718) 981-8485
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================
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,
Pursuant to The Exercise
of Options Granted Under
Retainer Agreement with:
Scott Rapfogel 256,557 $.085 $21,807 $ 6.61
Frances Katz Levine 425,845 $.085 $36,197 $10.97
TOTAL $100
==================================================================================================
</TABLE>
* Estimated solely for the purpose of calculating the amount of the registration
fee pursuant to Rule 457(g) 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 December 13, 1999.
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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, 1999, 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, 1998, December 31, 1998, March 31, 1999, and
September 30, 1999 filed pursuant to Section 15(d) of the Exchange Act,
and Registrant's Current Reports on Form 8-K, dated May 27, 1998 (filed
with the Commission on August 3, 1998), September 14, 1998 (filed with
the Commission on September 18, 1998), March 17, 1999 (filed with the
Commission on March 23, 1999), May 4, 1999 (filed with the Commission
on May 18, 1999), May 10, 1999 (filed with the Commission on May 24,
1999), and September 3, 1999 (filed with the Commission on September 3,
1999).
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
registers 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 one hundred
twenty million shares (120,000,000), par value $.001 per share, all of which are
designated Common Stock par value $.001 per share. As at December 13, 1999 there
were one hundred eighteen million, four hundred eighty one thousand, five
hundred twenty eight (118,481,528) shares of Common Stock issued and
outstanding.
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
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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 preemptive, 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.
The law firm of Levine and Rapfogel is acting as special counsel to the
Registrant for purposes of the preparation and filing of this Registration
Statement. Frances Katz Levine and Scott Rapfogel, shareholders of the
Registrant, are principals of Levine and Rapfogel. As at December 13, 1999 Ms.
Levine (together with her husband, Robert Levine), and Scott Rapfogel were the
respective record and beneficial owners of approximately 6.1% and 1.9% of the
Registrant's issued and outstanding common stock. In addition, Ms. Levine and
Mr. Rapfogel, respectively, own options to purchase 425,845 and 256,557 shares
of the Registrant's common stock at an exercise price of $.001 per share.
Item 6. Indemnification of Directors and Officers.
The Company's certificate of incorporation provides for indemnification
to the fullest extent permitted by Section 145 of the Delaware General
Corporation Law ("Section 145"). Pursuant thereto, the Company indemnifies its
officers, directors, employees and agents to the fullest extent permitted for
losses and expenses incurred by them in connection with actions in which they
are involved by reason of their having been directors, officers, employees, or
agents of the Company. Section 145 permits a corporation to indemnify any person
who is or has been a director, officer, employee, or agent of the corporation or
who is or has been serving as a director, officer, employee or agent of another
corporation, organization, or enterprise at the request of the corporation,
against all liability and expenses (including but not limited to attorneys' fees
and disbursements and amounts paid in settlement or in satisfaction of judgments
or as fines or penalties) incurred or paid in connection with any action, suit
or proceeding, whether civil, criminal, administrative, investigative, or
otherwise, in which he or she may be
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involved by reason of the fact that he or she served or is serving in these
capacities, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no cause
o believe his or her conduct was unlawful. In the case of a claim, action, suit
or proceeding made or brought by or in the right of the corporation to procure a
recovery or judgment in its favor, the corporation shall not indemnify such
person in respect of any claim issue or matter as to which such person has been
adjudged to be liable to the corporation for negligence or misconduct int he
performance of his or her duty to the corporation, except for such expenses as
the Court may allow. Any such person who has been wholly successful on the
merits or otherwise with respect to any such claim, action, suit or proceeding
or with respect to any claim, issue or matter therein, shall be indemnified as
of right against all expenses in connection therewith or resulting therefrom.
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 Company's By-laws provide for indemnification of the Company's
officers and directors against all liabilities (including reasonable costs,
expenses, attorney's fees, obligations for payment in settlement and final
judgment) incurred by or imposed upon them in the preparation, conduct or
compromise of any actual or threatened action, suit, or proceeding, whether
civil, criminal, or administrative, including any appeals therefrom and any
collateral proceedings in which they shall be involved by reason of any action
or omission by them in their capacity as a director or officer of the Company,
or of any other corporation which they serve as a director or officer at the
request of the Company, whether or not such person is a director or officer at
the time such liabilities are incurred or any such action, suit, or proceeding
is commenced against them. The indemnification provided by the By-laws does not
extend, however, to certain situations involving misconduct, willful
misfeasance, bad faith, or gross negligence.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Company pursuant to the foregoing provisions, the Company has been informed
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 registrant of expenses incurred 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, 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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Except to the extent hereinabove set forth, there is no charter
provision, by-law, contract, arrangement or statute pursuant to which any
director or officer of registrant is indemnified in any manner against any
liability which he may incur in his capacity as such.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The exhibits filed as a part of this Report or incorporated herein by
reference are as follows:
Exhibit No. Item
- ----------- ----
4.1 Retainer Agreement, dated September 21, 1999, between Registrant
and Levine & Rapfogel
5.1 Opinion of Frances Katz Levine, Esq., regarding the legality
of the securities being registered under this Registration
Statement.
24.1 Consent of Pinkham & Pinkham, P.C., Certified Public Accountants
Independent Auditor for the Registrant.
24.2 Consent of Frances Katz Levine, Esq., (set forth in the opinion
of counsel included as Exhibit 5.1).
- ---------------------------
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
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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.
(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.
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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 21st day
of December 1999.
THE TIREX CORPORATION
By /s/ Terence C. Byrne
------------------------------
Terence C. Byrne, Chairman of the Board of
Directors and Chief Executive Officer
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 Chairman of the Board December 21, 1999
- ------------------------------- of Directors and Chief
Terence C. Byrne Executive Officer
/s/ Michael Ash Treasurer and Chief December 21, 1999
- ------------------------------- Financial and Accounting
Michael Ash Officer
Majority of the Board of Directors
/s/ Terence C. Byrne Director December 21, 1999
- ------------------------------
Terence C. Byrne
/s/ Louis V. Muro Director December 21, 1999
- ------------------------------
Louis V. Muro
/s/ Louis Sanzaro Director December 21, 1999
- ------------------------------
Louis Sanzaro
/s/ Henry Meier Director December 21, 1999
- -------------------------------
Henry Meier
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EXHIBIT INDEX
Exhibit No. Item Page
- ----------- ---- ----
4.1 Retainer Agreement, dated September 21, 1999, 9
between Registrant and Levine & Rapfogel
5.1 Opinion of Frances Katz Levine, Esq. 12
regarding the legality of the securities
being registered under this Registration
Statement
24.1 Consent of Pinkham & Pinkham, P.C., 14
Certified Public Accountants
Independent Auditors for the Registrant
24.2 Consent of Frances Katz Levine,
Esq., the counsel for the Registrant
(set forth in the opinion of counsel
included as Exhibit 5.1)
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EXHIBIT
4.1
RETAINER AGREEMENT
9
<PAGE>
LEVINE & RAPFOGEL
Attorneys at Law
621 CLOVE ROAD
STATEN ISLAND, NY 10310
Member, New York and Telephone (718) 981-8485
New Jersey Bars Telefax (718) 447-1153
September 21, 1999
The Tirex Corporation
3828 St. Patrick
Montreal, PQ
Canada J4E 1A4
Attn: Terence C. Byrne,
Chief Executive Officer
Re: Retainer Agreement
Dear Sir:
This letter will serve to confirm our engagement as special counsel to
The Tirex Corporation (the "Company") with respect to certain matters which you
have asked us to handle during and as part of the management and structural
transition which the Company is currently undergoing. This letter will also
confirm your agreement that work done by us in this capacity since July 1, 1999
to date will be subject to compensation under the terms of this retainer
agreement.
You have requested us, and we have agreed, to provide you with legal
services relating to the organization, maintenance, and transfer to new
corporate counsel of the books and records of the Company to the extent that
they were within our purview and possession, to assist the Company's new
corporate counsel, when historical or other clarification is required with
respect to various corporate, SEC disclosure, and other legal matters, and to
perform various other legal services, as we shall mutually agree. Our services
will consist of: (a) rendering advice to the Company and to its corporate
counsel; (b) the review of the Company's past and prospective activities and the
files and records relating thereto; and (c) drafting documents including those
required for the issuance, Form S-8 registration, and transfer of stock issued
to us by way of compensation hereunder; and such other services as may be
appropriate with respect to the scope of our legal representation. You will
cooperate with us in these regards and we will be provided by you with such true
and accurate information and documentation relating to the matters handled by us
as we shall reasonably require and will be advised and informed from time to
time by you as to all relevant developments and changes concerning, the progress
of the Company's corporate, business and legal affairs. We shall report to
Terence C. Byrne, your Chief Executive Officer from time to time as he shall
require.
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It is mutually understood that this engagement applies solely to the
above described legal services and not to any legal services relating to other
matters including without limitation: (a) litigation, arbitration or
administrative or other proceedings; (b) other unrelated business or corporate
activities; (c) the preparation of press releases or other public relations
materials; (d) unusual or extraordinary matters which may arise out of the
Company's business activities; or (e) the preparation of SEC disclosure
documents and related matters, including, but not limited to the preparation of:
(i) private placement memoranda, (ii) registration statements (other than Form
S-8 registrations of stock issued to us by way of compensation hereunder), or
(iii) annual, quarterly, or current reports.
We have further agreed that our compensation for the services described
above will be at the rate of $225 per hour, together with the amount of all
expenses incurred in connection with such legal services, payable in monthly
cycles, promptly when billed. In lieu of cash, payment will be made to us by way
of the issuance of options ("Options") to purchase shares of the common stock of
the Company at a price equal to fifty percent (50%) of the average of the high
ask and low bid prices of such stock, as traded in the over-the-counter market
and quoted in the OTC Electronic Bulletin Board, during the period when such
fees were earned and such expenses were incurred. The exercise price of the
Options will be paid by way of satisfaction of the legal fees and expenses
billed to the Company. You have further agreed that all shares subject to such
options shall be registered by the Company under registration statements on
Forms S-8 prior to the exercise of the Options and that we shall have the right
to prepare and file such Form S-8 registration statements on behalf of the
Company, with all work done by us in connection therewith to be at our expense,
and with the Company responsible only for the SEC filing fees and any fees paid
to third parties for EDGAR electronic filing services.
Any services rendered by us to you beyond the terms of our engagement
will be done only pursuant to, and compensated at rates established by mutual
agreements between us. We reserve the right to withdraw from this engagement
failing your cooperating with us as provided above or failing your payment of
our billings in a timely manner. Should we so withdraw, we shall be entitled to
be compensated by you for our services rendered, calculated at the foregoing
rate.
Yours very truly,
LEVINE AND RAPFOGEL
By/s/ Frances Katz Levine
-------------------------
Frances Katz Levine
ACCEPTED AND AGREED:
THE TIREX CORPORATION
By /s/ Terence C. Byrne
---------------------
Terence C. Byrne, Chief Executive Officer
11
EXHIBIT
5.1
OPINION OF
FRANCES KATZ LEVINE, ESQ.
12
<PAGE>
LEVINE AND RAPFOGEL
ATTORNEYS AT LAW
621 CLOVE ROAD
STATEN ISLAND, NEW YORK 10310
Telephone Telefax
(718) 981-8485 (718) 447-1153
December 21, 1999
The Tirex Corporation
3828 St. Patrick
Montreal, PQ
Canada H4E 1A4
Ladies and Gentlemen:
You have requested my opinion as special counsel for The Tirex
Corporation 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 Company of an
aggregate of up to six hundred eighty two thousand, four hundred two (682,402)
shares of Common Stock of the Company (the "Shares"), $.001 par value, per
share, issuable upon the exercise of options granted pursuant to the retainer
agreement (the "Retainer Agreement") dated September 21, 1999 between the
Company and Levine & Rapfogel.
I have examined the Company's Registration Statement on Form S-8 in the
form to be filed with the Securities and Exchange Commission on or about
December 21, 1999 (the "Registration Statement"), the Retainer Agreement, 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 upon issuance and sale in the manner described in the Registration
Statement and the exhibits thereto, the Shares 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
------------------------
Frances Katz Levine
13
EXHIBIT
24.1
CONSENT OF PINKHAM & PINKHAM, P.C.
Certified Public Accountants
14
<PAGE>
Pinkham & Pinkham, P.C.
CERTIFIED PUBLIC ACCOUNTANTS
Report of Independent Auditors
We consent to the incorporation by reference in this Registration Statement of
The Tirex Corporation on Form S-8 of our report dated September 28, 1999
appearing in the incorporated by reference Annual Report on Form 10-KSB of The
Tirex Corporation for the year ended June 30, 1999.
/s/ Pinkham & Pinkham, P.C.
-----------------------------
Pinkham & Pinkham, P.C.
Certified Public Accountants
December 9, 1999
Cranford, New Jersey
514 Centennial Avenue, Cranford, N.J. 07016 Tel.: 908-653-1710 Fax: 908-65301713
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