-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, H4B8ynMi7rtdWMZdJ1ukxZunpVpCwDzo7j+LHTC6H8thOFbGpCn+KKI0R8KFDXsc ATwEgkiYYvFUiGTmRWrSYQ== 0000950117-03-004007.txt : 20030909 0000950117-03-004007.hdr.sgml : 20030909 20030908210016 ACCESSION NUMBER: 0000950117-03-004007 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20030909 EFFECTIVENESS DATE: 20030909 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EQUIDYNE CORP CENTRAL INDEX KEY: 0000352281 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 042608713 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-108624 FILM NUMBER: 03887005 BUSINESS ADDRESS: STREET 1: 11300 SORRENTO VALLEY ROAD #255 CITY: SAN DIEGO STATE: CA ZIP: 92121 BUSINESS PHONE: 858-587-7777 MAIL ADDRESS: STREET 1: 11300 SORRENTO VALLEY RD #255 STREET 2: . CITY: SAN DIEGO STATE: CA ZIP: 92121 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN ELECTROMEDICS CORP DATE OF NAME CHANGE: 19920703 S-8 1 a36139.txt EQUIDYNE CORPORATION As Filed With the Securities and Exchange Commission on September 8, 2003 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 EQUIDYNE CORPORATION (Exact Name of Registrant as Specified in Its Charter) Delaware 04-2608713 (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization)
11300 Sorrento Valley Road, Suite 255, San Diego, CA 92121 (Address of Principal Executive Offices) (Zip Code) 1996 Stock Option Plan 2002 Long Term Incentive and Share Award Plan Shares Issuable to Marcus R. Rowan Upon Exercise of Outstanding Stock Options Granted Pursuant to an Employment Agreement Shares Issuable to Mark C. Myers Upon Exercise of Outstanding Stock Options Granted Pursuant to an Employment Agreement (Full Title of the Plans) Please address a copy of all correspondence to: Jeffery B. Weinress William F. Schwitter, Esq, Chief Financial Officer Paul, Hastings, Janofsky & Walker LLP 11300 Sorrento Valley Road, Suite 255 75 E. 55th Street San Diego, California 92121 New York, NY 10022 (Name and Address of Agent for Service) Telephone: (212) 318-6000
(858) 587-7777 (Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE ====================================================================================================================== Proposed maximum Proposed maximum Title of securities to Amount to be offering price per aggregate offering Amount of be registered registered share price registration fee - ---------------------------------------------------------------------------------------------------------------------- Common Stock, Par Value $.10 800,000 shares(1) $0.56(5) $448,000.00 $36.24 - ---------------------------------------------------------------------------------------------------------------------- Common Stock, Par Value $.10 1,000,000 shares(2) $0.56(5) $560,000.00 $45.30 - ---------------------------------------------------------------------------------------------------------------------- Common Stock, Par Value $.10 660,000 shares(3) $0.86(6) $567,600.00 $45.92 - ---------------------------------------------------------------------------------------------------------------------- Common Stock, Par Value $.10 210,000 shares(4) $0.90(7) $189,000.00 $15.29 - ---------------------------------------------------------------------------------------------------------------------- Total 2,670,000 shares $142.75 - ----------------------------------------------------------------------------------------------------------------------
(1) On March 21, 1997 and June 15, 2000, Equidyne Corporation (formerly American Electromedics Corp.) (the "Company") registered 300,000 shares and 400,000 shares, respectively, under its 1996 Stock Option Plan (the "Stock Option Plan") on Form S-8 filed with the Securities and Exchange Commission (the "Commission"), File Nos. 333-23741 and 333-39354. On January 11, 2001, the Company amended the Stock Option Plan by increasing the number of shares reserved under the Stock Option Plan from 700,000 shares to 1,500,000 shares. Pursuant to this Registration Statement, the Registrant is registering the additional 800,000 shares reserved under the Stock Option Plan plus such indeterminate amount of additional shares as may become issuable pursuant to the anti-dilution provisions contained in the Stock Option Plan. (2) Includes 1,000,000 shares reserved for issuance pursuant to options granted under the 2002 Long Term Incentive and Share Award Plan plus such indeterminate amount of additional shares as may become issuable pursuant to the anti-dilution provisions contained in the 2002 Long Term Incentive and Share Award Plan. (3) Represents 660,000 shares issuable upon the exercise of options granted to Marcus R. Rowan by a stock option agreement issued pursuant to an employment agreement between the Company and Marcus R. Rowan (the "Rowan Employment Agreement") plus such indeterminate amount of additional shares as may become issuable pursuant to the anti-dilution provisions contained therein. (4) Represents 210,000 shares issuable upon the exercise of options granted to Mark C. Myers by a stock option agreement issued pursuant to an employment agreement between the Company and Mark C. Myers (the "Myers Employment Agreement") plus such indeterminate amount of additional shares as may become issuable pursuant to the anti-dilution provisions contained therein. (5) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) of the Securities Act, on the basis of the average of the high and low prices of the Company's Common Stock as reported by the American Stock Exchange on September 5, 2003. (6) Calculated in accordance with Rule 457(h) as this amount represents the exercise price of the options granted pursuant to the Rowan Employment Agreement. (7) Calculated in accordance with Rule 457(h) as this amount represents the exercise price of the options granted pursuant to the Myers Employment Agreement. 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Equidyne has prepared this Registration Statement in accordance with the requirements of Form S-8 under the Securities Act to register shares of its common stock, par value $0.10 per share (the "Common Stock") issuable to officers, directors and other employees of the Company upon the exercise of stock options granted pursuant to the terms of the Company's 1996 Stock Option Plan (the "Stock Option Plan"), the Company's 2002 Long Term Incentive and Share Award Plan (the "LTIP"), the Employment Agreement (the "Rowan Employment Agreement"), dated as of December 26, 2001, as amended, between the Company and Marcus R. Rowan, and the Employment Agreement (the "Myers Employment Agreement"), dated as of December 31, 2001, as amended, between the Company and Mark C. Myers. The documents relating to the Stock Option Plan, the LTIP, the Rowan Employment Agreement and the Myers Employment Agreement previously have been, or will be, sent or given to the participants thereunder and are not required to be and are not filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933, as amended (the "Securities Act"). 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents and information previously filed by Registrant with the Commission are hereby incorporated by reference in this Registration Statement: (a) The Company's Annual Report on Form 10-KSB/A for the fiscal year ended July 31, 2003 (Commission File No. 0-9922); (b) The Company's Current Report on Form 8-K filed with the Commission on August 28, 2003 (Commission File No. 0-9922); and (c) The description of the Company's Common Stock contained in the section entitled "Description of Securities--Common Stock" in the Company's Registration Statement on Form SB-2 filed with the Commission on September 6, 2000 (Commission File No. 333-45268). All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that 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 respective dates of the filing of those documents. Any statement contained herein or in a document incorporated, or deemed incorporated, by reference herein or therein shall be deemed to be modified or superseded for purposes of the Registration Statement to the extent that a statement contained herein or therein or in any other subsequently filed document which also is deemed to be incorporated by reference herein or therein modifies or supersedes such statement. Any such statement shall not be deemed to constitute a part of this Registration Statement or the Prospectus except as so modified or replaced. ITEM 4. DESCRIPTION OF SECURITIES Not Applicable. ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSEL Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Article 13 of the Company's certificate of incorporation provides that to the full extent that the DGCL, as it now exists or may hereafter be amended, permits the limitation or elimination of the liability of directors, a director of the Company shall not be liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director. Any amendment to or repeal of such Article 13 shall not adversely affect any right or protection of a director of the Company for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. Article X, Section I of the Company's by-laws requires indemnification of directors and officers to the full extent permitted under Delaware law as from time to time in effect. Subject to any restrictions imposed by Delaware law, the Company's by-laws provide a right to indemnification for all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) actually and reasonably incurred or suffered by any person in connection with any actual or threatened proceeding by reason of the fact that such person is or was serving as a director or officer of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan. The Company's by-laws also provide that it may, by action of its board of directors, provide indemnification to its employees or agents with the same scope and effect as the foregoing indemnification of directors and officers. Section 145 of the Delaware General Corporation Law (the "DGCL") provides that a Delaware corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than action by or in the right of the corporation - a "derivative action"), if they acted in good faith and in a manner they 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 reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of such action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation's charter, by-laws, disinterested director vote, stockholder vote, agreement, or otherwise. Section 102(b)(7) of the DGCL permits a Delaware corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for (i) any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) payments of unlawful dividends or unlawful stock purchases or redemptions, or (iv) any transaction from which the director derived an improper personal benefit. A corporation also may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation. However, in such an action by or on behalf of a corporation, no indemnification may be made in respect of any claim, issue or matter as to which the person is adjudged liable to the corporation unless and only to the extent that the court determines that, despite the adjudication of liability but in view of all the circumstances, the person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. In addition, the indemnification and advancement of expenses provided by or granted pursuant to Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. The Company maintains directors' and officers' liability insurance which provides for payment, on behalf of the directors and officers of the Company and its subsidiaries, of certain losses of such persons (other than matters uninsurable under law) arising from claims, including claims arising under the 2 Securities Act, for acts or omissions by such persons while acting as directors or officers of the Company and/or its subsidiaries, as the case may be. The employment agreements the Company enters into with its employees from time to time provide that in the event the Company's employees are made, or are threatened to be made, a party to any legal action or proceeding due to their position as a director or officer of the Company or serve or served as an affiliate of the Company at the request of the Company, they will be entitled, at all times (including after termination of their respective employment agreements), to the benefit of the maximum indemnification and advancement of expenses available from time to time under the Company's certificate of incorporation and by-laws. Additionally, the Company has entered into indemnification agreements with each of the officers and directors of the Company. The indemnification agreements are intended to provide the indemnitees with the maximum possible protection authorized or permitted by the applicable provisions of the DGCL. Pursuant to such agreements the Company covenants to obtain and maintain directors' and officers' liability insurance for so long as the indemnitees serve as officers or directors of the Company and to name each of the indemnities as an insured. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable ITEM 8. EXHIBITS.
Exhibit No. Description - ------ ----------- 3.1.1 Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on April 15, 1981 (Incorporated by reference to Exhibit 3(a)(1) to Registration Statement No. 2-71775).* 3.1.2 Certificate of Amendment to Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on January 27, 1987 (Incorporated by reference to Exhibit 3(a)(2) to the Company's Form 10-Q for the fiscal quarter ended January 31, 1987).* 3.1.3 Certificate of Amendment to Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on October 9, 1990 (Incorporated by reference to Exhibit 3(a)(3) to the Company's Form 10-K for the fiscal year ended July 28, 1990).* 3.1.4 Certificate of Amendment to Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on November 7, 1996 (Incorporated by reference to Exhibit 3.1.4 to the Company's Form 10-KSB for the fiscal quarter ended July 31, 1997).* 3.1.5 Certificate of Amendment to Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on May 4, 1998 (Incorporated by reference to Exhibit 2.1 to the Company's Form 8-K for an event of May 5, 1998).* 3.1.6 Certificate of Amendment to Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on January 5, 2000 (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K for an event of January 5, 2000).* 3.2 Amended By-Laws of the Company as amended (Incorporated by reference to the Company's Form 8-K filed May 17, 2002).*
3 4.1 1996 Stock Option Plan (Incorporated by reference to Exhibit A to the Company's Definitive Proxy Statement on Schedule 14A filed with the Commission on September 12, 1996 (Commission File No. 000-09922)).* 4.1.1 Amendment One to 1996 Stock Option Plan, effective January 5, 2000. 4.1.2 Amendment Two to 1996 Stock Option Plan, effective January 11, 2001. 4.2 2002 Long Term Incentive and Share Award Plan (Incorporated by reference to Exhibit B to the Company's Definitive Proxy Statement on Schedule 14A filed with the Commission on May 2, 2002 (Commission File No. 001-162831)).* 4.3 Employment Agreement, dated as of December 26, 2001, by and between the Company and Marcus R. Rowan (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed with the Commission on January 23, 2002 (Commission File No. 001-16283)).* 4.3.1 Letter Agreement, dated as of January 28, 2003, by and between the Company and Marcus R. Rowan regarding Increased Compensation. 4.4 Employment Agreement, dated as of December 26, 2001 by and between the Company and Mark C. Myers (Incorporated by reference to Exhibit 10.2 to the Company's Form 8-K filed with the Commission on January 23, 2002 (Commission File No. 001-16283)).* 4.4.1 Letter Agreement, dated as of January 28, 2003, by and between the Company and Mark C. Myers regarding Increased Compensation. 4.5 Form of certificate representing shares of Common Stock. 5 Opinion of Paul, Hastings, Janofsky & Walker LLP as to the legality of the common stock registered hereunder. 23.1 Consent of KBA Group LLP. 23.2 Consent of Paul, Hastings, Janofsky & Walker LLP (included in Exhibit 5). * Incorporated by reference.
4 ITEM 9. UNDERTAKINGS The Company hereby undertakes: A. (1) To file, during any period in which it offers or sells securities, a post-effective amendment to this Registration Statement to; (i) Include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) Reflect in the prospectus any facts or events which, individually or together, represent a fundamental change in the information in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and (iii) Include any additional or changed material information on the plan of distribution; provided, however, that the statements in paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required in a post-effective amendment is incorporated by reference from periodic reports filed by the Company under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (2) That, for determining liability under the Securities Act, treat each such post-effective amendment as a new registration statement of the securities offered, and the offering of the securities at that time to be the initial bona fide offering. (3) To file a post-effective amendment to remove from registration any of the securities that remain unsold at the end of the offering. (B) That insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Securities Act and will be governed by the final adjudication of such issue. 5 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 San Diego, State of California, on this 8th day of September, 2003. EQUIDYNE CORPORATION By: /s/ Jeffery B. Weinress ------------------------- Jeffery B. Weinress Chief Financial Officer POWER OF ATTORNEY Each person whose signature appears below hereby severally constitute and appoint Marcus R. Rowan, Mark C. Myers and Jeffery B. Weinress, and each of them with full power to act alone, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution and revocation, for each of him and in his name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) and additions to this registration statement, and to file or cause to be filed the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grant unto such attorneys-in-fact and agents, and each of them, the full power to do and perform each and every act and thing requisite and necessary to be done in and about the foregoing, as fully to all intents and purposes, as each of him might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their respective substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date /s/ Marcus R. Rowan Chief Executive Officer and September 8, 2003 - --------------------------------- Director (principal executive Marcus R. Rowan officer) /s/ Mark C. Myers President and Director September 8, 2003 - --------------------------------- Mark C. Myers /s/ Jeffery B. Weinress Chief Financial Officer September 8, 2003 - --------------------------------- (principal financial and Jeffrey B. Weinress accounting officer) /s/ James R. Gavin Non-Executive Chairman and September 8, 2003 - --------------------------------- Director Dr. James R. Gavin III
6 /s/ Harry P. Yergey Director September 8, 2003 - --------------------------------- Harry P. Yergey
7 INDEX TO EXHIBITS EQUIDYNE CORPORATION
Exhibit No. Description Page No. - ----------- ----------- -------- 3.1.1 Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on April 15, 1981 (Incorporated by reference to Exhibit 3(a)(1) to Registration Statement No. 2-71775).* 3.1.2 Certificate of Amendment to Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on January 27, 1987 (Incorporated by reference to Exhibit 3(a)(2) to the Company's Form 10-Q for the fiscal quarter ended January 31, 1987).* 3.1.3 Certificate of Amendment to Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on October 9, 1990 (Incorporated by reference to Exhibit 3(a)(3) to the Company's Form 10-K for the fiscal year ended July 28, 1990).* 3.1.4 Certificate of Amendment to Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on November 7, 1996 (Incorporated by reference to Exhibit 3.1.4 to the Company's Form 10-KSB for the fiscal quarter ended July 31, 1997).* 3.1.5 Certificate of Amendment to Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on May 4, 1998 (Incorporated by reference to Exhibit 2.1 to the Company's Form 8-K for an event of May 5, 1998).* 3.1.6 Certificate of Amendment to Certificate of Incorporation of the Company filed with the Secretary of State of the State of Delaware on January 5, 2000 (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K for an event of January 5, 2000).* 3.2 Amended By-Laws of the Company as amended (Incorporated by reference to the Company's Form 8-K filed May 17, 2002).* 4.1 1996 Stock Option Plan (Incorporated by reference to Exhibit A to the Company's Definitive Proxy Statement on Schedule 14A filed with the Commission on September 12, 1996 (Commission File No. 000-09922)).* 4.1.1 Amendment One to 1996 Stock Option Plan, effective January 5, 2000. 4.1.2 Amendment Two to 1996 Stock Option Plan, effective January 11, 2001. 4.2 2002 Long Term Incentive and Share Award Plan (Incorporated by reference to Exhibit B to the Company's Definitive Proxy Statement on Schedule 14A filed with the Commission on May 2, 2002 (Commission File No. 001-162831)).* 4.3 Employment Agreement, dated as of December 26, 2001, by and
between the Company and Marcus R. Rowan (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed with the Commission on January 23, 2002 (Commission File No. 001-16283)).* 4.3.1 Letter Agreement, dated as of January 28, 2003, by and between the Company and Marcus R. Rowan regarding Increased Compensation. 4.4 Employment Agreement, dated as of December 26, 2001 by and between the Company and Mark C. Myers (Incorporated by reference to Exhibit 10.2 to the Company's Form 8-K filed with the Commission on January 23, 2002 (Commission File No. 001-16283)).* 4.4.1 Letter Agreement, dated as of January 28, 2003, by and between the Company and Mark C. Myers regarding Increased Compensation. 4.5 Form of certificate representing shares of Common Stock. 5 Opinion of Paul, Hastings, Janofsky & Walker LLP as to the legality of the common stock registered hereunder. 23.1 Consent of KBA Group LLP. 23.2 Consent of Paul, Hastings, Janofsky & Walker LLP (included in Exhibit 5).
* Incorporated by reference. STATEMENT OF DIFFERENCES ------------------------ The trademark symbol shall be expressed as ............................'TM' EX-4 3 ex4-11.txt EXHIBIT 4.1.1 Exhibit 4.1.1 AMENDMENT NUMBER ONE TO EQUIDYNE CORPORATION 1996 STOCK OPTION PLAN The Equidyne Corporation 1996 Stock Option Plan (the "Plan") is hereby amended in the following respects: 1. STOCK. The aggregate number of shares which may be issued pursuant to the Plan as set forth in paragraph 3 of the Plan entitled "Stock", consisting of 300,000 of the Company's Common Stock as adjusted for the November 8, 1996 one-for-five reverse stock split, is hereby adjusted to 700,000 shares of the Company's Common Stock. 2. EFFECT OF AMENDMENTS This amendment to the Plan shall be effective as of January 5, 2000 pursuant to the approval of the stockholders of Equidyne Corporation at the Annual Meeting of Stockholders on January 5, 2000. Except to the extent specifically modified herein, the Plan shall remain in full force and effect. Equidyne Corporation By: /s/ Mark C. Myers Mark C. Myers, Secretary EX-4 4 ex4-12.txt EXHIBIT 4.1.2 Exhibit 4.1.2 AMENDMENT NUMBER TWO TO EQUIDYNE CORPORATION 1996 STOCK OPTION PLAN The Equidyne Corporation 1996 Stock Option Plan (the "Plan") is hereby amended in the following respects: 1. STOCK. The aggregate number of shares which may be issued pursuant to the Plan as set forth in paragraph 3 of the Plan entitled "Stock", consisting of 700,000 of the Company's Common Stock as previously amended, is hereby adjusted to 1,500,000 shares of the Company's Common Stock. 2. EFFECT OF AMENDMENTS This amendment to the Plan shall be effective as of January 11, 2001 pursuant to the approval of the stockholders of Equidyne Corporation at the Annual Meeting of Stockholders on January 11, 2001. Except to the extent specifically modified herein, the Plan shall remain in full force and effect. Equidyne Corporation By: /s/ Mark C. Myers Mark C. Myers, Secretary EX-4 5 ex4-31.txt EXHIBIT 4.3.1 Exhibit 4.3.1 January 28, 2003 Mr. Marcus R. Rowan 3510 Turtle Creek Blvd. #8F Dallas, TX 75219 Re: Compensation Dear Marcus: In consideration of your contributions to Equidyne Corporation and its affiliates ("Equidyne" or the "Company") over the past year, we are pleased to extend to you the following compensation on the terms set forth below. 1. Compensation. 1.1 Base Salary In consideration of your services, you will be paid a base biweekly salary of $10,019.23 ($260,500.00 annualized), effective December 28, 2002, payable in accordance with Equidyne's standard payroll practices. 1.2 Stock In consideration of your services, the Board of Directors has granted you an additional option to purchase 450,000 shares of Common Stock of Equidyne under the Company's 2002 Long Term Incentive And Share Award Plan. The option will be exercisable at $0.34 per share, the fair market value of the Common Stock on the date of grant or January 14, 2003. 225,000 of these options are exercisable immediately and the balance will vest monthly over a 12-month period from the date of grant, based on continued employment. Your option will have a term of ten years, though if your employment terminates before that time, only the shares which have vested prior to that time will be exercisable for the balance of their term on a non-qualified basis. The terms of your option will be set forth in the stock option agreement between you and the Company. 1.3 Bonus Payment In addition to your base salary and stock options, you will also receive a cash bonus of $102,583.00 with $51,915.50 paid in the next regular pay cycle with normal deductions following your acceptance of this letter. The balance to be paid in equal installments on March 31, 2003, June 30, 2003 and September 30, 2003 contingent on continued employment. All other terms of your employment shall remain as set forth in the December 26, 2001 letter agreement. You acknowledge that your employment with Equidyne is for an unspecified duration that constitutes at-will employment, and that either you or Equidyne can terminate this relationship at any time for any reason, with or without cause and with or without prior notice as set forth in the December 26, 2001 letter agreement. Please acknowledge and confirm your acceptance of this letter by signing and returning the enclosed copy of this letter as soon as possible. EQUIDYNE CORPORATION By: /s/ Mark Myers ------------------- Mark Myers President ACCEPTANCE: I accept the terms of my employment with Equidyne Corporation as set forth herein. I understand that this letter does not constitute a contract of employment for any specified period of time, and that my employment relationship may be terminated by either party, with or without cause and with or without notice. /s/ Marcus R. Rowan 1/31/03 ------------------- ----------------- Marcus R. Rowan Date EX-4 6 ex4-41.txt EXHIBIT 4.4.1 Exhibit 4.4.1 January 28, 2003 Mr. Mark C. Myers 1913 Deerfield Dr. Plano, TX 75023 Re: Compensation Dear Mark: In consideration of your contributions to Equidyne Corporation and its affiliates ("Equidyne" or the "Company") over the past year, we are pleased to extend to you the following compensation on the terms set forth below. 1. Compensation. 1.1 Base Salary In consideration of your services, you will be paid a base biweekly salary of $7,615.38 ($198,000 annualized), effective December 31, 2002, payable in accordance with Equidyne's standard payroll practices. 1.2 Stock In consideration of your services, the Board of Directors has granted you an additional option to purchase 180,000 shares of Common Stock of Equidyne under the Company's 2002 Long Term Incentive And Share Award Plan. The option will be exercisable at $0.34 per share, the fair market value of the Common Stock on the date of grant or January 14, 2003. 90,000 of these options are exercisable immediately and the balance will vest monthly over a 12-month period from the date of grant, based on continued employment. Your option will have a term of ten years, though if your employment terminates before that time, only the shares which have vested prior to that time will be exercisable for the balance of their term on a non-qualified basis. The terms of your option will be set forth in the stock option agreement between you and the Company. 1.3 Bonus Payment In addition to your base salary and stock options, you will also receive a cash bonus of $77,000 with $38,500 paid in the next regular pay cycle with normal deductions following your acceptance of this letter. The balance to be paid in equal installments on March 31, 2003, June 30, 2003 and September 30, 2003 contingent on continued employment. All other terms of your employment shall remain as set forth in the December 26, 2001 letter agreement. You acknowledge that your employment with Equidyne is for an unspecified duration that constitutes at-will employment, and that either you or Equidyne can terminate this relationship at any time for any reason, with or without cause and with or without prior notice as set forth in the December 26, 2001 letter agreement. Please acknowledge and confirm your acceptance of this letter by signing and returning the enclosed copy of this letter as soon as possible. EQUIDYNE CORPORATION By: /s/ Marcus Rowan ----------------------- Marcus Rowan CEO ACCEPTANCE: I accept the terms of my employment with Equidyne Corporation as set forth herein. I understand that this letter does not constitute a contract of employment for any specified period of time, and that my employment relationship may be terminated by either party, with or without cause and with or without notice. /s/ Mark C. Myers 1/31/03 ----------------- ------------------ Mark C. Myers Date EX-5 7 ex5.txt EXHIBIT 5 Exhibit 5 [Letterhead of Paul, Hastings, Janofsky & Walker LLP] Equidyne Corporation 11300 Sorrento Valley Road, Suite 255 San Diego, California 92121 Re: Equidyne Corporation Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as special counsel to Equidyne Corporation, a Delaware corporation (the "Company"), in connection with the preparation and filing of the Company's Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), on the date hereof for the registration of 2,670,000 shares (the "Shares") of Common Stock, par value $0.10 per share (the "Common Stock"), to be issued from time to time pursuant to the exercise of options under the Company's 1996 Stock Option Plan (the "Stock Option Plan"), the Company's 2002 Long Term Incentive and Share Award Plan (the "LTIP"), the Employment Agreement, dated as of December 26, 2001, as amended, between the Company and Marcus R. Rowan (the "Rowan Employment Agreement"), and the Employment Agreement, dated as of December 31, 2001, as amended, between the Company and Mark C. Myers (the "Myers Employment Agreement" and, together with the Stock Option Plan, the LTIP and the Rowan Employment Agreement, the "Company Plans and Agreements"). In rendering this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Certificate of Incorporation, as amended, of the Company, certified as of the date hereof by the Secretary of State of the State of Delaware; the Amended By-Laws of the Company, certified to be effective on the date hereof by officers of the Company; the resolutions of the shareholders of the Company, the Board of Directors of the Company and the committees of the Board of Directors of the Company, certified to be effective on the date hereof by officers of the Company; the Registration Statement; the Stock Option Plan, the LTIP, the Rowan Employment Agreement and the Myers Employment Agreement; and such other corporate records, resolutions, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth. In such examination, we have assumed, without independent investigation, the genuiness of all signatures, the legal capacity of all natural persons, the authenticity and completeness of all documents, certificates and instruments submitted to us as originals, the conformity with the originals of all documents, certificates and instruments submitted to us as certified, conformed or photostatic copies and the authenticity and completeness of such latter documents, certificates and instruments. We have assumed that there are no oral modifications or written agreements or understandings which limit, modify or otherwise alter the terms, provisions, and conditions of, or relate to, the transactions contemplated by the corporate records, resolutions, agreements, documents and other instruments, and such certificates or comparable documents submitted to us. As to all matters of fact relevant or material to this opinion, we have relied without independent investigation on, and assumed the accuracy and completeness of, certificates or comparable documents of officers and representatives of the Company. We have not made an investigation as to, and have not independently verified, the facts underlying the matters covered by the certificates. Based upon and subject to the foregoing, we are of the opinion that, as of the date hereof, the Shares have been duly authorized by the Company and, assuming the options to acquire the Shares are issued in accordance with the Company Plans and Agreements, when issued and delivered by the Company upon the exercise of options in accordance with the Company Plans and Agreements, the Shares will be validly issued, fully paid and non-assessable. We are members of the Bar of the State of New York and our opinion herein is limited to the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States, and we do not express any opinion as to the laws of any other state or jurisdiction. We consent to the use of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder. Very truly yours, /s/ Paul, Hastings, Janofsky & Walker LLP EX-23 8 ex23-1.txt EXHIBIT 23.1 Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference herein of our report dated August 13, 2003, with respect to the consolidated financial statements of Equidyne Corporation and Subsidiaries included in its Annual Report on Form 10-KSB/A for the year ended July 31, 2003, filed with the Securities and Exchange Commission. /s/ KBA Group LLP Dallas, Texas September 8, 2003 -----END PRIVACY-ENHANCED MESSAGE-----