-----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, CcR2IOdn2K45UOHupQ4LbNdxJyLXiN24hT3Ow6k2wvE+0QNk6rx4KxJpDvjhSA8X 9SgRY063Auyx7vU8UVklOg== /in/edgar/work/20000615/0000950120-00-000146/0000950120-00-000146.txt : 20000919 0000950120-00-000146.hdr.sgml : 20000919 ACCESSION NUMBER: 0000950120-00-000146 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20000615 EFFECTIVENESS DATE: 20000615 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EQUIDYNE CORP CENTRAL INDEX KEY: 0000352281 STANDARD INDUSTRIAL CLASSIFICATION: [3845 ] IRS NUMBER: 042608713 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-39354 FILM NUMBER: 655504 BUSINESS ADDRESS: STREET 1: 13 COLUMBIA DR STE 5 CITY: AMHERST STATE: NH ZIP: 03031 BUSINESS PHONE: 6038806300 MAIL ADDRESS: STREET 1: 13 COLUMBIA DR STREET 2: STE 18 CITY: AMHERST STATE: NH ZIP: 03031 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN ELECTROMEDICS CORP DATE OF NAME CHANGE: 19920703 S-8 1 0001.txt FORM S-8 FOR EQUIDYNE CORP. - -------------------------------------------------------------------------------- As Filed With the Securities and Exchange Commission on June 15, 2000 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 Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification No.) 238 Littleton Road, Westford, MA 01886, (978) 692-6680 - -------------------------------------------------------------------------------- (Address and Telephone Number of Principal Executive Offices and Place of Business) 1996 Stock Option Plan Shares Issuable to Joseph R. Nelson Upon Exercise of Outstanding Stock Options Granted Pursuant to an Employment Agreement Shares Issued to Thomas A. Slamecka and Michael T. Pieniazek Pursuant to their Employment Agreements Various Stock Option Agreements - -------------------------------------------------------------------------------- (Full title of the plans) Michael T. Pieniazek Executive Vice President and Chief Financial Officer 238 Littleton Road Westford, MA 01886 (978) 692-6680 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Agent for Service) Copy to: Bruce A. Rich, Esq. THELEN REID & PRIEST LLP 40 West 57th Street New York, NY 10019 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(1) 400,000 shares(2) $4.97(7) $1,988,000.00 $524.83 - ------------------------- ---------------------- ----------------------- ---------------------- ---------------------- Common Stock, Par Value $.10 600,000 shares(3) $1.125(8) $675,000.00 $178.20 - ------------------------- ---------------------- ----------------------- ---------------------- ---------------------- Common Stock, Par Value $.10 289,549 shares(4) $4.20(9) $1,216,105.80 $321.05 - ------------------------- ---------------------- ----------------------- ---------------------- ---------------------- Common Stock, Par Value $.10 100,000 shares(5) $4.97(7) $497,000.00 $131.21 - ------------------------- ---------------------- ----------------------- ---------------------- ---------------------- Common Stock, Par Value $.10 50,000 shares(6) $4.97(7) $248,500.00 $65.60 - ------------------------- ---------------------- ----------------------- ---------------------- ---------------------- Total 1,439,549 shares $1,220.89 - ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the "Securities Act"), this registration statement covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. (2) On March 21, 1997, Equidyne Corporation (formerly American Electromedics Corp.) (the "Company") registered 300,000 shares under its 1996 Stock Option Plan (the "Stock Option Plan") on a Form S-8 filed with the Securities and Exchange Commission (the "Commission"), File No. 333-23741. On January 5, 2000, the Company amended the Stock Option Plan by increasing the number of shares reserved under the Stock Option Plan from 300,000 to 700,000. Pursuant to this Registration Statement, the Registrant is registering the additional 400,000 shares reserved under the Stock Option Plan. (3) Represents 600,000 shares issuable upon the exercise of options granted to Joseph R. Nelson by a stock option agreement issued pursuant to an employment agreement between the Company and Mr. Nelson (the "Nelson Employment Agreement"), plus, pursuant to Rule 416(a) of the Securities Act, such indeterminate number of shares as may be issued to prevent dilution resulting from stock splits, stock dividends, or similar transactions. (4) This amount represents the aggregate number of shares of Common Stock to be issued upon the exercise of options granted under the form of Stock Option Agreements filed as an exhibit hereto. Includes additional shares to prevent dilution resulting from stock splits, stock dividends or similar transactions. (5) This amount represents the aggregate number of shares of Common Stock awarded to Thomas A. Slamecka pursuant to the terms of an Employment Agreement between the Company and Mr. Slamecka. (6) This amount represents the aggregate number of shares of Common Stock awarded to Michael T. Pieniazek pursuant to the terms of an Employment Agreement between the Company and Mr. Pieniazek. (7) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rules 457(c) and (h)(1) of the Securities Act. The price per share and the aggregate offering price are calculated based upon the average of the high and low prices of the Company's Common Stock on June 14, 2000 as reported on the OTC Bulletin Board. (8) Calculated in accordance with Rule 457(h)(1) as this amount represents the exercise price of the options granted pursuant to the Nelson Employment Agreement. (9) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457 (h) of the Securities Act. Such computation is based on the weighted average exercise price of $4.20 per share covering the Stock Option Agreements. 2 EQUIDYNE CORPORATION EQUIDYNE CORPORATION (FORMERLY AMERICAN ELECTROMEDICS CORP.) (I) 1996 STOCK OPTION PLAN (II) SHARES ISSUABLE TO JOSEPH R. NELSON UPON EXERCISE OF CERTAIN OUTSTANDING STOCK OPTIONS GRANTED PURSUANT TO AN EMPLOYMENT AGREEMENT (III) SHARES ISSUED TO THOMAS A. SLAMECKA AND MICHAEL T. PIENIAZEK PURSUANT TO THE TERMS OF THEIR EMPLOYMENT AGREEMENTS AND (IV) SHARES ISSUABLE UPON EXERCISE OF OPTIONS GRANTED PURSUANT TO STOCK OPTION AGREEMENTS PART I INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS ITEM 1. PLAN INFORMATION.* ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.* * Information required by Part I to be contained in the Section 10(a) Prospectus is omitted from the Registration Statement in accordance with Rule 428 under the Securities Act of 1933 and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The Commission allows us to "incorporate by reference" the information we file with them, which means we can disclose important information to you by referring you to those documents. The information included in the following documents is incorporated by reference and is considered to be a part of this prospectus. The most recent information that we file with the Commission automatically updates and supersedes more dated information. We have previously filed the following documents with the Commission and are incorporating them by reference into this prospectus: (a) The Company's Annual Report on Form 10-KSB for the fiscal year ended July 31, 1999 (Commission File No. 0-9922); (b) The Company's Quarterly Report on Form 10-QSB for the quarters ended October 31, 1999, January 31, 2000 and April 30, 2000 (Commission File No. 0-9922); (c) The Company's Current Reports on Form 8-K dated December 2, 1999 and January 10, 2000 (Commission File No. 0-9922); (d) The Company's Notice of Annual Meeting of Stockholders and Proxy Statement for its 1999 Annual Meeting of Stockholders, dated December 2, 1999, filed pursuant to Section 14 of the Exchange Act (Commission File No. 0-9922); (e) The description of the Company's Common Stock contained in the Company's Post-Effective Amendment No. 1 to its Registration Statement on Form SB-2 filed with the Commission on December 22, 1999 (Commission File No. 333-58937); (f) The employment agreement between the Company and Thomas A. Slamecka, as amended and restated, dated as of January 1, 1998, filed as Exhibit 10.10 in the Company's Registration Statement on Form SB-2 filed with the Commission on July 13, 1998 (Commission File No. 333-58937); (g) The employment agreement between the Company and Michael T. Pieniazek, as amended and restated, dated as of January 1, 1998, filed as Exhibit 10.11in the Company's Registration Statement on Form SB-2 filed with the Commission on July 13, 1998 (Commission File No. 333-58937); (h) The employment agreement between the Company and Joseph R. Nelson, dated as of December 1, 1999, filed as Exhibit 10.10 in the Company's Amendment No. 1 to its Registration Statement on Form SB-2 filed with the Commission on January 31, 2000 (Commission File No. 333-75399); and (i) The 1996 Stock Option Plan, filed as Exhibit 1 to the Company's Notice of Annual Meeting of Stockholders and Proxy Statement for its Annual Meeting of Stockholders, dated September 13, 1996, filed pursuant to Section 14 of the Exchange Act (Commission File No. 0-9922). 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 in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of the Registration Statement to the extent that a statement contained herein modifies or replaces such statement. Any such statement shall not be deemed to constitute a part of this Registration Statement except as so modified or replaced. ITEM 4. DESCRIPTION OF SECURITIES Not Applicable ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSEL The legality of the Common Stock issuable upon (i) the exercise of options granted under the Nelson Employment Agreement, (ii) the grant of shares of Common Stock under the Slamecka Employment Agreement, (iii) the grant of shares of Common Stock under the Pieniazek Employment Agreement, and (iv) the exercise of options granted under the Stock Option Agreements offered hereby will be passed upon for the Company by Thelen Reid & Priest LLP, the Company's Counsel. This firm owns 40,000 shares of Common Stock and warrants to purchase 20,000 shares of Common Stock at $1.25 per share exercisable through August 2004. II-2 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Article VII, Section 7 of the By-Laws of the Company provide in part that the Company shall indemnify its directors, officers, employees and agents to the fullest extent permitted by the General Corporation Law of the State of Delaware (the "DGCL"). Section 145 of the DGCL permits a corporation, among other things, to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), 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), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding 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, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. 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. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable ITEM 8 EXHIBITS. Exhibit No. Description ----------- ----------- 4.3.1 Employment Agreement, dated as of December 1, 1999 by and between the Company and Joseph R. Nelson, incorporated by reference to Exhibit 10.10 of the Company's Amendment No. 1 to its registration statement on Form SB-2 filed with the Commission on January 31, 2000 (Commission File No. 333-75399). 4.3.2 Amended Employment Agreement, dated as of January 1, 1998, by and between the II-3 Company and Thomas A. Slamecka, incorporated by reference to Exhibit 10.10 in the Company's Registration Statement on Form SB-2 filed with the Commission on July 13, 1998 (Commission File No. 333-58937). 4.3.3 Employment Agreement, dated as of January 1, 1998, by and between the Company and Michael T. Pieniazek, incorporated by reference to Exhibit 10.11 in the Company's Registration Statement on Form SB-2 filed with the Commission on July 13, 1998 (Commission File No. 333-58937). 4.4.1* Form of Stock Option Agreements. 4.4.2* Form of Stock Option Agreements. 4.4.3* Schedule of Options Granted under Stock Option Agreements. 5* Opinion of Thelen Reid & Priest LLP as to the legality of the common stock issuable upon (i) the exercise of options granted under the Nelson Employment Agreement, (ii) the exercise of options granted under the Stock Option Agreements, (iii) the grant of shares under the Slamecka Employment Agreement, and (iv) the grant of shares under the Pieniazek Employment Agreement. 23.1* Consent of Ernst & Young LLP 23.3 Consent of Thelen Reid & Priest LLP (included in Exhibit 5). * Filed herewith. ITEM 9. UNDERTAKINGS The Company hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement; (b) To include any prospectus required by Section 10(a)(3) of the Securities Act; (c) 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. 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 and 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 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; (d) 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, II-4 however, that paragraphs (b) and (c) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement; (e) That, for the purpose of determining any liability under the Securities Act, 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; (f) To remove from registration by means of a post-effective amendment any of the securities that remain unsold at the end of the offering; (g) That, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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; and (h) 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 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. II-5 SIGNATURES IN ACCORDANCE WITH 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 AUTHORIZED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN WESTFORD, MASSACHUSETTS, ON THE 15TH DAY OF JUNE, 2000. EQUIDYNE CORPORATION BY: /S/ MICHAEL T. PIENIAZEK_ ------------------------- Michael T. Pieniazek Executive Vice President and Chief Financial Officer Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Thomas A. Slamecka Chairman of the Board June 15, 2000 - --------------------------------- Thomas A. Slamecka /s/ Joseph R. Nelson Director, President June 15, 2000 - --------------------------------- Chief Executive Joseph R. Nelson Officer /s/ Michael T. Pieniazek Director, Executive June 15, 2000 - ------------------------------ Vice President and Michael T. Pieniazek Chief Financial Officer /s/ Jim Fukushima Director, Vice June 15, 2000 - --------------------------------- Chairman Jim Fukushima /s/ Blake C. Davenport Director June 15, 2000 - --------------------------------- Blake C. Davenport /s/ James Gavin Director June 15, 2000 - --------------------------------- Dr. James Gavin Director June 15, 2000 /s/ Marcus Rowan - --------------------------------- Marcus R. Rowan
II-6 INDEX TO EXHIBITS AMERICAN ELECTROMEDICS CORP. - ------------ ----------------------------------- ----------------------- Sequentially Exhibit Numbered No. Description Page - ------------ ----------------------------------- ----------------------------- 4.4.1 Form of Stock Option Agreements II-8 - ------------ ----------------------------------- ----------------------------- 4.4.2 Form of Stock Option Agreements II-16 - ------------ ----------------------------------- ----------------------------- 4.4.3 Schedule of Options Granted under Stock Option Agreements II-23 - ------------ ----------------------------------- ----------------------------- 5 Opinion of Thelen Reid & Priest LLP II-24 - ------------ ----------------------------------- ----------------------------- 23.1 Consent of Ernst & Young LLP II-26 - ------------ ----------------------------------- ----------------------------- II-7 EX-4 2 0002.txt EXHIBIT 4.4.1 Exhibit 4.4.1 STOCK OPTION AGREEMENT AGREEMENT, dated as of by and between AMERICAN --------------- ELECTROMEDICS CORP., a Delaware corporation (the "Company"), and (the "Optionee"). - ---------------- W I T N E S S E T H WHEREAS the Company agreed to grant a stock option (the "Option") to the Optionee for the purchase of shares of the ----------------- ----------- Company's Common Stock, par value $.10 per share (the "Common Stock"); and WHEREAS, the Board of Directors of the Company has authorized the grant of the Option to the Optionee; NOW, THEREFORE, in consideration of the premises, mutual covenants herein set forth and other good and valuable consideration, subject to the terms and conditions herein, the Company and the Optionee hereby agree as follows: 1. Grant of Option. Subject to the terms and conditions herein, the --------------- Company hereby grants to the Optionee an option (the "Option") to purchase shares (the "Option Shares") of its --------------------- --------- Common Stock at an exercise price (the "Exercise Price") of $ per share, as ----- may be adjusted from time to time as provided in this Agreement. 2. Exercise of the Option. ---------------------- 2.01. Subject to adjustments as provided in Section 5 herein, the Option shall be cumulatively exercisable: . ------------------ 2.02. Should the employment be terminated either (i) prior to by the terms of an employment agreement between the Company and - -------------- the optionee, if any, (ii) by the Company other than for cause, as defined therein, or (iii) by the Optionee, all Option Shares which have vested prior to such termination shall be exercisable for a period of ninety (90) days from the date of such termination of the employment, but not beyond the Expiration Date in Section 2.03 hereof. Should the employment be terminated by the Company for cause, as defined therein, all Option Shares which have vested shall immediately expire as of such termination date, and no longer be exercisable after the date of such termination of the employment. All unvested Option Shares shall terminate upon such termination of the employment regardless of the reason for such termination. 2.03. The Option shall expire on (the "Expiration Date") ------------ subject to earlier termination as provided herein. 3. Rights of Optionee. The Optionee shall not have any rights to ------------------ dividends or any other rights of a stockholder with respect to any Option Shares until such Shares shall have been issued to him (as evidenced by the appropriate entry on the transfer books of the Company) upon purchase of such Shares upon exercise of the Option. Furthermore, nothing contained in this Agreement shall confer upon the Optionee any right to be continued in the employ of the Company or its subsidiaries beyond what is called for in an Employment Agreement, if any, or shall prevent the Company from terminating his employment in accordance with the Employment Agreement, if any. 4. Non-Transferability of Option. This Option shall not be ----------------------------- transferable other than by will or by the laws of descent and distribution, and may be exercised during the Optionee's lifetime only by him. 5. Adjustments. ------------ 5.01 Adjustments by the Company. In the event of a stock -------------------------- dividend, stock split-up, share combination, exchange of shares, recapitalization, merger, consolidation, acquisition or disposition of property or shares, reorganization, liquidation or other similar changes or transactions, by the Company during the term of the Option, the Board of Directors of the Company shall make such adjustment of the number and class of shares then covered by the Option, or of the Exercise Price, or both, whose determination shall be conclusive. To the extent practicable, the Company shall give the Optionee prior notice of any such event, provided that the failure by the Company to give such notice shall not subject the Company to any liability herein. 5.02 Adjustments Due to Merger, Consolidation, Reorganization, --------------------------------------------------------- Asset Sale, Liquidation, etc. (a) If the Company shall be the surviving - ---------------------------- corporation in any reorganization, merger, consolidation, etc. of the Company with one or more other corporations, any then outstanding Option shall pertain to and apply to the securities to which a holder of the number of shares of Common Stock subject to such Option would have been entitled immediately following such reorganization, merger, consolidation, etc. with a corresponding proportionate adjustment of the Exercise Price as to which such Option may be exercised so that the aggregate Exercise Price as to which such Option may be exercised shall be the same as the aggregate Exercise Price as to which such Option may be exercised for the shares remaining subject to the Option immediately prior to such reorganization, merger, consolidation, etc. (b) In the event of a merger or consolidation in which the Company is not the surviving corporation, or sale of all or substantially all of the assets of the Company in which outstanding shares of Common Stock are exchanged for securities, cash or other property of any other corporation or business entity or in the event of a liquidation of the Company (collectively, a "Corporate Transaction"), the Board of Directors of the Company, or the board of directors of any corporation assuming the obligations of the Company, may, in its discretion, take any one or more of the following actions, as to outstanding Options: (i) provide that such Options shall be assumed or equivalent Options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), (ii) upon written notice to the Optionee, provide that all unexercised Options will terminate immediately prior to the consummation of such transaction unless exercised by the Optionee within a specified period following the date of such notice, or (iii) in the event of a Corporate Transaction under the terms of which holders of the Common Stock of the Company will receive upon consummation thereof a cash payment for each share surrendered in the Corporate Transaction (the "Transaction Price"), make or provide for a cash payment to the Optionee equal to the difference between (A) the Transaction Price times the number of shares of Common Stock subject to such outstanding Options (to the extent then exercisable at prices not in excess of the Transaction Price) and (B) the aggregate Exercise Price of all such outstanding Options in exchange for the termination of such Options. 6. Reservation of Shares. The Company shall at all times during the --------------------- term of the Option reserve and keep available such number of shares of Common Stock or such other class of stock then subject to the Option as shall be sufficient to satisfy the requirements of this Agreement. The Company shall list such shares of Common Stock on the national securities exchange or automated quotation system on which the Company's Common Stock is then listed. 7. Exercise Procedure. ------------------ 7.01 Manner of Exercise. The purchase rights evidenced by this Option Agreement shall be exercised by the optionee with the Notice of Exercise in the form of Exhibit A hereto duly executed by the Optionee, to the Company at its principal office (or such other office as may be designated by the Company to the Optionee), accompanied by payment (in cash, by wire transfer or by certified or official bank check or checks) of the Purchase Price, or by delivering to the Company the number of shares of the Company's Common Stock having a value on the date of exercise equal to such Purchase Price. In lieu of a monetary payment or delivery of shares for the applicable Purchase Price, the Holder may elect to receive, without the payment of any additional consideration, shares of Common Stock equal to the value of the Shares to be acquired upon exercise by completing the Notice of Exercise with the net issuance election marked. Thereupon, the Company shall issue to the Optionee, such number of shares of Common Stock as is computed using the following formula: X = Y(A-B) ------ A where X = the number of shares to be issued to the Holder pursuant to this Section 7.01. Y = the number of Shares in respect of which the net issuance election is made pursuant to this Section 7.01. A = the closing price of one share of Common Stock for the last trading day immediately preceding the date of the Notice of Exercise is given pursuant to this Section 7.01, which closing price shall be the last sale price regular way or if no reported last sale price regular way for such, the last high bid price, in either case on the principal national securities or stock quotation system on which the Common Stock is listed or traded. B = the applicable Purchase Price in effect at the time the net issuance election is made pursuant to this Section 7.01. 7.02 Partial Exercise. Options may be exercised for less than the full number of shares of Common Stock at the time called for hereby, in which case the number of Shares receivable upon the exercise of the Options as a whole, and the sum payable upon the exercise of the Options as a whole, shall be proportionately reduced. 7.03 Compliance. The Company, however, shall not be required to issue or deliver the stock certificate pursuant to Section 7.01 hereof until it has complied with all requirements of the Securities Act of 1933, as amended (the "Securities Act"), the Securities Exchange Act of 1934, as amended, any securities exchange or automated quotation system on which the Company's Common Stock may then be listed, and all applicable state laws in connection with the issuance of the Option Shares or their listing on said securities exchange or system, including receiving representations by the Optionee as reasonably required to ensure compliance with the foregoing laws. 7.04 Legend. If the Purchased Shares are not then covered by a registration statement in accordance with Section 8 hereof, each certificate for the Purchased Shares shall bear the following legend: "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE REGISTRATION PROVISIONS OF SAID ACT HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED." 8. Registration Statement. Upon the written request of the Optionee, ---------------------- the Company shall use its best efforts to prepare and file with the Securities and Exchange Commission (the "Commission") a Registration Statement (the "Registration Statement") on Form S-8 or any successor form under the Securities Act, assuming continued eligibility by the Company to use such Form, for the purpose of registering for purchase and sale of the Option Shares. The Company shall bear the costs of preparing and filing the Registration Statement (other than any selling costs of the Optionee) and may include in such Registration Statement other shares of its Common Stock underlying options or awards granted to other persons. Notwithstanding the provisions of this Section 8, the Company shall not be obligated to file a registration statement hereunder if (i) the Purchased Shares may then be sold pursuant to Rule 144 under the Securities Act or (ii) the Company is not able to use a Form S-8. 9. Notices. Each notice relating to this Agreement shall be in ------- writing and delivered in person or by facsimile or certified mail to the following addresses: If to the Company American Electromedics Corp. 13 Columbia Drive Amherst, New Hampshire 03031 Attn: Michael T. Pieniazek, President Fax: (603) 880-6390 If the Optionee: -------------------------------- -------------------------------- -------------------------------- or to such other address as either party hereto may hereinafter duly give to the other. 10. Binding. This Agreement shall be binding upon and inure to ------- the benefit of the parties hereto, and their successors, assigns, heirs and administrators. 11. Entire Agreement. This Agreement constitutes the entire ---------------- agreement between the parties hereto with respect to the matters herein, and cannot be amended, modified or terminated except by an agreement in writing executed by the parties hereto. 12. Governing Law. This Agreement shall be construed in ------------- accordance with and governed by the laws of the State of Delaware without regard to the conflicts of law principles thereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. AMERICAN ELECTROMEDICS CORP. By: ----------------------------- Michael T. Pieniazek, Chief Financial Officer ----------------------------- (optionee signature) EXHIBIT A NOTICE OF EXERCISE (TO BE EXECUTED BY THE OPTIONEE DESIRING TO EXERCISE THE RIGHT TO PURCHASE SHARES PURSUANT TO THE OPTION AGREEMENT.) The undersigned Optionee hereby: (a) Irrevocably elects to exercise the Options to the extent of purchasing Shares; ------- (b) Makes payment in full of the aggregate Exercise Price for those Shares in the amount of $ by wire transfer or the delivery of ----------- certified funds or a bank cashier's check in the amount of $ ; or ----------- tenders shares of Common Stock having a fair market value of $ ; or ----- ------ shares as determined by the net issuance formula set forth in Section 7.01 - ---- of the Option Agreement. (c) Requests that a certificate for such Shares be issued in the name of the undersigned, or, if the name and address of some other person is specified below, in the name of such other person: --------------------------------------------------- --------------------------------------------------- --------------------------------------------------- (Name and address of person other than the undersigned in whose name Shares are to be registered.) DATED: -------------------------- ------------------------------------------ Signature (This signature must conform in all respects to the name of the Optionee as specified on the face of the Option Agreement.) - --------------------------------- ------------------------------------------ Social Security Number Printed Name or Employer ID Number Address: ---------------------------------- ---------------------------------- EX-4 3 0003.txt EXHIBIT 4.4.2 Exhibit 4.4.2 STOCK OPTION AGREEMENT AGREEMENT, dated as of by and between EQUIDYNE --------------- CORPORATION, a Delaware corporation (the "Company"), and (the ---------------- "Optionee"). W I T N E S S E T H WHEREAS the Company agreed to grant a stock option (the "Option") to the Optionee for the purchase of shares of the ----------------- ----------- Company's Common Stock, par value $.10 per share (the "Common Stock"); and WHEREAS, the Board of Directors of the Company has authorized the grant of the Option to the Optionee; NOW, THEREFORE, in consideration of the premises, mutual covenants herein set forth and other good and valuable consideration, subject to the terms and conditions herein, the Company and the Optionee hereby agree as follows: 1. Grant of Option. Subject to the terms and conditions herein, the --------------- Company hereby grants to the Optionee an option (the "Option") to purchase shares (the "Option Shares") of its Common Stock - --------------------- --------- at an exercise price (the "Exercise Price") of $ per share, as may be ----- adjusted from time to time as provided in this Agreement. 2. Exercise of the Option. ---------------------- 2.01. Subject to adjustments as provided in Section 5 herein, the Option shall be cumulatively exercisable: . ------------------- 2.02. The Option shall expire on (the ------------ "Expiration Date") subject to earlier termination as provided herein. 3. Rights of Optionee. The Optionee shall not have any rights to ------------------ dividends or any other rights of a stockholder with respect to any Option Shares until such Shares shall have been issued to him (as evidenced by the appropriate entry on the transfer books of the Company) upon purchase of such Shares upon exercise of the Option. Furthermore, nothing contained in this Agreement shall confer upon the Optionee any right to be continued in the employ of the Company or its subsidiaries beyond what is called for in an Employment Agreement, if any, or shall prevent the Company from terminating his employment in accordance with the Employment Agreement, if any. 4. Non-Transferability of Option. This Option shall not be ----------------------------- transferable other than by will or by the laws of descent and distribution, and may be exercised during the Optionee's lifetime only by him. 5. Adjustments. ------------ 5.01 Adjustments by the Company. In the event of a stock -------------------------- dividend, stock split-up, share combination, exchange of shares, recapitalization, merger, consolidation, acquisition or disposition of property or shares, reorganization, liquidation or other similar changes or transactions, by the Company during the term of the Option, the Board of Directors of the Company shall make such adjustment of the number and class of shares then covered by the Option, or of the Exercise Price, or both, whose determination shall be conclusive. To the extent practicable, the Company shall give the Optionee prior notice of any such event, provided that the failure by the Company to give such notice shall not subject the Company to any liability herein. 5.02 Adjustments Due to Merger, Consolidation, Reorganization, --------------------------------------------------------- Asset Sale, Liquidation, etc. (a) If the Company shall be the surviving - ---------------------------- corporation in any reorganization, merger, consolidation, etc. of the Company with one or more other corporations, any then outstanding Option shall pertain to and apply to the securities to which a holder of the number of shares of Common Stock subject to such Option would have been entitled immediately following such reorganization, merger, consolidation, etc. with a corresponding proportionate adjustment of the Exercise Price as to which such Option may be exercised so that the aggregate Exercise Price as to which such Option may be exercised shall be the same as the aggregate Exercise Price as to which such Option may be exercised for the shares remaining subject to the Option immediately prior to such reorganization, merger, consolidation, etc. (b) In the event of a merger or consolidation in which the Company is not the surviving corporation, or sale of all or substantially all of the assets of the Company in which outstanding shares of Common Stock are exchanged for securities, cash or other property of any other corporation or business entity or in the event of a liquidation of the Company (collectively, a "Corporate Transaction"), the Board of Directors of the Company, or the board of directors of any corporation assuming the obligations of the Company, may, in its discretion, take any one or more of the following actions, as to outstanding Options: (i) provide that such Options shall be assumed or equivalent Options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), (ii) upon written notice to the Optionee, provide that all unexercised Options will terminate immediately prior to the consummation of such transaction unless exercised by the Optionee within a specified period following the date of such notice, or (iii) in the event of a Corporate Transaction under the terms of which holders of the Common Stock of the Company will receive upon consummation thereof a cash payment for each share surrendered in the Corporate Transaction (the "Transaction Price"), make or provide for a cash payment to the Optionee equal to the difference between (A) the Transaction Price times the number of shares of Common Stock subject to such outstanding Options (to the extent then exercisable at prices not in excess of the Transaction Price) and (B) the aggregate Exercise Price of all such outstanding Options in exchange for the termination of such Options. 6. Reservation of Shares. The Company shall at all times during the --------------------- term of the Option reserve and keep available such number of shares of Common Stock or such other class of stock then subject to the Option as shall be sufficient to satisfy the requirements of this Agreement. The Company shall list such shares of Common Stock on the national securities exchange or automated quotation system on which the Company's Common Stock is then listed. 7. Exercise Procedure. ------------------ 7.01 Procedure. (a) The Optionee may exercise the Option, at --------- any time or from time to time as provided herein, by delivering to the Company a written notice duly signed by the Optionee stating the number of Option Shares that the Optionee has elected to purchase and accompanied by payment in an amount equal to the full purchase price for the Option Shares to be purchased (the "Purchased Shares"). The notice may be in form of the "Exercise of Option to Purchase Shares" attached hereto. The payment may either be in cash or by check. (b) Following receipt by the Company of such notice of exercise and full payment, the Company shall issue, as soon as practicable, a stock certificate for the Purchased Shares in the name as designated by the Optionee and deliver the certificate to the Optionee. 7.02 Compliance. The Company, however, shall not be required ---------- to issue or deliver the stock certificate pursuant to Section 7.01(b) hereof until it has complied with all requirements of the Securities Act of 1933, as amended (the "Securities Act"), the Securities Exchange Act of 1934, as amended, any securities exchange or automated quotation system on which the Company's Common Stock may then be listed, and all applicable state laws in connection with the issuance of the Option Shares or their listing on said securities exchange or system, including receiving representations by the Optionee as reasonably required to ensure compliance with the foregoing laws. 7.03 Legend. If the Purchased Shares are not then covered by a ------ registration statement in accordance with Section 8 hereof, each certificate for the Purchased Shares shall bear the following legend: "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE REGISTRATION PROVISIONS OF SAID ACT HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED." 8. Registration Statement. Upon the written request of the Optionee, ---------------------- the Company shall use its best efforts to prepare and file with the Securities and Exchange Commission (the "Commission") a Registration Statement (the "Registration Statement") on Form S-8 or any successor form under the Securities Act, assuming continued eligibility by the Company to use such Form, for the purpose of registering for purchase and sale of the Option Shares. The Company shall bear the costs of preparing and filing the Registration Statement (other than any selling costs of the Optionee) and may include in such Registration Statement other shares of its Common Stock underlying options or awards granted to other persons. Notwithstanding the provisions of this Section 8, the Company shall not be obligated to file a registration statement hereunder if (i) the Purchased Shares may then be sold pursuant to Rule 144 under the Securities Act or (ii) the Company is not able to use a Form S-8. 9. Notices. Each notice relating to this Agreement shall be in writing ------- and delivered in person or by facsimile or certified mail to the following addresses: If to the Company Equidyne Corporation 238 Littleton Road Westford, MA 01886 Attn: Michael T. Pieniazek, Executive Vice President Fax: (603) 880-6390 If the Optionee: -------------------------------- -------------------------------- -------------------------------- or to such other address as either party hereto may hereinafter duly give to the other. 10. Binding. This Agreement shall be binding upon and inure to ------- the benefit of the parties hereto, and their successors, assigns, heirs and administrators. 11. Entire Agreement. This Agreement constitutes the entire agreement ---------------- between the parties hereto with respect to the matters herein, and cannot be amended, modified or terminated except by an agreement in writing executed by the parties hereto. 12. Governing Law. This Agreement shall be construed in accordance ------------- with and governed by the laws of the State of Delaware without regard to the conflicts of law principles thereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. EQUIDYNE CORPORATION By: -------------------------------- Michael T. Pieniazek, Executive Vice President and Chief Financial Officer ----------------------------------- (optionee signature) Exercise of Option To Purchase Shares ------------------ To: EQUIDYNE CORPORATION The undersigned hereby exercises the within Option for the purchase of shares (the "Shares") of Equidyne Corporation Common Stock granted under - ------ a Stock Option Agreement, dated as of , , and herewith makes -------------- ---- payment of the purchase price by the delivery of $ . In the event the ------ Shares are not registered under the Securities Act of 1933, as amended, the undersigned shall provide such representations as may be required by the Company to fulfill any exemptions that may be sought under said Act. Kindly issue the certificate for the Shares in accordance with the instructions given below: ----------------------------- Signature Instructions for issuance of stock: - ------------------------------------ Name - ------------------------------------ - ------------------------------------ Address - ------------------------------------ Social Security Number EX-4 4 0004.txt EXHIBIT 4.4.3 EXHIBIT 4.4.3 EQUIDYNE CORPORATION (FORMERLY AMERICAN ELECTROMEDICS CORP.) Schedule of Options Outstanding
- ------------------------ ------------ ------------ ------------ ------------- ---------------- ---------------------------- Form of Date Date Exercise Aggregate Agreement Name Granted Expires Price ($) Amount Exhibit No. Vesting Schedule* - ------------------------ ------------ ------------ ------------ ------------- ---------------- ---------------------------- Larry Wilbur 02/09/99 02/09/04 1.6250 10,000 4.4.1 100% on 1/1/2000 Richard Battelle 05/11/98 02/29/00 1.00 16,190 4.4.1 100% on 08/31/99 Richard Battelle 05/11/98 02/29/00 3.00 8,571 4.4.1 100% on 08/31/99 James Cooper 05/01/99 05/01/04 1.375 9,788 4.4.1 Immediate James S. Parsons 01/04/99 01/04/04 1.3125 15,000 4.4.2 100% on 12/31/99 Blake Davenport 03/09/00 03/09/05 7.0000 50,000 4.4.2 Immediate Marcus Rowan 03/09/00 03/09/05 7.0000 75,000 4.4.2 Immediate James Gavin 03/09/00 03/09/05 6.2500 20,000 4.4.2 Immediate Richard Gray 01/12/98 01/12/01 1.0000 20,000 4.4.2 Immediate Bervin Hatton 01/12/98 01/12/01 1.0000 40,000 4.4.2 Immediate Jason Chautin 08/30/99 08/30/02 1.0000 7,500 4.4.2 Immediate Jason Chautin 08/30/99 08/30/02 3.8750 7,500 4.4.2 Immediate Thomas Cabe 09/23/98 09/23/01 2.8750 10,000 4.4.2 Immediate ------------- TOTAL 289,549 =============
EX-5 5 0005.txt EXHIBIT 5 EXHIBIT 5 OPINION OF THELEN REID & PRIEST LLP New York, New York June 15, 2000 Equidyne Corporation 238 Littleton Road Westford, MA 01886 Re: Registration Statement on Form S-8 ---------------------------------- Gentlemen: We have acted as counsel to Equidyne Corporation., a Delaware corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8 (the "Registration Statement") with respect to the registration under the Securities Act of 1933, as amended (the "Act") of (i) 600,000 shares of the Company's Common Stock, $.10 par value per share (the "Common Stock"), issuable upon the exercise of options (the "Nelson Options") granted under an Employment Agreement, dated December 1, 1999 between the Company and Joseph R. Nelson (the "Nelson Employment Agreement"), (ii) 100,000 shares of Common Stock issued to Thomas A. Slamecka (the "Slamecka Shares") pursuant to the terms of the Amended Employment Agreement between the Company and Thomas A. Slamecka, dated January 1, 1998 (the "Slamecka Employment Agreement"), (iii) 50,000 shares of Common Stock issued to Michael T. Pieniazek (the "Pieniazek Shares") pursuant to the terms of the Employment Agreement between the Company and Michael T. Pieniazek, dated January 1, 1998 (the "Pieniazek Employment Agreement") and (iv) 289,549 shares of the Company's Common Stock issued or issuable upon exercise of options (the "Other Employee Options") granted under certain Stock Option Agreements (the "Stock Option Agreements"). For purposes of this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement; (ii) the Certificate of Incorporation and By-Laws of the Company, as in effect on the date hereof; (iii) the Nelson Employment Agreement; (iv) the Slamecka Employment Agreement, (v) the Pieniazek Employment Agreement, (vi) the Stock Option Agreements, and (vii) the resolutions adopted by the Board of Directors of the Company relating to the foregoing and (viii) such other documents, certificates or other records as we have deemed necessary or appropriate. With respect to any documents or other corporate records we have examined, we have assumed the genuineness of all signatures on, and the authenticity of, all documents submitted to us as originals, and the conformity to the original documents submitted to us as certified or photostatic copies. Based upon the foregoing, and subject to the qualifications hereinafter expressed, we are of the opinion that: (1) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. (2) The shares of Common Stock included in the Registration Statement to be issued upon the exercise of the Nelson Options will be duly authorized, validly issued, fully paid and non-assessable when the Nelson Options shall have been properly exercised, and the exercise price shall have been paid for the Shares in accordance with the terms of the Nelson Employment Agreement. (3) The shares of Common Stock included in the Registration Statement that were issued to Thomas A. Slamecka pursuant to the grant of an award under the Slamecka Employment Agreement were duly authorized, validly issued, fully paid and non-assessable when the Slamecka Shares were issued in accordance with the terms of the Slamecka Employment Agreement. (4) The shares of Common Stock included in the Registration Statement that were issued to Michael T. Pieniazek pursuant to the grant of an award under the Pieniazek Employment Agreement were duly authorized, validly issued, fully paid and non-assessable when the Pieniazek Shares were issued in accordance with the terms of the Pieniazek Employment Agreement. (5) The shares of Common Stock included in the Registration Statement to be issued or that were issued upon the exercise of the Other Employee Options were when exercised, and will be duly authorized, validly issued, fully paid and non-assessable when the Other Employee Options were or are properly exercised, and the exercise price was paid and shall have been paid for the Shares in accordance with the terms of the Stock Option Agreements. We are members of the Bar of the State of New York and do not hold ourselves out as experts concerning, or qualified to render opinions with respect to, any laws other than the laws of the State of New York, the federal laws of the United States and the General Corporation Law of the State of Delaware. We hereby consent to the filing of this opinion with the Commission as Exhibit 5 to the Registration Statement. In giving the foregoing consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder. Very truly yours, /s/Thelen Reid & Priest LLP THELEN REID & PRIEST LLP EX-23 6 0006.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference herein of our report dated October 26, 1999, with respect to the consolidated financial statements of American Electromedics Corp. (now Equidyne Corporation) and Subsidiaries included in its Annual Report (Form 10KSB) for the year ended July 31, 1999, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Manchester, New Hampshire June 12, 2000 -----END PRIVACY-ENHANCED MESSAGE-----