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.
<Table>
<Caption>
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).*
</Table>
3
<Table>
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.
</Table>
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.
<Table>
<Caption>
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
</Table>
6
<Table>
/s/ Harry P. Yergey Director September 8, 2003
- ---------------------------------
Harry P. Yergey
</Table>
7
INDEX TO EXHIBITS
EQUIDYNE CORPORATION
<Table>
<Caption>
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
</Table>
<Table>
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).
</Table>
* Incorporated by reference.
STATEMENT OF DIFFERENCES
------------------------
The trademark symbol shall be expressed as ............................'TM'