- --------------------------------------------------------------------------------
As Filed With the Securities and Exchange Commission on December 28, 1999
Registration No.:
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN ELECTROMEDICS CORP.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE
- --------------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
04-2608713
- --------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
13 COLUMBIA DRIVE, SUITE 5, AMHERST, NEW HAMPSHIRE 03031
- --------------------------------------------------------------------------------
(Address of principal executive offices)
VARIOUS STOCK OPTION AGREEMENTS
- --------------------------------------------------------------------------------
(Full title of the plans)
MICHAEL T. PIENIAZEK
PRESIDENT AND CHIEF FINANCIAL OFFICER
13 COLUMBIA DRIVE, SUITE 5
AMHERST, NEW HAMPSHIRE 03031
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(603) 880-6300
- --------------------------------------------------------------------------------
Telephone number, including area code, of agent for service
Copy to:
Bruce A. Rich, Esq.
THELEN REID & PRIEST LLP
40 West 57th Street
New York, New York 10019
<TABLE>
<CAPTION>
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 (1) SHARE (2) PRICE (2) REGISTRATION FEE
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, Par Value
$.10 2,665,619 shares $1.56 $4,158,365.64 $1,097.81
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
</TABLE>
(1) The number of shares stated is 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 exhibits hereto.
(2) Computed in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the total registration fee. Such
computation is based on the weighted average exercise price of $1.56
per share covering outstanding options under the Stock Option
Agreements.
<PAGE>
AMERICAN ELECTROMEDICS CORP.
PART I
ITEM 1. PLAN INFORMATION.
Not Applicable.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN INFORMATION.
Not Applicable.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
1. The following documents, which have been filed by the Company with the
Securities and Exchange Commission (the "Commission"), pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act"), are incorporated by
reference into this Registration Statement:
(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 quarter
ended October 31, 1999 (Commission File No. 0-9922);
(c) The Company's Current Report on Form 8-K dated December 2, 1999
(Commission File No. 0-9922);
(d) The Company's Notice of Annual Meeting of Stockholders and Proxy
Statement for its Annual Meeting of Stockholders, dated December 2, 1999,
filed pursuant to Section 14 of the Exchange Act (Commission File No.
0-9922); and
(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).
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 which 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 such 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 offered hereby will be passed upon for the
Company by Thelen Reid & Priest LLP, the Company's Counsel.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS
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* Form of Stock Option Agreement
4.3.2* Form of Stock Option Agreement
4.3.3* Schedule of Options Granted under Stock Option
Agreements
II-2
<PAGE>
5* Opinion of Thelen Reid & Priest LLP.
23.1* Consent of Ernst & Young LLP
23.3 Consent of Thelen Reid & Priest LLP (included in
Exhibit 5).
24 Power of Attorney(included on page II-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,
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
II-3
<PAGE>
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-4
<PAGE>
SIGNATURES
THE COMPANY.
Pursuant to the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the Company 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 Amherst, New Hampshire, on the 28th
day of December, 1999.
AMERICAN ELECTROMEDICS CORP.
By: /s/ Thomas A. Slamecka
-------------------------------
Thomas A. Slamecka
Chairman of the Board
(Principal Executive Officer)
POWER OF ATTORNEY
Each director and/or officer of the Company whose signature appears
below hereby appoints Michael T. Pieniazek as his attorney-in-fact to sign in
his name and behalf, in any and all capacities stated below and to file with the
Commission any and all amendments, including post-effective amendments, to this
Registration Statement.
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 December 28, 1999
- ----------------------------
Thomas A. Slamecka
/s/ Michael T. Pieniazek Director and Chief December 28, 1999
- ---------------------------- Financial Officer
Michael T. Pieniazek
/s/ Jim Fukushima Director December 28, 1999
- ----------------------------
Jim Fukushima
/s/ Blake C. Davenport Director December 28, 1999
- ----------------------------
Blake C. Davenport
/s/ Andy Rosch Director December 28, 1999
- ----------------------------
Andy Rosch
/s/ Marcus R. Rowan Director December 28, 1999
- ----------------------------
Marcus R. Rowan
II-5
<PAGE>
INDEX TO EXHIBITS
AMERICAN ELECTROMEDICS CORP.
----------------------------
- -----------------------------------------------------------------------------
Sequentially
Exhibit Numbered
No. Description Page
----- ----------- ----------
- -----------------------------------------------------------------------------
4.3.1 Form of Stock Option Agreement III-2
- -----------------------------------------------------------------------------
4.3.2 Form of Stock Option Agreement III-10
- -----------------------------------------------------------------------------
4.3.3 Schedule of Options Granted under Stock
Option Agreements III-17
- -----------------------------------------------------------------------------
5 Opinion of Thelen Reid & Priest LLP III-18
- -----------------------------------------------------------------------------
23.1 Consent of Ernst & Young LLP III-20
- -----------------------------------------------------------------------------
EXHIBIT 4.3.1
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)
<PAGE>
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:
-----------------------------------
-----------------------------------
EXHIBIT 4.3.2
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. 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
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)
<PAGE>
Exercise of Option
To Purchase Shares
------------------
To: AMERICAN ELECTROMEDICS CORP.
The undersigned hereby exercises the within Option for the purchase of
shares (the "Shares") of American Electromedics Corp. 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
EXHIBIT 4.3.3
- -------------------------------------------------
AMERICAN ELECTROMEDICS CORP.
Schedule of Options Outstanding
- -------------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------- ------------ ------------ ------------ ------------- ---------------- ----------------------------
Separate Form of
Date Date Exercise B.O.D. Agreement
Name Granted Expires Price ($) Agreement Exhibit No. Vesting Schedule*
- -------------------------------- ------------ ------------ ------------ ------------- ---------------- ----------------------------
<S> <C> <C> <C> <C> <C> <C>
Michael T. Pieniazek 01/12/98 01/12/03 1.0000 125,000 4.3.1 (I)-75,000 (M)-50,000-7
mos.
Thomas Slamecka 01/12/98 01/12/03 1.0000 100,000 4.3.1 (I)-53,125, (M)-46,875-4
mos.
Marcus R. Rowan 01/12/98 01/12/01 1.0000 300,000 4.3.2 (I)
Blake C. Davenport 01/12/98 01/12/01 1.0000 50,000 4.3.2 (I)
Dov Berkowitz 01/12/98 01/12/01 1.0000 40,000 4.3.2 (I)
Michael T. Pieniazek 02/19/98 02/19/03 1.0000 65,000 4.3.1 (I)
Thomas Slamecka 02/19/98 02/19/03 1.0000 93,000 4.3.1 (I)
Henry Rhodes 05/01/98 05/01/03 1.0000 100,000 4.3.1 3/31/00
Henry Rhodes 05/01/98 05/01/03 3.0000 100,000 4.3.1 100% upon sale of Dynamic
Dental Systems Inc.
Michael T. Pieniazek 05/05/98 05/05/03 4.0000 48,750 4.3.1 (I)
Thomas Slamecka 05/05/98 05/05/03 4.0000 69,750 4.3.1 (I)
Michael T. Pieniazek 05/12/98 05/12/03 4.3750 39,000 4.3.1 (I)
Thomas Slamecka 05/12/98 05/12/03 4.3750 55,800 4.3.1 (I)
Thomas Slamecka 12/15/98 12/15/03 2.2500 54,854 4.3.1 (I)
Thomas Slamecka 03/26/99 03/26/04 1.4400 9,225 4.3.1 (I)
Thomas Slamecka 04/27/99 04/27/04 1.1300 12,573 4.3.1 (I)
Thomas Slamecka 07/06/99 07/06/04 1.1300 8,324 4.3.1 (I)
Thomas Slamecka 07/08/99 07/08/04 1.4100 11,344 4.3.1 (I)
Thomas Slamecka 07/12/99 07/12/04 1.7800 28,063 4.3.1 (I)
Thomas Slamecka 07/07/99 07/07/04 1.2500 10,661 4.3.1 (I)
Thomas Slamecka 07/12/99 07/12/04 1.7800 22,741 4.3.1 (I)
Thomas Slamecka 08/08/99 06/08/04 1.9400 6,730 4.3.1 (I)
Thomas Slamecka 04/15/99 04/15/04 1.1900 46,500 4.3.1 (I)
Thomas Slamecka 04/20/99 04/20/04 1.0000 8,370 4.3.1 (I)
Thomas Slamecka 04/23/99 04/23/04 0.9400 18,600 4.3.1 (I)
Michael T. Pieniazek 12/15/98 12/15/03 2.2500 38,339 4.3.1 (I)
Michael T. Pieniazek 03/26/99 03/26/04 1.4400 6,448 4.3.1 (I)
Michael T. Pieniazek 04/27/99 04/27/04 1.1300 8,787 4.3.1 (I)
Michael T. Pieniazek 07/06/99 07/06/04 1.1300 5,818 4.3.1 (I)
Michael T. Pieniazek 07/08/99 07/08/04 1.4100 7,929 4.3.1 (I)
Michael T. Pieniazek 07/12/99 07/12/04 1.7800 19,614 4.3.1 (I)
Michael T. Pieniazek 07/07/99 07/07/04 1.2500 7,451 4.3.1 (I)
Michael T. Pieniazek 07/12/99 07/12/04 1.7800 15,894 4.3.1 (I)
Michael T. Pieniazek 06/08/99 06/08/04 1.9400 4,704 4.3.1 (I)
Michael T. Pieniazek 04/15/99 04/15/04 1.1900 32,500 4.3.1 (I)
Michael T. Pieniazek 04/20/99 04/20/04 1.0000 5,850 4.3.1 (I)
Michael T. Pieniazek 04/23/99 04/23/04 0.9400 13,000 4.3.1 (I)
Matthew Slepian 12/30/98 12/30/03 1.0000 100,000 4.3.1 (I)-10,000, (M)-90,000-11
mos.
James Cooper 05/01/99 05/01/04 1.3750 150,000 4.3.1 (I)-100,000, (M)-50,000-36
mos.
Frank Ferguson 01/01/99 01/01/04 1.3100 75,000 4.3.1 (I)-10,000, (M)-65,000-12
mos.
Marcus R. Rowan 08/16/99 08/16/04 1.2500 50,000 4.3.2 100% on 2/16/00
Blake C. Davenport 08/16/99 08/16/04 1.2500 50,000 4.3.2 100% on 2/16/00
Michael T. Pieniazek 08/16/99 08/16/04 1.2500 50,000 4.3.1 100% on 2/16/00
Jim Fukushima 09/17/99 09/17/04 1.0900 50,000 4.3.2 100% on 3/17/00
Jim Fukushima 10/15/99 10/15/04 1.9000 200,000 4.3.2 100% on 4/15/00
Frank Ferguson 08/16/99 08/16/04 1.0000 25,000 4.3.1 100% on 1/1/00
Cristoph Von Zur Gathen 08/16/99 08/16/04 1.2500 25,000 4.3.1 100% on 2/16/00
Thomas Slamecka 08/16/99 08/16/04 1.2500 250,000 4.3.1 100% on 2/16/00
Andy Rosch 08/16/99 08/16/04 1.2500 50,000 4.3.1 100% on 2/16/00
-------------
TOTAL 2,665,619
=============
</TABLE>
*- (I) Immediate, (M)- Ratably over the number of months shown above.
EXHIBIT 5
OPINION OF THELEN REID & PRIEST LLP
New York, New York
December 28, 1999
American Electromedics Corp.
13 Columbia Drive, Suite 5
Amherst, New Hampshire 03031
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have acted as counsel to American Electromedics Corp., 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
2,665,619 shares of the Company's Common Stock, $.10 par value per share (the
"Common Stock"), issuable upon the exercise of options (the "Options") granted
under certain Stock Option Agreements (the "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 Agreements; (iv) the resolutions adopted
by the Board of Directors of the Company relating to the foregoing and (v) 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 Options will be duly authorized, validly
issued, fully paid and non-assessable when the Options shall have been
properly exercised, and the exercise price shall have been paid for the
Shares in accordance with the terms of the 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
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. 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
December 27, 1999
