<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 5, 1996
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
VECTOR AEROMOTIVE CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 33-0254334
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7601 CENTURION PARKWAY 32256
(Address of Principal Executive Offices) (Zip Code)
1988 NON-QUALIFIED STOCK OPTION PLAN
1990 NON-QUALIFIED STOCK OPTION PLAN
1992 NON-QUALIFIED STOCK OPTION PLAN
1993 DIRECTOR AND OFFICER WARRANT PLAN
(Full Titles of Plans)
D. PETER ROSE, PRESIDENT
7601 CENTURION PARKWAY
JACKSONVILLE, FLORIDA 32256
(Name and address of agent for service)
(904) 645-0505
(Telephone number, including area code, of agent for service)
Copy to:
T. MALCOLM GRAHAM, ESQ.
KIRSCHNER, MAIN, PETRIE, GRAHAM, TANNER & DEMONT
ONE INDEPENDENT DRIVE, SUITE 2000
JACKSONVILLE, FLORIDA 32202
(904) 354-4141
================================================================================
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering aggregate offering Amount of
to be registered registered(1) price per unit price registration fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,268,000 $.21875 $277,375 $95.65
=================================================================================================================
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by Vector Aeromotive
Corporation (the "Company") with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
1. Annual Report on Form 10-K for the fiscal year ended September
30, 1994;
2. Quarterly Report on Form 10-Q for the fiscal quarter ended
December 31, 1994;
3. Amendment to Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1994;
4. Current Report on Form 8-K dated January 6, 1995;
5. Current Report on Form 8-K dated January 31, 1995;
6. Form 10-C filed February 3, 1995;
7. Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 1995;
8. Amendment to Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1995;
9. Quarterly Report on Form 10-Q for the period ended June 30,
1995;
10. Quarterly Report on Form 10-Q for the period ended September
30, 1995;
11. Current Report on Form 8-K dated December 15, 1995; and
12. The description of the Company's common stock, par value $0.01
per share ("Common Stock"), contained in the Company's
Registration Statement No. 0-17303 filed pursuant to Section
12 of the Securities Exchange Act of 1934 (the "1934 Act") and
any amendment or report filed for the purpose of updating that
description.
2
<PAGE> 3
All documents filed by the Company pursuant to Sections 13(a), 13(c)
14 and 15(d) of the 1934 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 part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Section 78.751 of the Nevada General Corporation Law (the "NGCL")
provides that a corporation 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, suit or proceeding, whether civil, criminal, administrative or
investigative, except 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 by him in connection with the 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. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon plea of nolo contendere or its
equivalent, does not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and that, with respect to any
criminal action or proceeding, that he had reasonable cause to believe that his
conduct was unlawful.
Section 78.751 of the NGCL also provides that a corporation 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,
3
<PAGE> 4
employee, or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses, including amounts paid in settlement and
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 which he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have
been adjudged by a court of competent jurisdiction, after exhaustion of all
appeals therefrom, to be liable to the corporation or for amounts paid in
settlement to the corporation, unless and only to the extent that the court in
which such action or suit was brought or other court of competent jurisdiction
shall determine upon adjudication that, despite the adjudication of liability
that in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the court deems
proper.
Any such indemnification (unless ordered by a court) shall be made by
the corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances. Such determination shall be made:
(1) by the stockholders;
(2) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the act, suit
or proceeding;
(3) if a majority vote of a quorum consisting of directors who
were not parties to the act, suit or proceeding so orders, by
independent legal counsel in a written opinion; or
(4) if a quorum consisting of directors who were not parties to
the act, suit or proceeding cannot be obtained, by independent
legal counsel in a written opinion.
(b) Section 78.752 of the NGCL permits a Nevada corporation to
purchase and maintain insurance or make other financial arrangements on behalf
of any person who 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 any liability asserted against such
person and incurred by him in any such capacity, or arising out of his status
as such, whether or not the corporation has the authority to indemnify him
against such liability and expenses. In the absence of fraud, (i) the decision
of the board of directors as
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<PAGE> 5
to the propriety of the terms and conditions of any insurance or other
financial arrangement made pursuant to Section 78.752 and the choice of person
to provide the insurance or other financial arrangement is conclusive and (ii)
the insurance or other financial arrangement is not void or voidable and does
not subject any director to personal liability for his action, even if a
director approving the insurance or other financial arrangement is a
beneficiary of the insurance or other financial arrangement.
(c) Article Ten of the Company's Articles of Incorporation
provides that to the maximum extent permitted by law or by public policy,
directors of the Company are to have no personal liability for monetary damages
for breach of fiduciary duty as a director of the Company. Any mandate for
indemnification, whether by statute or order of court, is to be expressly
subject to the Company's reasonable capability of paying. No person will be
entitled to be reimbursed for expenses incurred in connection with a court
proceeding to obtain court ordered indemnification unless such person first
made reasonable application to the Company and the Company either unreasonably
denied such application or through no fault of the applicant was unable to
consider such application within a reasonable time. The Company may maintain
insurance, at its expense, to protect itself and any director, officer,
employee or agent of the Company or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability of loss,
whether or not the Company would have the power to indemnify such person
against such expense, liability or loss. The Company may, to the extent
authorized from time to time by the Board of Directors, grant rights to
indemnification and advancement of expenses to any agent of the Company to the
maximum extent permitted by law or public policy.
(d) The Company has purchased a directors' and officers' insurance
policy which provides coverage for certain liabilities that directors and
officers of the Company may incur in their capacity as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
No. Description
- --- -----------
*4.1 1988 Non-Qualified Stock Option Plan (incorporated by
reference to the Company's Registration Statement on Form S-18
(SEC File No. 33-20456-LA))
5
<PAGE> 6
*4.2 1990 Non-Qualified Stock Option Plan (incorporated by
reference to the Company's Registration Statement on Form S-1
(SEC File No. 33-35458))
*4.3 1992 Non-Qualified Stock Option Plan (incorporated by
reference to the Company's Annual Report on Form 10-K for the
year ended September 30, 1994)
4.4 Form of Warrant Agreement with respect to the 1993 Officer and
Director Warrant Plan
*4.5 Articles of Incorporation of Company (incorporated by
reference to the Company's Registration Statement on Form S-1
(S.E.C. File No. 33-31981))
*4.6 Form of Certificate of Amendment to Articles of Incorporation
of the Company (incorporated by reference to the Company's
Registration Statement on Form S-1 (SEC File No. 33-35458))
*4.7 Certificate of Amendment to Articles of Incorporation of the
Company effective April 13, 1995 (incorporated by reference to
the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995)
*4.8 By-laws of the Company, as amended and restated (incorporated
by reference to the Company's Registration Statement on Form
S-18 (SEC File No. 33-20456-LA))
5.1 Opinion of Kirschner, Main, Petrie, Graham, Tanner & Demont
23.1 Consent of BDO Seidman
23.2 Consent of Kirschner, Main, Petrie, Graham, Tanner & Demont
(included in Exhibit 5.1)
24.1 Power of Attorney (set forth on signature pages of this
Registration Statement)
*Incorporated by Reference 6
<PAGE> 7
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are beings made, a
post-effective amendment to this Registration Statement:
(1) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933 (the "1933 Act");
(2) 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; and
(3) to include any material information with respect to the plan
of distribution not previously included in the Registration
Statement or any material change to such information in the
Registration Statement.
(b) That, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities which remain unsold at the termination of the
offering.
(d) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d)
of the 1934 Act (and where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the 1934
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.
(e) Insofar as indemnification for liabilities under the 1933 Act may be
permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933 Act
and is, therefore,
7
<PAGE> 8
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification
by it is against public policy as expressed in the 1933 Act and will
be governed by the final adjudication of such issue.
8
<PAGE> 9
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 Jacksonville, State of Florida on January 5,
1996.
VECTOR AEROMOTIVE CORPORATION
By: /s/ D. Peter Rose
-------------------------
D. Peter Rose, President
Each person whose signature appears below constitutes and appoints D.
Peter Rose his or her lawful attorney-in-fact and agent, each acting alone,
with full power of substitution and resubstitution, for him or her and in his
or her name, place and stead, in any and all capacities, to sign any or all
Amendments (including, post-effective Amendments) to this Registration
Statement and to file the same, with all exhibits thereto, and other documents,
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, each acting alone, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or
his or her substitute or 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 DATE INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ D. Peter Rose Director; President January 5, 1996
- ------------------------ (Principal Executive
D. Peter Rose Officer and Principal
Financial Officer)
/s/ Richard J. Aprahamian Director January 5, 1996
- -------------------------
Richard J. Aprahamian
</TABLE>
9
<PAGE> 10
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Sudjaswin E.L. Director January 5, 1996
- ------------------------
Sudjaswin E.L.
/s/ Michael J. Kimberley Director January 5, 1996
- ------------------------
Michael J. Kimberley
/s/ George J. Fencl Director January 5, 1996
- ------------------------
George J. Fencl
/s/ Janna L. Connolly Chief Accountant January 5, 1996
- ------------------------ (Principal
Janna L. Connolly Accounting Officer)
</TABLE>
10
<PAGE> 1
Exhibit 4.4
WARRANT
FOR THE PURCHASE OF 32,500 COMMON SHARES
OF
VECTOR AEROMOTIVE CORPORATION
(A NEVADA CORPORATION)
THIS CERTIFIES THAT William Loper, as registered owner (the "Owner")
of this Warrant, is entitled at any time commencing on February 18, 1994, and
ending on November 18, 1998 (the "Expiration Date"), but not thereafter, to
subscribe for, purchase and receive 32,500 fully paid and nonassessable common
shares, $.01 par value (the "Shares"), of Vector Aeromotive Corporation (the
"Company"), at the price of $.21875 per Share (the "Exercise Price"), upon
presentation and surrender of this Warrant together with payment of the
Exercise Price for the Shares to be purchased to the Company at its principal
office; provided, however, that upon the occurrence of any of the events
specified in the Statement of Rights of Warrant Holder, attached hereto, the
rights granted by this Warrant shall be adjusted as specified therein.
Upon exercise of this Warrant, the form of Election to Purchase
hereinafter provided must be duly executed, the Exercise Price must be paid in
lawful money of the United States of America and in cash or check or bank
draft and the instructions for registration of the Shares acquired by such
exercise must be completed. If the rights represented hereby shall not be
exercised at or before 5:00 P.M., Pacific Daylight Time, on the Expiration
Date, this Warrant shall become and be void without further force or effect,
and all right represented hereby shall cease and expire.
Subject to the terms contained herein and in the Statement of Rights
of Warrant Holder, this Warrant may be assigned or exercised by the Owner in
whole or in part by execution by the Owner of the form of Assignment or Election
to Purchase, as appropriate, attached hereto. If the assignment is in whole,
the Company shall execute and deliver a new Warrant or Warrants of like tenor
to this Warrant to the appropriate assignee expressly evidencing the right to
purchase the aggregate number of Shares purchasable hereunder; and if the
assignment is in part, the Company shall execute and deliver to the appropriate
assignee a new Warrant or Warrants of like tenor expressly evidencing the right
to purchase the portion of the aggregate number of Shares as shall be
contemplated by any such assignment, and shall concurrently execute and deliver
to the Owner a new Warrant of like tenor evidencing the right to purchase the
remaining portion of Shares purchasable hereunder which have not been
transferred to the assignee. In the event this Warrant is exercised in part
only, the Company shall cause to be delivered to the Owner a new Warrant of
like tenor evidencing the right of the Owner to purchase the number of Shares
purchasable hereunder as to which this Warrant has not been exercised.
Neither this Warrant nor the Common Shares issuable on exercise of
this Warrant have been registered under state or federal securities laws. In
no event shall this Warrant (or the Shares issuable upon full or partial
exercise hereof) be offered or sold except in conformity with all applicable
state and federal securities laws.
The Company may deem and treat the registered Owner hereof as the
absolute owner of this Warrant certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone) for all purposes. The
Warrant Holder, as such, shall not have any rights of a shareholder of the
Company, either at law or at equity, and the rights of the Warrant Holder, as
such, are limited to those rights expressly provided in this Warrant
Certificate and in the Statement of Rights of Warrant Holder.
<PAGE> 2
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officers.
VECTOR AEROMOTIVE CORPORATION
/s/ Donald Johnson By: Robert Braner
- ------------------------------------ ---------------------------------
Secretary Vice President
(S E A L)
-2-
<PAGE> 3
STATEMENT OF RIGHTS OF WARRANT HOLDER
(a) In the event, prior to the expiration of the Warrant by
exercise or by its terms, the Company shall issue any of its Common Shares as a
stock dividend or shall subdivide the number of outstanding Common Shares into
a greater number of shares, then, in either of such events, the then-applicable
Exercise Price per Common Share purchasable pursuant to the Warrent in effect
at the time of such action shall be reduced proportionately and the number
of Common Shares purchasable pursuant to the Warrant shall be increased
proportionately. Conversely, in the event the Company shall reduce the
number of its outstanding Common Shares by combining such shares into a
smaller number of shares, then, in such event, the then-applicable Exercise
Price per Common Share purchasable pursuant to the Warrant in effect at
the time of such action shall be increased proportionately and the number
of Common Shares at that time purchasable pursuant to the Warrant shall be
decreased proportionately. Any dividend paid or distributed on the Common
Shares in shares of any other class of the Company or securities convertible
into Common Shares shall be treated as a dividend paid in Common Shares
to the extent Common Shares are issuable on the payment or conversion
thereof.
(b) In the event, prior to the expiration of the Warrant by
exercise or by its terms, the Company shall be recapitalized by reclassifying
its outstanding Common Shares into shares with a different par value, or by
changing its outstanding Common Shares to shares without par value or in the
event of any other material change of the capital structure of the Company or
of any successor corporation by reason of any reclassification,
recapitalization or conveyance, prompt, proportionate, equitable, lawful and
adequate provision shall be made whereby any holder of the Warrant shall
thereafter have the right to purchase, on the basis and the terms and
conditions specified in this Agreement, in lieu of the Common Shares of the
Company theretofore purchasable on the exercise of any Warrant, such securities
or assets as may be issued or payable with respect to or in exchange for the
number of Common Shares of the Company theretofore purchasable on exercise of
the Warrants had such reclassification, recapitalization or conveyance not
taken place; and in any such event, the rights of any holder of a Warrant to
any adjustment in the number of Common Shares purchasable on exercise of such
Warrant, as set forth above, shall continue and be preserved in respect of any
stock, securities or assets which the holder becomes entitled to purchase.
(c) In the event the Company, at any time while the Warrant shall
remain unexpired and unexercised, shall sell all or substantially all of its
property, or dissolves, liquidates or winds up its affairs, prompt,
proportionate, equitable, lawful and adequate provision shall be made as part
of the terms of such sale, dissolution, liquidation or winding up such that the
holder of a Warrant may thereafter receive, on exercise thereof, in lieu of
each Common Share of the Company which he would have been entitled to receive,
the same kind and amount of any stock, securities or assets as may be issuable,
distributable or payable on any such sale, dissolution, liquidation or winding
up with respect to each Common Share of the Company; provided, however, that in
the event of any such sale, dissolution, liquidation or winding up, the right
to exercise the Warrants shall terminate on a date fixed by the Company, such
date to be not earlier than 5:00 P.M., Pacific Time, on the 30th day next
succeeding the date on which notice of such termination of the right to
exercise the Warrant has been given by mail to the holder thereof at such
address as may appear on the books of the Company.
(d) On exercise of the Warrant by the holder, the Company shall not
be required to deliver fractions of Common Shares; provided, however, that
prompt, proportionate, equitable, lawful and adequate adjustment in the Exercise
Price payable shall be made in respect of any such fraction of one Common Share
on the basis of the applicable Exercise Price per share.
<PAGE> 4
(e) In the event, prior to expiration of the Warrant by exercise or by
its terms, the Company shall determine to take a record of the holders of its
Common Shares for the purpose of determining shareholders entitled to receive
any stock dividend, distribution or other right which will cause any change or
adjustment in the number, amount, price or nature of the Common Shares or other
stock, securities or assets deliverable on exercise of the Warrant pursuant to
the foregoing provisions, the Company shall give to the Registered Holder of
the Warrant at the address as may appear on the books of the Company at least
30 days' prior written notice to the effect that it intends to take such a
record. Such notice shall specify the date as of which such record is to be
taken; the purpose for which such record is to be taken; and the number,
amount, price and nature of the Common Shares or other stock, securities or
assets which will be deliverable on exercise of the Warrant after the action
for which such record will be taken has been completed. Without limiting the
obligation of the Company to provide notice to the Registered Holder of the
Warrant Certificate of any corporate action hereunder, the failure of the
Company to give notice shall not invalidate such corporate action of the
Company.
(f) The Warrant shall not entitle the holder thereof to any of the
rights of shareholders or to any dividend declared on the Common Shares unless
the Warrant is exercised and the Common Shares purchased prior to the record
date fixed by the Board of Directors of the Company for the determination of
holders of Common Shares entitled to such dividend or other right.
(g) No adjustment of the Exercise Price or the number of Common Shares
which may be issued upon the exercise of this Warrant shall be made except as
expressly required by paragraphs (a), (b) and (c) of this Statement of Rights
of Warrant Holder.
(h) During the Exercise Period of the Warrant, and if, without any
obligation to do so, the Company proposes to register any of its Common Shares
under the Securities Act of 1933, as amended (the "Securities Act"), in
connection with the public offering of such Common Shares for cash proceeds
payable in whole or in part to the Company (other than with respect to a
Registration Statement filed on Form S-8 or Form S-4 or other inappropriate
form then in effect under the Securities Act), the Company shall, at such time,
promptly give the Owner written notice of such registration (at the address of
the Owner appearing in the Company's records). Upon the written request of the
Owner given within 20 days after the giving of such notice by the Company, the
Company shall cause to be registered under the Securities Act all of the Common
Shares as to which the Warrant has been exercised that such Owner has requested
to be registered; provided, however, if the managing underwriter of the public
offering of shares proposed to be registered by the Company advises the Owner
in writing that marketing factors require a limitation of the number of shares
to be underwritten, then the number of Common Shares as to which the Owner may
exercise the Warrant and which are to be registered and included in the
underwriting shall be limited in accordance with the underwriter's request on a
pro rata basis. The Owner and the Company shall enter into agreements, at the
time of registration of any of the Common Shares issuable upon exercise of the
Warrant, providing for indemnification and contribution rights as set forth
below.
(i) To the extent permitted by law, the Company will indemnify and
hold harmless each Owner, the officers and directors of each Owner, any
underwriter (as defined in the Securities Act) for such holder, and each
person, if any, who controls such Owner or underwriter within the meaning of
the Securities Act or the Securities Exchange Act of 1934 (the "Exchange
Act"), against any losses, claims, damages, or liabilities (joint or several)
to which they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise out of or are based upon the
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or
-2-
<PAGE> 5
final prospectus contained therein or any amendments or supplements thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company will reimburse each such
Owner, officer or director, underwriter or controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this section shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonable withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such registration
statement, preliminary prospectus or final prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by any such
Owner, underwriter or controlling person; and
(ii) To the extent permitted by law, each Owner will indemnify and
hold harmless the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls the
Company within the meaning of the Securities Act, any underwriter and any
other Owner selling securities in such registration statement or any of its
directors or officers or any person who controls such Owner or underwriter,
against any losses, claims, damages or liabilities (joint or several) to which
the Company or any such director, officer controlling person, or underwriter or
controlling person, or other such Owner or director, officer or controlling
person may become subject, under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities
(or actions in respect hereto) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, incuding any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, if the untrue statement or omission or alleged untrue statement
or omission in respect of which such loss, claim, damage or liability is
asserted was made in reliance upon and in conformity with written information
furnished by such Owner expressly for use in connection with such registration;
and each such Owner will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person,
underwriter or controlling person, or other Owner, officer, director, or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this section shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Owner (which consent shall
not be unreasonably withheld); provided, further that the maximum liability of
any selling Owner under this section in regard to any registration statement
shall in no event exceed the amount of the proceeds received by such selling
Owner from the sale of securities under such registration statement; provided,
further, however, that if any losses, claims, damages or liabilities arise out
of or are based upon an untrue statement, alleged untrue statement, omission or
alleged omission contained in any preliminary prospectus which did not appear
in the final prospectus, such seller shall not have any such liability with
respect thereto to the Company, any person who controls the Company within the
meaning of the Securities Act, any officer of the Company who signed the
registration statement or any director of the Company, if the Company delivered
a copy of the preliminary prospectus to the person alleging such losses,
claims, damages or liabilities and failed to deliver a copy of the final
prospectus, as amended or supplemented if it has not been amended or
supplemented, to such person at or prior to the written confirmation of the
sale to such person, provided that the Company had an obligation to deliver a
copy of the final prospectus to such person.
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<PAGE> 6
(iii) Promptly after reciept by an indemnified party under this
Section (h) of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section (h),
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly notified, to assume the defense thereof with counsel mutually
satisfactory to the parties. An indemnified party shall have the right to
retain its own counsel, however, but the fees and expenses of such counsel
shall be at the expense of the indemnified party, unless (i) the employment of
such counsel has been specifically authorized in writing by the indemnifying
party, (ii) the indemnifying party has failed to assume the defense and employ
counsel, or (iii) the named parties to any such action (including any impleaded
parties) include both the indemnified party and the indemnifying party, and the
indemnified party shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or in addition
to those available to the indemnifying party (in which case the indemnifying
party shall not have the right to assume the defense of such action on behlaf
of such indemnified party, it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys for all
indemnified parties). The failure to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party under this Agreement.
(iv) If the indemnification provided for in this Section (h) is
unavailable or insufficient to hold harmless an indemnified party in respect of
any losses, claims, damages or liabilities or actions in respect thereof
referred to therein, then each indemnifying party shall in lieu of indemnifying
such indemnified party contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
actions in such proportion as is appropriate to reflect the relative fault of
the Company, on the one hand, and selling Owners, on the other, in connection
with the statements or omissions which resulted in such losses, claims,
damages, liabilities or actions as well as any other relevant equitable
considerations, including the failure to give any required notice. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company, on the one hand, or such selling Owners on the other, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto acknowledge
and agree that it would not be just and equitable if contribution pursuant to
this subparagraph (iv) were determined by pro rata allocation (even if all of
the selling Owners were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subparagraph (iv). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities or actions in respect hereof referred to above in this subparagraph
(iv) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this subparagraph
(iv), the amount the selling Owners shall be required to contribute shall not
exceed the amount, if any, by which the total price at which the securities
sold by each of them were offered to the public exceeds the amount of any
damages which they have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission, or other
violation of law. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of fraudulent
misrepresentation.
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<PAGE> 7
Form to be used to exercise Warrant:
ELECTION TO PURCHASE
The undersigned hereby elects irrevocably to exercise the within
Warrant and to purchase ____________ Common Shares of Vector Aeromotive
Corporation, and hereby makes payment of $ __________ (at the rate of $.21875
per share) in payment of the Exercise Price pursuant hereto. Please issue the
shares as to which this Warrant is exercised in accordance with the
instructions given below.
Dated:___________, 19__
Signature:______________________________
Signature Guaranteed:___________________
INSTRUCTIONS FOR REGISTRATION OF SHARES
Name____________________________________________________________________________
(Print in Block Letters)
Address_________________________________________________________________________
...............................................
Form to be used to assign Warrant:
ASSIGNMENT
FOR VALUE RECEIVED,_________________________ does hereby sell, assign
and transfer unto _______________________ the right to purchase
___________________ Common Shares of Vector Aeromotive Corporation, evidenced
by the within Warrant, and does hereby irrevocably constitute and appoint
___________________ attorney to transfer such right on the books of Vector
Aeromotive Corporation with full power of substitution in the premises.
Dated: _____________, 199_.
Signature:__________________________
Signature Guaranteed: ______________
* * * * * * * * * *
NOTICE: The signature to the Election to Purchase or Assignment must
correspond with the name as written upon the face of the within Warrant in
every particular without alteration or enlargement or any change whatsoever,
and must be guaranteed by a bank, other than a savings bank, or by a trust
company or by a firm having membership on a registered national securities
exchange.
-5-
<PAGE> 1
Exhibit 5.1
[LETTERHEAD]
KIRSCHNER, MAIN, PETRIE, GRAHAM, TANNER & DEMONT
PROFESSIONAL ASSOCIATION
ATTORNEYS AT LAW
ONE INDEPENDENT DRIVE, SUITE 2000
JACKSONVILLE, FLORIDA 32202
---------
MAILING ADRESS:
POST OFFICE BOX 1559
TELEPHONE (904)354-4141 FACSIMILE (904) 358-2199
December 28, 1995
Vector Aeromotive Corporation
7601 Centurion Parkway South
Jacksonville, Florida 32256
Re: Vector Aeromotive Corporation/Registration
Statement on Form S-8
------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Vector Aeromotive Corporation (the
"Company"), in connection with the preparation and filing by the Company with
the Securities and Exchange Commission (the "Commission") on December 28,
1995, of a Registration Statement on Form S-8 (the "Registration Statement"),
under the Securities Act of 1933, as amended, relating to the proposed issuance
of up to 1,268,000 shares of common stock, $.01 par value, of the Company (the
"Common Stock").
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement and
such corporate records, agreements, documents and other instruments, such
certificates or comparable documents of public officials and of
officers and representatives of the Company, and have made such inquiries of
such officers and representatives, as we have deemed relevant and necessary as
a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents. As to
all questions of fact material to this opinion that have not been independently
established, we have relied upon certificates or comparable documents of
officers of the Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that the 1,268,000 shares of Common Stock have
been duly authorized and, when issued and sold against payment therefor, will
be validly issued, fully paid and non-assessable.
We hereby consent to the inclusion and filing of this opinion.
<PAGE> 2
Vector Aeromotive Corporation
December 28, 1995
as Exhibit 5.1 to the Registration Statement.
The opinion herein is limited to the corporate laws of the State of
Nevada and the federal laws of the United States, and we express no opinion as
to the effect on the matters covered by this opinion of the laws of any other
jurisdiction.
This opinion is rendered solely for your benefit in connection with the
transactions described above. This opinion may not be used or relied upon by
any other person and, except as expressly provided herein, may not be
disclosed, quoted, filed with a governmental agency or otherwise referred to
without our prior written consent.
Very truly yours,
KIRSCHNER, MAIN, PETRIE, GRAHAM,
TANNER & DEMONT
By /s/ T. Malcolm Graham
-------------------------------
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Vector Aeromotive Corporation
Jacksonville, Florida
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated December
21, 1994 relating to the financial statements of Vector Aeromotive Corporation
appearing in the Company's Annual Report on form 10K for the year ended
September 30, 1994.
We also consent to the reference to us under the caption "Experts" in
the Prospectus.
/s/ BDO Seidman, LLP
--------------------
BDO Seidman, LLP
Orlando, Florida
December 12, 1995
