As filed with the Securities and Exchange Commission on June 21, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
ROTARY POWER INTERNATIONAL, INC.
(Exact name of Registrant as specified in its charter)
Delaware 13-3632860
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
P.O. Box 128
Wood-Ridge, New Jersey 07075-0128
(Address of principal executive offices, including zip code)
CONSULTING AGREEMENT
DATED AS OF JUNE 12, 1996
WITH MARK WACHS
(Full title of the plan)
RICHARD M.H. THOMPSON
President
ROTARY POWER INTERNATIONAL, INC.
P.O. Box 128
Wood-Ridge, New Jersey 07075-0128
(201) 777-7373
(Name, address and telephone number, including area code, of agent for service)
----------------
Copy to:
JOHN T. KELLY, ESQ.
WILENTZ, GOLDMAN & SPITZER, P.A.
90 Woodbridge Center Drive
Woodbridge, New Jersey 07095
----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Title of securities Amount to be Proposed Maximum Proposed maximum Amount of
to be Registered Registered offering price per aggregate offering registration fee
share price
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 250,000 shares $2.50 $625,000 $215.52
================================================================================================================================
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Rotary Power International, Inc. (the
"Registrant") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference in this Registration
Statement:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1995, which contains audited financial statements for the most
recent year for which such statements have been filed;
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year covered by the
Annual Report referred to in (a) above; and
(c) The description of the Registrant's common stock, $.01 par value
per share (the "Common Stock"), contained in the Registration Statement on Form
8-A (Registration No. 0-22894) filed with the Commission on January 18, 1994
under Section 12 of the Exchange Act, including any amendments or reports filed
for the purpose of updating such description.
All documents and reports filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date hereof and prior
to the filing of a post-effective amendment to the Registration Statement which
indicates that all securities offered hereby have been sold, or which
deregisters all such securities then remaining unsold, shall also be deemed to
be incorporated by reference into this Registration Statement and to be part
hereof commencing on the respective dates on which such documents are filed.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
2
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 8 of the Certificate of Incorporation of the Registrant
provides that no member of the Board of Directors of the Registrant shall be
liable to the Registrant or its stockholders for monetary damages for breach of
his fiduciary duty as a director, except for (i) breaches of the director's duty
of loyalty to the Registrant, (ii) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) liability
under Section 174 of the General Corporation Law of the State of Delaware, or
(iv) transactions from which the director derived an improper personal benefit.
If the General Corporation Law of the State of Delaware is amended to authorize
corporate action further eliminating or limiting the liability of directors,
then the liability of the directors of the Registrant shall automatically be
eliminated or limited to the fullest extent permitted under the General
Corporation Law of the State of Delaware, as so amended.
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation 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 entity. Section 145(a) permissive indemnity may provide indemnification
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding provided that 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. Section 145(b) of the
Delaware General Corporation Law empowers a Delaware corporation to indemnify
any person described in Section 145(a) in an action by or in the right of the
corporation provided that he satisfies the conditions set forth in section
145(a), except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudicated to be liable
to the corporation unless and only to the extent that the Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for proper expenses. To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits or otherwise in the
defense of any action referred to in sections 145(a) and (b), the corporation
shall indemnify him against the expenses (including attorneys' fees) which he
actually and reasonably incurred in connection therewith. The indemnification
provided pursuant to section 145 is not deemed to be exclusive of any other
rights to which those seeking indemnification may be entitled under any by-law,
agreement, vote, or otherwise.
Item 7. Exemption from Registration Claimed.
Not Applicable.
3
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
- ------ -----------
4.1 Consulting Agreement dated as of June 12, 1996, between the
Registrant and Mark Wachs
4.2 Non-Transferable Warrant to Purchase 250,000 Shares of Common
Stock of Rotary Power International, Inc.
5 Opinion of Wilentz, Goldman & Spitzer, P.A. regarding
legality of the Common Stock being registered
23.1 Consent of Wilentz, Goldman & Spitzer, P.A. (included in
Exhibit 5)
23.2 Consent of Coopers & Lybrand, L.L.P.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) 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 end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
4
<PAGE>
(2) 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.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in this 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 hereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions of Item 6, or otherwise, the Registrant
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 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 whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Wood-Ridge, State of New Jersey, on June 21,
1996.
ROTARY POWER INTERNATIONAL, INC.
By: /s/ Richard M.H. Thompson
-------------------------
Richard M.H. Thompson
Director, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on June 21, 1996.
Signature Title
--------- -----
/s/ Richard M.H. Thompson Director, President and Chief
- ------------------------- Executive Officer
Richard M.H. Thompson (Principal Executive Officer)
/s/ Gerald Horowitz Vice President and Corporate Controller
- ------------------------- (Principal Financial and Accounting Officer)
Gerald Horowitz
/s/ Robert L. Osborn Director
- -------------------------
Robert L. Osborn
/s/ Warren D. Bagatelle Director
- -------------------------
Warren D. Bagatelle
/s/ Dr. James P. Wade Director
- -------------------------
Dr. James P. Wade
6
<PAGE>
/s/ William T. Figart Director
- -------------------------
William T. Figart
/s/ James M. Beggs Director
- -------------------------
James M. Beggs
/s/ Kenneth Brody Director
- -------------------------
Kenneth Brody
/s/ Michael C. Stewart Director
- -------------------------
Michael C. Stewart
7
<PAGE>
EXHIBIT 4.1
Consulting Agreement Dated as of June 12, 1996,
Between the Registrant and Mark Wachs
<PAGE>
CONSULTING AGREEMENT
--------------------
CONSULTING AGREEMENT made and entered into as of the 12th day of June,
1996 by and between Rotary Power International, Inc. with offices at 1 Passaic
Avenue, Wood-Ridge, New Jersey 07075 (the "Company") and Mark Wachs with an
office at 101 Jericho Turnpike, Jericho, New York 11753 (the "Consultant").
W I T N E S S E T H:
WHEREAS, the Company has been seeking special assistance from
consultants in the field of marketing, sales promotion and specialty products to
improve its marketing methods and find expansion opportunities in addition to
that which the Company's management is capable of providing; and
WHEREAS, for a period of approximately five years the
Consultant has been actively engaged in providing to the managements of various
commercial enterprises information related to new products, marketing, and
business strategies; and
WHEREAS, the Company desires to engage the Consultant as a
consultant to the Company for a one (1) year period to provide the Company with
advice with respect to, marketing strategies, investor relations, new products
and customers for the Company and other business-related matters; and
WHEREAS, the Consultant is prepared to render services to the
Company as a consultant, in accordance with the terms and conditions set forth
herein; and
WHEREAS, the Consultant and representatives of the Company met
and had extensive discussions concerning the terms of this Consulting Agreement
pursuant to which the parties agreed orally to the terms incorporated herein and
in reliance upon the oral agreement, the Consultant proceeded to commence
performance prior to the memorialization of said oral agreement in writing as
contained herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Terms and Duties
(a) The Company hereby engages the Consultant for a period of
one (1) year commencing as of June 12, 1996 (the "Term") and the Consultant
hereby accepts such engagement, all subject to the terms hereof, and the
Consultant agrees to provide the following advisory services to the Company at
such times and to such extent as the Company shall deem reasonably necessary or
appropriate:
1
<PAGE>
(i) assist and advise the Company in providing information
about the Company and its business to present and prospective shareholders and
an expanded group of U.S. and foreign members of the investment and money
management community;
(ii) responding to the media on Company policies and
activities;
(iii) communicating with the public, press, stockholders,
creditors and customers on such matters of public concern as notice of contract
awards, plant openings or closings, employee layoffs or rehires and financial
information;
(iv) assist and advise the Company in obtaining other new
products;
(v) provide advice with respect to other business-related
matters.
(b) The Company does not desire the Consultant to perform, nor
will the Consultant perform, any services under this Agreement in connection
with the offer or sale of any securities of the Company in a debt or
capital-raising transaction.
(c) The Consultant is engaged by the Company only for the
purposes and to the extent set forth in this Agreement, and the relationship of
the Consultant to the Company shall continue during the period hereunder to be
that of an independent contractor. The Consultant shall be free to devote such
remaining portion of its entire time, energy and skill during regular business
hours as the Consultant deems advisable, subject, however, to the terms and
provisions of Section 7 hereof.
2. Compensation
(a) In consideration of the consulting and advisory services
to be provided by the Consultant pursuant to Section 1 hereof, the Company
hereby grants to the Consultant, as of June 12, 1996 (the "Date of Grant"), a
twelve-month warrant (the "Warrant") to purchase two hundred fifty thousand
(250,000) shares of the Company's Common Stock, exercisable at a price of two
and one-half dollars ($2.50) per share. The Warrant is granted subject to the
provisions of this Agreement and upon the terms and conditions set forth in said
Warrant (a copy of which is annexed as Exhibit 1).
(b) The Consultant shall also be entitled to receive
reimbursement for, or payment directly by the Company of, all reasonable
expenses, not to exceed $750 in any calendar month, incurred at the written
request of the President of the Company in rendering services under this
Agreement, provided that the Consultant accounts therefore in writing to the
Company.
3. Resale Restrictions
The certificate or certificates for the shares of the Common
Stock issued upon any full or partial exercise of the Warrant shall bear the
following legend unless and until those shares have been registered for sale on
public markets as required by applicable law.
2
<PAGE>
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act") or the
securities laws of any state, and may not be sold, pledged, hypothecated,
donated, or otherwise transferred, whether or not for consideration, unless
either the shares have been registered under the Act or any applicable state
securities law or the Company shall have received a written opinion of counsel,
satisfactory to the Company, to the effect that such registration is not
required and that such transfer will not violate the Act or applicable state
securities law."
4. Termination
(a) The death of the Consultant shall automatically terminate
this Agreement and the Warrant.
(b) This Agreement will automatically terminate at the end of
one year unless extended by written agreement of the parties hereto.
5. Disposition of Shares Upon Termination
(a) In the event this Agreement is terminated pursuant to
Sections 4 or 6 hereof, or for any other reason except breach by the Company,
the unexercised Warrant, or any remaining part thereof shall be automatically
and immediately cancelled.
(b) The Consultant agrees to deliver to the Company any and
all certificates evidencing the cancelled Warrant within five (5) business days
after the termination of this Agreement.
(c) The Consultant agrees to at all times indemnify and save
harmless the Company from and against any and all liabilities, losses, damages,
costs, charges, counsel fees, and other expenses of every nature and character
by reason of the failure by the Consultant to deliver or tender any certificates
evidencing the cancelled Warrant Shares as aforesaid.
6. Nontransferability of Warrant
The Warrant is not transferable and may be exercised only by
the Consultant. More particularly, but without limiting the generality of the
foregoing, the Warrant may not be assigned, transferred or otherwise disposed
of, or pledged or hypothecated in any way (whether by operation of law or
otherwise), and shall not be subject to execution, attachment or other process.
Any assignment, transfer, pledge, hypothecation or other disposition of the
Warrant attempted contrary to the provision of this Agreement (whether by
operation of law or other reasons) or any levy of execution, attachment or other
process attempted upon the Warrant, will be null and void and without effect.
Any attempt to make any such assignment, transfer, pledge, hypothecation or
other disposition of the Warrant or any attempt to make any such levy of
execution, attachment or other process will cause the Warrant to terminate
immediately upon the happening of any such event if the President of the Company
should, at any time, in his sole discretion, so elect by written notice to the
Consultant; provided, however, that any such termination of the Warrant under
the foregoing provisions of this Section 6 will not prejudice any rights or
remedies which the Company may have under this Agreement or otherwise.
3
<PAGE>
7. Confidentiality Agreement
(a) Consultant agrees to treat confidentially any confidential
information furnished by the Company including but not limited to client
lists and financial information (the "Confidential Material"); provided,
however, that the term "Confidential Material" does not include information
which was or becomes generally available to the public, becomes available on a
non-confidential basis to the Consultant from a source not known to the
Consultant, based upon reasonable inquiry, to be bound by a confidentiality
agreement with the Company or information that has been independently acquired
or developed by the Consultant without violating any of the Consultant's
obligations under this Agreement. Furthermore, said Confidential Material will
not be disclosed to any third party without the written consent of the President
of the Company. This obligation to maintain the confidentiality of the
Confidential Material shall survive the termination of this Agreement and for
two years thereafter.
(b) Upon the Company's request the Consultant will promptly
redeliver all copies of Confidential Material and destroy all memoranda, notes
and other writings prepared by the Consultant based on the Confidential
Material.
8. Cross Indemnification
The Company and the Consultant will each indemnify and hold
harmless the other from and against any claims, actions, proceedings, demands,
liabilities, damages, judgements, assessments, losses and costs, including fees
and expenses arising exclusively out of or in connection with any
misrepresentation, negligence, bad faith, unauthorized conduct or violation of
law or regulation committed by the Company or the Consultant, as the case may
be, in connection with Consultant's services under this Agreement, and each will
reimburse the other for all such fees and expenses, including, but not limited
to, the reasonable fees of counsel, as they are incurred, in connection with
pending or threatened litigation whether or not the party receiving such
indemnification is a party to such litigation. The foregoing is in addition to
and not by way of limitation of any rights or remedies each party may have at
common law or otherwise.
9. Miscellaneous
(a) Each notice relating to this Agreement will be in writing
and delivered in person or by registered or certified mail or by express courier
service to the proper address. All notices to the Company shall be addressed to
it at its principal office at 1 Passaic Avenue, Wood-Ridge, New Jersey, 07075.
All notices to the Consultant shall be addressed to the Consultant at the
Consultant's business, 101 Jericho Turnpike, Jericho, New York 11753. Anyone to
whom a notice may be given under this Agreement may designate a new address by
notice given in accordance with the provisions of this Section 10(a).
(b) This Agreement shall inure to the benefit of, and shall be
binding upon the Consultant, his heirs, executors, administrators and legal
representatives and shall be binding upon, and inure to the benefit of, the
Company and his successors and assigns. The Consultant
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<PAGE>
may not assign or hypothecate in any manner any of its rights or obligations
hereunder without the prior written consent of the Company, its successors or
assigns which consent may be withheld in the sole and absolute discretion of the
Company.
(c) Each of the covenants by the Consultant and the Company
contained herein shall be independent and severable from the others; and the
invalidity, illegality or unenforceability of any provision of this Agreement
shall not affect any other provision of this Agreement which shall remain in
full force and effect, nor shall the invalidity, illegality or unenforceability
of a portion of the provisions of this Agreement affect the balance of any such
provision.
(d) The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(e) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New Jersey applicable to contracts
executed and to be fully performed therein without regard to principles of
conflicts of laws.
(f) The failure of either party in any one or more instances
to insist upon the performance of any of the terms or conditions of this
Agreement, or to exercise any right or privilege conferred in this Agreement, or
the waiver of any breach of any of the terms, covenants or conditions of this
Agreement, shall not be construed as thereafter waiving any such terms,
covenants, conditions, rights or privileges, and the same shall continue and
remain in full force and effect as if no such forbearance or waiver has
occurred. No change, termination or attempted waiver of any of the provisions
hereof shall be binding unless in writing and signed by the party against whom
the same is sought to be enforced. This Agreement sets forth the entire
Agreement between the parties hereto with respect to the subject matter herein
contained. There are no other covenants, promises, agreements, conditions or
understandings, either oral or written, between the parties hereto with respect
to the subject matter hereof.
IN WITNESS THEREOF, the undersigned have caused this Agreement
to be executed as of the date first above written.
Rotary Power International, Inc. Mark Wachs
/s/ Richard M.H. Thompson /s/ Mark Wachs
- ------------------------- -------------------------
Richard M.H. Thompson Mark Wachs
President
5
<PAGE>
EXHIBIT 4.2
Non-Transferable Warrant to Purchase 250,000 Shares
of Common Stock of Rotary Power International, Inc.
<PAGE>
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND HAS BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW
TO THE DISTRIBUTION THEREOF. THIS WARRANT MAY NOT BE SOLD OR TRANSFERRED UNLESS
THERE IS AN EFFECTIVE REGISTRATION STATEMENT COVERING IT OR THE COMPANY RECEIVES
AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE COMPANY) REASONABLY
ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
No. RPW12 Warrant to Purchase 250,000
Shares of Common Stock
(subject to adjustment)
NON-TRANSFERABLE
WARRANT TO PURCHASE COMMON STOCK
OF
ROTARY POWER INTERNATIONAL, INC.
1. a) This certifies that, subject to the terms set forth below and the
terms of the Consulting Agreement dated as of 12 June 1996 by and between MARK
WACHS (the "Holder") and Rotary Power International, Inc., a Delaware
corporation (the "Company"), for value received, the Holder is entitled, at any
time on or after the date hereof and before 5:00 p.m., New York time, on 11 June
1997 (the "Exercise Period") to purchase from the Company up to 250,000 shares
(subject to adjustment in accordance with the terms hereof) of the Company's
common stock, par value $.01 per share (the "Common Stock") upon surrender
hereof to the Company at the Company's offices, presently at 1 Passaic Avenue,
Wood-Ridge, NJ 07075 with the subscription form attached hereto duly executed,
and simultaneous payment therefore in lawful money of the United States for the
number of shares being purchased at $2.50 per share (the "Purchase Price"). The
aggregate Purchase Price for all shares covered by this warrant is $625,000. The
term "Common Stock" shall include, unless the context otherwise requires, the
stock and other securities and property at the time receivable upon exercise of
this Warrant.
b) Certificates for shares of Common Stock purchased upon exercise
of this Warrant will be delivered by the Company to the Holder within fifteen
(15) business days after the exercise of the Warrant, by personal delivery of
written notice to the Company or by certified mail, return receipt requested.
Unless this Warrant has expired or all of the purchase rights represented hereby
have been exercised, the Company will prepare a new Warrant, substantially
identical hereto, representing the rights formerly represented by this Warrant
which have not expired or been exercised and will, within such fifteen (15) days
period, deliver such new Warrant to the Holder.
1
<PAGE>
c) The Common Stock issuable upon the exercise of this Warrant will
be deemed to have been issued at the exercise time, and the Holder will be
deemed for all purposes to have become the record holder of such Common Stock at
the exercise time.
d) The issuance of certificates for shares of Common Stock upon
exercise of this Warrant will be made subject to any charge to the Holder for
any issuance tax in respect thereof. Each share of Common Stock issuable upon
exercise of this Warrant will, upon payment of the Purchase Price therefore, be
fully paid and nonassessable and free from all liens and charges with respect to
the issuance thereof.
2. If there shall be any change as described in (a), (b) or (c) below,
the aggregate Purchase Price (as determined in Section 1) shall remain unchanged
but the shares covered by this Warrant shall in each instance be adjusted as
follows:
a) If a share dividend is declared on the Common Stock of the
Company, the number of shares of Common Stock subject to this Warrant shall be
increased by the number of shares which would have been issuable to the Holder
if such Holder had exercised this Warrant immediately prior to the record date
related to the declaration and payment of such share dividend.
b) If an increase or decrease is effected in the number of
outstanding shares of the Company's common stock by reason of sub-division or
combination of such shares, the number of shares of Common Stock subject to this
Warrant shall equal the number of shares which would have been held by the
Holder after consummation of such combination or sub-division if the Holder had
exercised this Warrant immediately prior to the record date related to such
sub-division or combination and the Holder held no other shares of Common Stock
other than those deemed issued upon exercise of this Warrant.
c) In case of a capital reorganization, consolidation or merger
(except a merger in which the Company is the surviving corporation), or the sale
of all or substantially all of the properties and assets of the Company (each of
the foregoing is sometimes hereinafter referred to as a "Reorganization"), the
securities or any other property to be received upon exercise of this Warrant
shall be the securities and other property which would have been held by the
Holder after consummation of such Reorganization if the Holder had exercised
this Warrant immediately prior to the record date related to such Reorganization
and Holder held no other shares of Common Stock other than those deemed and
issued upon exercise of this Warrant. Notwithstanding anything herein to the
contrary, in the case of a Reorganization which qualified for adjustment under
this subparagraph (c), the Holder must exercise this Warrant (or agree to
exercise this Warrant) within ten (10) days after written notice of the
execution of the definitive agreement with the acquiror is delivered by the
Company or the acquiror to the Holder.
3. The Holder shall have no rights as a shareholder of the Company in
respect of shares of Common Stock covered by this Warrant except for any number
of shares actually purchased under this Warrant.
2
<PAGE>
4. The Company shall at all times during the term of this Warrant
reserve and keep available such number of shares of its Common Stock as will be
sufficient to satisfy the requirement of this Warrant.
5. This Warrant shall be binding upon the Company's successors
and assigns.
6. The Holder agrees that it will comply with all applicable laws,
rules and regulations of all Federal and State securities regulators including
but not limited to the Securities and Exchange Commission, the National
Association of Securities Dealers and applicable state securities regulators
with respect to disclosure, filings and any other requirements resulting in any
way from the issuance of this Warrant other than those requiring acts by the
Company in accordance with applicable Federal and State securities laws and
regulations and the Consulting Agreement.
7. The rights of the Holder of this Warrant are governed by and
subject to the terms and conditions of the Consulting Agreement between MARK
WACHS and ROTARY POWER INTERNATIONAL, INC. dated as of 12 June 1996.
ATTEST: ROTARY POWER INTERNATIONAL, INC.
by: /s/ Gerald Horowitz by: /s/ Richard M.H. Thompson
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Gerald Horowitz Richard M.H. Thompson
Vice President President
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SUBSCRIPTION FORM
(To Be Executed Only Upon Exercise of Warrant)
The undersigned registered owner of this Warrant irrevocably exercises
this Warrant to purchase the number of shares of Common Stock of Rotary Power
International, Inc. specified below and herewith makes payment therefor, all at
the price and on the terms and conditions specified in this Warrant.
DATED: ____________________
Number of Shares __________
Purchase Price ____________
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(Signature of Registered Owner)
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(Street Address)
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(City) (State) (Zip)
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(Social Security Number)
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EXHIBIT 5
Opinion of Wilentz, Goldman & Spitzer, P.A.
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[LETTERHEAD OF WILENTZ, GOLDMAN & SPITZER, P.A.]
Woodbridge
(908) 855-6142
June 21, 1996
Rotary Power International, Inc.
P.O. Box 128
Wood-Ridge, NJ 07075
Registration Statement on Form S-8
250,000 shares of Common Stock
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Dear Sirs:
We are acting as special counsel for Rotary Power
International, Inc. (the "Company"), in connection with the registration of
250,000 shares of Common Stock of the Company with a par value of $0.01 per
share (the "Common Shares"), as described in the Company's Registration
Statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), on the date hereof. The Common Shares are to be
issued by the Company upon the exercise of a warrant issued to Mark Wachs (the
"Warrant").
As such counsel, we have examined the Registration Statement
and such corporate records and other documents and instruments and have made
such investigations of law as we have considered necessary or appropriate for
the purpose of rendering this opinion.
Based on the foregoing, we are pleased to advise you that, in
our opinion:
1. The Company has been duly incorporated and is a validly
existing corporation under the laws of State of Delaware.
2. The Common Shares issuable pursuant to the Warrant have
been duly authorized and reserved for issuance and, when certificates for the
Common Shares have been duly executed by the Company, countersigned by a
transfer agent, duly registered by a registrar for the Common Shares and issued
in accordance with the terms of the Warrant, including the payment to the
Company of any amount required to be paid under the terms of the Warrant in
order to acquire the Common Shares, the Common Shares will be validly issued,
fully paid and nonassessable.
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We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement. By giving the foregoing consent, we do not admit
that we are within the category of persons whose consent is required by Section
7 of the Securities Act.
Very truly yours,
/s/ WILENTZ, GOLDMAN & SPITZER, P.A.
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EXHIBIT 23.2
Consent Of Coopers & Lybrand L.L.P.
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Rotary Power International,
Inc. Registration Statement on Form S-8, relating to a Warrant to purchase
250,000 shares of common stock, par value $.01 per share, to Mark Wachs, in
connection with a consulting agreement dated as of June 12, 1996, of our report
dated March 8, 1996 on our audits of the consolidated financial statements of
Rotary Power International, Inc. as of December 31, 1995 and 1994, and for the
years then ended, which report is included in the Rotary Power International,
Inc. 1995 Annual Report on Form 10-KSB.
/s/ COOPERS & LYBRAND, L.L.P.
Stamford, CT
June 21, 1996
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