<PAGE>
As filed with the Securities and Exchange Commission on August 27, 1996,
Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
________________________________
ECKLER INDUSTRIES, INC.
-----------------------
(Exact Name of Registrant As Specified in Its Charter)
Commission File #1-14082
Florida 59-1469577
-----------------------------------------------------------------
[State of Incorporation] [IRS Employer Identification Number]
5200 S. Washington Avenue
Titusville, Florida 32780 (407) 269-9680
-------------------------------------------
(Address, including Zip Code, and Telephone Number, including Area Code of
Registrant's principal executive offices)
STOCK ISSUED PURSUANT TO CONSULTING AGREEMENT AND RELATED STOCK OPTION AGREEMENT
- -------------------------------------------------------------------------------
(Full Title of Plan)
Ralph H. Eckler, President
--------------------------
5200 S. Washington Avenue, Titusville, Florida 32780 (407) 269-9680
- -------------------------------------------------------------------------------
(Address, including Zip Code, and Telephone Number, including Area Code of Agent
for Service)
________________________________________
Pursuant to Rule 462 This Registration Statement Shall Become Effective Upon its
Filing, and sales of the Registered Securities Will Begin As Soon as Reasonably
Practicable Thereafter.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Maximum
----------------
Title of Each Class of Amount Offering Aggregate
Securities to be To Be Price Per Offering Amount of
Registered Registered (1) Share (2) Price Registration Fee
---------- -------------- --------- ----- ----------------
Class A $ 4.06 $1,258,600.00 $ 434.00
Common Stock 310,000
- -----------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416 of the Securities act of 1933, as amended (the "Act")
this Registration Statement also registers such indeterminate number of shares
as may become issuable in connection with splits, share dividends or similar
dilutive transactions made without consideration.
(2) Calculated solely for the purposes of this Offering under Rule 457 of the
Act on the basis of the average high/low price on August 26, 1996 as quoted on
the NASDAQ SmallCap Market.
Documents Incorporated by Reference / X / Yes / / No
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant incorporates the following documents by reference in this
Registration Statement.
(a) Registrant's Annual Report on Form 10-KSB as filed with the Securities and
Exchange Commission on January 16, 1996, Commission File No. 1-14082.
(b) Registrant's Quarterly Report on Form 10-QSB as filed with the Securities
and Exchange Commission on February 13, 1996, Commission File No. 1-14082,
and as amended by Amendment No. 2 filed on or about March 27, 1996.
(c) Registrant's Quarterly Report on Form 10-QSB as filed with the Securities
and Exchange Commission on May 5, 1996, Commission File No. 1-14082.
(d) Registrant's Quarterly Report on Form 10-QSB as filed with the Securities
and Exchange Commission on August 14, 1996, Commission File No. 1-14082.
(e) Registrant's Current Report on Form 8-K as filed with the Securities and
Exchange Commission on March 13, 1996, Commission File No. 1-14082.
(f) Registrant's Registration Statement on Form 8-A filed with the Securities
and Exchange Commission on November 8, 1995, Commission File No. 0-27180,
and the description of Registrant's Class A Common Stock contained therein.
(g) Registrant's Amendment No. 1 to Registration Statement on Form 8-A filed
with the Securities and Exchange Commission on November 9, 1995, Commission
File No. 0-27180 and Commission File No. 1-14082.
All other documents subsequently filed by Registrant under Sections 13(a),
13(c), 14 and 15(d) of the Securities and Exchange Act of 1934 (the "Exchange
Act"), and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered have been
sold or which de-registers all securities then remaining unsold, shall be deemed
to be incorporated herein by reference and to be a part hereof from the date of
filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Page 2
<PAGE>
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 607.0850(1) of the Florida Business Corporation Act ("FBCA")
permits a Florida corporation to indemnify any person who was or is a party to
any third party proceeding 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
liability incurred in connection with such proceeding, including any appeal
thereof, 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.
Section 607.0850(2) of the FBCA permits a Florida corporation to indemnify
any person who was or is a party to a derivative action if such person acted in
any of the capacities set forth in the preceding paragraph, against expenses and
amounts paid in settlement not exceeding, in the judgment of the board of
directors, the estimated expense of litigating the proceeding to conclusion,
actually and reasonably incurred in connection with the defense or settlement of
such proceeding, including any appeal thereof. Such indemnification shall be
authorized if such person acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation,
except that no indemnification shall be made under this subsection in respect to
any claim, issue, or matter as to which such person shall have been adjudged to
be liable unless, and only to the extent that, the court in which such
proceeding was brought, or any other court of competent jurisdiction, shall
determine upon application that, despite the adjudication of liability, but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnification for such expenses which such court deems proper.
Section 607.0850(4) of the FBCA provides that any indemnification made
under the above provisions, unless pursuant to a court determination, may be
made only after a determination that the person to be indemnified has met the
standard of conduct described above. This determination is to be made by a
majority vote of a quorum consisting of the disinterested directors of the board
of directors, by independent legal counsel, or by a majority vote of the
disinterested shareholders. The board of directors also may designate a special
committee of disinterested directors to make this determination. Section
607.0850(3), however, provides that to the extent that any officer, director,
employee or agent of a corporation has been successful on the merits or
otherwise in defense of any proceeding referred to in subsection 607.0850(1) or
subsection 607.0850(2), or in defense of any claim, issue, or matter therein,
the Corporation must indemnify him against expenses actually and reasonably
incurred by him in connection therewith.
Section 607.0850(7) provides further that the indemnification and
advancement of expenses provided in Section 607.0850 are not exclusive, and a
corporation may make any other or further indemnification of advancement of
expenses of any of its directors, officers, employees or agents under any
bylaws, agreement, vote of shareholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office. However, a corporation cannot
indemnify or advance expenses to or on behalf of such person if a judgment or
other final adjudication establishes that his actions, or
Page 3
<PAGE>
omissions to act, were material to the cause of action so adjudicated and the
director, officer, employee or agent (a) violated criminal law, unless he had
reasonable cause to believe his conduct was not unlawful, (b) derived an
improper personal benefit from a transaction, (c) was or is a director in a
circumstance where liability under Section 607.0834 (relating to unlawful
distribution) applies, or (d) engages in willful misconduct or conscious
disregard for the best interests of the corporation in a proceeding by or in
right of the corporation to procure a judgment in its favor or in a proceeding
by or in right of a shareholder.
The Company's Amended and Restated Bylaws ("Bylaws") provide for
indemnification of directors, officers, and others. The general effect of the
Bylaws provisions is to indemnify any officer, director, employee or agent
against any liability arising from any action or suit to the fullest extent
permitted by the FBCA. Advances against expenses may be made under the Bylaws,
and indemnity coverage provided thereunder includes liabilities under federal
securities laws as well as in other contexts. Specifically, Article V provides
that any person, his heirs, or personal representative, made, or threatened to
be made, a party to any threatened, pending, or completed action or proceeding,
whether civil, criminal, administrative, or investigative, because he is or was
a director, officer, employee or agent of [Eckler Industries, Inc. (the
"Corporation")] or serves or served any other corporation or other enterprise in
any capacity at the request of the Corporation, shall be indemnified by the
Corporation, and the Corporation shall advance his related expenses to the full
extent permitted by Florida law. In discharging his duty, any director, officer,
employee or agent, when acting in good faith, may rely upon information,
opinions, reports, or statements, including financial statements and other
financial data, in each case prepared or presented by (1) one or more officers
or employees of the Corporation whom the director, officer, employee or agent
reasonably believes to be reliable and competent in the matters presented, (2)
counsel, public accountants, or other persons as to matters that the director,
officer, employee or agent believes to be within that person's professional or
expert competence, or (3) in the case of a director, a committee of the board of
directors upon which he does not serve, duly designated according to law, as to
matters within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its full board of directors, purchase
insurance for the purpose of indemnifying these persons. The insurance may be
for the benefit of all directors, officers and employees.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
Page 4
<PAGE>
ITEM 8. EXHIBITS.
Exhibit Description
------- -----------
5 Opinion of Greenberg Traurig Hoffman Lipoff Rosen
& Quentel, P.A.
10.1 Financial Public Relations Consulting Agreement
between the Registrant and Gerald A. (Jerry)
Larder, dated July 25, 1996
10.1.1 Stock Option Agreement between the Registrant and
Gerald A. (Jerry) Larder, dated July 25, 1996
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Greenberg Traurig Hoffman Lipoff Rosen
& Quentel, P.A. (contained in Exhibit 5)
24 Powers of Attorney (included on signature page to
the Registration Statement)
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant, a small business issuer, will:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this Registration Statement to include any
additional or changed material information on the plan of distribution.
(2) For determining liability under the Securities Act of 1933, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
Page 5
<PAGE>
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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 Act and will be governed by final adjudication of
such issue.
Page 6
<PAGE>
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 Titusville, State of Florida, on this 27 day of
August, 1996.
ECKLER INDUSTRIES, INC.
By: /s/ Ralph H. Eckler
-----------------------------------------
Ralph H. Eckler
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933 as amended, this
Registration Statement on Form S-8 (the "Registration Statement") has been
signed by the following person in the capacities and on the dates indicated.
Each person whose signature appears below on this Registration Statement hereby
constitutes and appoints Ralph H. Eckler and Ronald V. Mohr, and each of them,
his true and lawful attorneys-in-fact and agents, 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) (until revoked in writing) to sign any and all
amendments (including additional post-effective amendments and amendments
thereto) to this Registration Statement of Eckler Industries, Inc. 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, and each of them, full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes, as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Signature Title Date
- --------- ----- ----
/s/ Ralph H. Eckler President, Chief Executive August 27, 1996
- ------------------- Officer, Director
Ralph H. Eckler
/s/ Ronald V. Mohr Vice President Finance and August 27, 1996
- ------------------- Admin., Director (Principal
Ronald V. Mohr Financial Officer)
/s/ Joseph Yossifon Director August 27, 1996
- -------------------
Joseph Yossifon
/s/ Donald Wojnowski Director August 27, 1996
- --------------------
Donald Wojnowski
/s/ Ernest Restina Controller August 27, 1996
- ---------------------
Ernest Restina
Page 7
<PAGE>
EXHIBIT INDEX
Exhibit Description Page
- ------- ----------- ----
5 Opinion of Greenberg Traurig Hoffman Lipoff
Rosen & Quentel, P.A.
10.1 Financial Public Relations Consulting Agreement
10.1.1 Stock Option Agreement
23.1 Consent of BDO Seidman, LLP
Page 8
<PAGE>
EXHIBIT 5
Opinion of Greenberg Traurig Hoffman Lipoff Rosen & Quentel, P.A.
<PAGE>
August 27, 1996
Eckler Industries, Inc.
5200 S. Washington Avenue
Titusville, FL 32780
Re: Form S-8 Registration Statement
Gentlemen:
You have advised us the Eckler Industries, Inc. (the "Company") is filing
with the Securities and Exchange Commission a Registration Statement on Form S-8
with respect to the following shares of the Company's Class A Common Stock, $.01
par value (the "Class A Stock"): (a) 35,000 shares of Class A Stock to be
issued to Gerald A. Larder (the "Consultant") as compensation pursuant to a
consulting agreement, and (b) 275,000 shares of Class A Stock issuable upon
exercise of a stock option issued to the Consultant as additional compensation
pursuant to the consulting agreement.
In connection with the filing of the Form S-8 Registration Statement (the
"Registration Statement"), you have requested that we furnish you with an
opinion as to the legality of the shares of Class A Stock as shall be offered by
the Company itself pursuant to the said Registration Statement.,
We have made such examination of the corporate records and proceedings of
the Company and have taken such further action as we deemed necessary or
appropriate to the rendering of our opinion herein.
Based on the foregoing, we are of the opinion that, having been duly
authorized and upon their issuance for good and valuable consideration, the
35,000 share of Class A Stock will be legally issued, fully paid and non-
assessable. Further, the 275,000 shares of Class A Stock issuable upon exercise
of the stock option in favor of consultant, when paid for and issued as
contemplated by the stock option, will legally issued, fully paid and
non-assessable.
<PAGE>
We hereby consent to the use of this opinion in connection with the
Company's Registration Statement and the inclusion hereof as an exhibit thereto.
Very truly yours,
/s/
GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
<PAGE>
EXHIBIT 10.1
Financial Public Relations Consulting Agreement
<PAGE>
FINANCIAL PUBLIC RELATIONS
CONSULTING AGREEMENT
THIS FINANCIAL PUBLIC RELATIONS CONSULTING AGREEMENT, made as of the 25th day of
July 1996, by and between JERRY LARDER, having his principal office located at
7515 E. Peakview Avenue, Suite 316, Englewood, CO 80111 (hereinafter referred
to as (the "CONSULTANT") and ECKLER INDUSTRIES, INC., a Florida corporation
having its principal office located at 5200 South Washington Avenue, Titusville,
FL 32780 ("THE COMPANY").
RECITALS
WHEREAS, the Company requires financial public relations services and
assistance and desires to employ Consultant, as an independent contractor
Consultant, to provide such services, and Consultant is agreeable to such
employment, and the parties desire a written document formalizing their
relationship and evidencing the terms of their agreement;
AGREEMENT
NOW, THEREFORE, intending to be legally bound and in consideration of the
mutual promises and covenants, the parties have agreed as follows:
1. APPOINTMENT. The Company hereby retains the Consultant as its non-
exclusive financial public relations counsel and hereby retains and employs
Consultant, on the terms and conditions of this Agreement. The Consultant
accepts such appointment and agrees to perform the services in accordance with
the terms and conditions of this Agreement.
2. TERM. The term of this Agreement shall begin on July 25, 1996 and shall
terminate on July 25, 1999.
3. SERVICES
(a) Consultant shall act, generally, as a non-exclusive financial
public relations counsel essentially, acting (1) as a liaison between the
Company and its stockholders; (2) as an advisor to the Company with respect
to existing and potential market makers, broker-dealers, underwriters as
well as being a liaison between the Company and such persons; and (3) as an
advisor to the Company with respect to communications and information
(e.g., interviews, press releases, shareholder reports, etc.) as well as
planning, designing, developing, organizing, writing and distributing such
communications and information as the Company may request or direct.
(b) As the Company shall request or direct, Consultant shall assist in
establishing, and advise the Company with respect to: shareholder meetings,
interviews of Company
<PAGE>
officers by analysts, market makers, broker-dealers, and other members of
the financial community, both in the United States and in Europe.
(c) Consultant shall seek to make the Company, its management, its
products, and its financial situation and prospects, known to the financial
press and publications, broker-dealers, and other members of the financial
community, both in the United States and Europe.
(d) As the Company shall request or direct, Consultant shall act,
generally as a financial public relations counselor to the Company,
including: (1) introducing the Company to broker-dealers, market makers,
banks, financial advisors, financial institutions both in the United States
and in Europe; (2) introducing the Company to potential business partners
and customers; and (3) arranging interviews and analyst meetings, and
securing invitations for the Company to appropriate conferences and
business events, and similar financial public relations events.
(e) The initial services to be rendered by Consultant shall be: (1)
securing of TV interviews and placement of at least one magazine profile;
(2) the fulfillment and distribution of leads generated by promotions
throughout the broker network; (3) Broker introduction and interview
conferences (4) Consultant shall bring a minimum of three market makers on
line for the Company; and (5) any additional expenses required for services
shall be mutually agreed upon by both Consultant and the Company.
4. LIMITATIONS ON SERVICES. The parties recognize that certain
responsibilities and obligations are imposed by both U.S. and foreign securities
laws as well as by the applicable rules and regulations of the NASD, in-house
"due diligence" or "compliance" departments of brokerage houses, etc.
Accordingly, Consultant agrees:
(a) Consultant shall NOT release any financial or other information or
data about the Company without the consent and approval of the Company.
(b) Consultant shall NOT conduct any meeting with financial analysts
without informing the Company in advance of the proposed meeting and the
format or agenda of such meeting and the Company may elect to have a
representative of the Company attend at such meeting.
(c) Consultant shall NOT release any information or data about the
Company to any selected or limited person(s), entity, or group if the
Consultant is aware that such information or data has not been generally
released or promulgated.
(d) After notice by the Company of filing for a proposed public
offering of securities of the Company, and during any period of
restriction on publicity, the Consultant shall not engage in any public
relations efforts not in the normal course without approval of counsel for
the Consultants and of counsel for the underwriter(s), if any.
<PAGE>
(e) the Consultant shall NOT take any action or advise or knowingly
permit the Company to take any action, which would violate any U.S. and
foreign securities laws or rules and regulations issued thereunder.
(f) After notice by the Company of any placement of its securities
pursuant to the provisions of Regulation S and during any period of
restriction on publicity, Consultant shall NOT violate the publicity
provisions or Regulation S.
5. DUTIES OF COMPANY.
(a) the Company shall supply Consultant, on a regular and timely
basis, with all approved data and information about the Company, its
management, its products, and its operations and the Company shall be
responsible for advising Consultant of any facts which would affect the
accuracy of any prior data and information previously supplied to
Consultant so that Consultant may take corrective action.
(b) the Company shall, from time to time as applicable, promptly
supply Consultant: (i) with full and complete copies of any and all filings
with the Securities and Exchange Commission and all foreign securities
agencies; (ii) with full and complete copies of all filings with any stock
exchanges; (iii) with full and complete copies of all shareholder reports
and communications whether or not prepared with CONSULTANT's assistance;
(iv) with all data and information supplied to any analyst, broker-dealer,
market maker, or other member of the financial community; and (v) with all
product/services brochures, sales materials, etc.
(c) During the term of this Agreement, Company shall notify Consultant
prior to issuing any shares under Regulation S, or a form S-8, or under any
other method which results in free-trading shares during the term of this
Agreement.
(d) the Company shall promptly notify Consultant of any event which
triggers any restrictions on publicity, together with a statement as to the
countries included within the publicity restriction requirements.
(e) the Company shall, contemporaneously with supplying information or
data to Consultant, notify Consultant if any information or data being
supplied to Consultant has not been generally released or promulgated.
6. REPRESENTATION AND INDEMNIFICATION:
(a) The Company shall be deemed to make a continuing representation of
the accuracy of any and all material facts, material information, and
material data which it supplies to Consultant and the Company acknowledges
its awareness that Consultant will rely on such continuing representation
in disseminating such information and otherwise performing their public
relations functions.
<PAGE>
(b) Consultant, in the absence of notice in writing from Company, will
rely on the continuing accuracy of material, information, and data supplied
by the Company.
(c) the Company hereby agrees to indemnify Consultant against, and to
hold Consultant harmless from, any claims, demands, suits, losses, damages
arising out of CONSULTANT's reliance upon the accuracy and continuing
accuracy of such material facts, material information, and material data,
unless Consultant has been negligent in fulfilling its duties and
obligations hereunder.
(d) the Company hereby agrees to indemnify Consultant against, and to
hold Consultant harmless from, any claims, demands, suits, losses, damages,
etc. arising out of CONSULTANT's reliance on the general availability of
information supplied to Consultant unless Consultant has been negligent in
fulfilling their duties and obligations hereunder.
(e) the Company hereby authorizes Consultant to issue corrective,
amendatory, supplemental, or explanatory press releases, shareholder
communications and reports, or data supplied to analysts, broker-dealers,
market makers, or other members of the financial community.
(f) all services provided by Consultant hereunder shall be performed
in accordance with all applicable Federal, State and Local laws and
regulations.
(g) Consultant hereby agrees to indemnify the Company against, and to
hold the Company harmless from any claims, demands, suits, losses, damages,
and costs (including reasonable attorneys' fees and costs) arising out of
or in connection with Consultant's negligent performance of his obligations
hereunder.
7. COMPENSATION. For all financial public relations services rendered
hereunder during the term hereof, COMPANY shall issue Consultant as follows:
(a) COMPANY shall issue to the CONSULTANT options to purchase
75,000 shares of the common stock of Eckler Industries, Inc. (ECKL) at
$3.00 per share. These options shall be exercisable for a period of 60
days commencing July 25, 1996 and ending September 25, 1996.
(b) COMPANY shall issue to the CONSULTANT 35,000 shares of the
common stock of Eckler Industries, Inc., (ECKL) of which 15,000 shares is
due immediately upon execution of this agreement. The balance shall be
issued monthly as follows:
5,000 shares due 08/25/96
5,000 shares due 09/25/96
5,000 shares due 10/25/96
5,000 shares due 11/25/96
<PAGE>
(c) ECKL shall make available to Consultant immediately following
execution hereof, stock options to purchase the common stock of Eckler
Industries, Inc., as indicated:
125,000 shares @ $3.75
75,000 shares @ $4.00
The Company shall immediately register on Form S-8 the shares of the
common stock issuable to Consultant under this agreement and the shares of
the common stock issuable upon exercise of the foregoing options within 12
months of the date of this agreement. Further, such shares shall have the
same registration rights as any stock registered by the Company following
execution of this agreement (except the stock that is registered under the
Company's registration statement on Form SB-2 (Registration No. 33-96520-A).
(d) The parties acknowledge that in negotiating these fees they
recognize that the services contemplated under this Agreement may not be
performed in equal monthly segments, but may be substantial during the
earlier portion of the term of this Agreement, but less after the
relationships and communication lines are established directly by the
Company. Accordingly, the lessening of the proportion of services over the
later portion of this Agreement shall not constitute a breach of Agreement
or termination.
(e) For all special services, not within the scope of this Agreement,
Company shall pay Consultant such fees, costs, and expenses as, and when,
the parties shall determine in advance of performance of the special
services provided that the Company has agreed in advance to the special
services.
8. BILLING AND PAYMENT. For all services contemplated to be rendered
hereunder, and the costs and expenses thereof, the Company shall pay Consultant
as outlined in paragraph 7 (a), (b), (c), (d), and (e).
9. RELATIONSHIP OF PARTIES. Consultant is an independent contractor,
responsible for the payment for all of his withholdings and other taxes on his
compensation (including unemployment compensation and FICA) and for the
compensation of his affiliates, agents, employees and representatives, as well
as all applicable withholding therefrom and taxes thereon (including
unemployment compensation and FICA) and all workmen's compensation insurance.
This Agreement does not establish any partnership, joint venture, or other
business entity or association between the parties and no party is intended to
have any interest in the business or property of the other by reason of this
Agreement.
10. TERMINATION. This Agreement may be terminated by either the Company or
the Consultant prior to the expiration of the term provided in paragraph 2
above as follows:
(a) Upon failure of the other party to cure a default under, or a
breach of, this agreement within sixty (60) days after written notice is
given to such default or breach by the terminating party.
<PAGE>
(b) Upon the bankruptcy or liquidation of the other party; whether
voluntary or involuntary;
(c) Upon the other party taking the benefit of any insolvency law;
and/or
(d) Upon the other party having or applying for a receiver appointed
for all or a substantial part of such party's assets or business.
11. ATTORNEYS FEES. Should a party default in the terms or conditions of
this Agreement and suit be filed as a result of such default, the prevailing
party shall be entitled to recover all costs incurred as a result of such
default including all costs and reasonable attorney fees, expenses and court
costs though trial and appeal.
12. WAIVER OF BREACH. The waiver by a party of a breach of any provision
of this Agreement by another party shall not be construed as a waiver of any
subsequent breach by the breaching party.
13. ASSIGNMENT. The rights and obligations of the parties under this
Agreement shall inure to the benefit of, an shall be binding upon, the
successors and assigns of the parties.
14. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by certified mail,
return receipt requested, to the principal office of the party being notified.
15. ENTIRE AGREEMENT. This instrument contains the entire Agreement of the
parties and may be modified only by agreement in writing, signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought. If any provision of this Agreement is declared void, such
provision shall be severed from this Agreement, which shall otherwise remain in
full force and effect.
16. GOVERNING LAW. This Agreement shall be a contract made in the State of
Florida and shall be interpreted and governed by, and construed in accordance
with, the laws of the State of Florida.
17. TAXES. Any and all taxes, excises, assessments, levies, interest and
penalties, which may be assessed, levied, demanded, or imposed by any
governmental agency in connection with this Agreement, shall be paid by the
party upon which they are imposed and shall be the sole obligation of such
party.
18. ARBITRATION. Any Controversy or claim arising out of or relating to
this Agreement shall be settled by arbitration in Colorado in accordance with
the applicable rules of the American Arbitration Association.
<PAGE>
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement.
ECKLER INDUSTRIES, INC. GERALD A. LARDER
By: /s/ Ralph H. Eckler By: /s/ Gerald A. Larder
-------------------------- ---------------------------
Ralph Eckler Gerald A. Larder
<PAGE>
EXHIBIT 10.1.1
Stock Option Agreement
<PAGE>
STOCK OPTION AGREEMENT
This Agreement (the "Agreement") is made effective as of the 25th day of
July, 1996 (the "Option Grant Date"), by and between Eckler Industries, Inc.
("Optionor" or the "Company") and Gerald A. (Jerry) Larder, an individual (the
"Optionee).
RECITALS
WHEREAS, this Agreement is entered into in respect of that certain
Financial Public Relations Consulting Agreement entered into by and between
Optionee and the Company and dated of even date herewith, all the terms and
conditions of which are incorporated herein by this reference (the "Consulting
Agreement"); and
WHEREAS, the Board of Directors of the Company authorized the issuance to
Optionee of certain shares of Class A Common Stock and certain stock options as
compensation for Optionee's services under the Consulting Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
1. RECITALS. The above recitals are true and correct and are
incorporated by this reference as though fully set forth herein.
2. THE OPTION. The Optionee may, at his option, purchase all or any part
of an aggregate of 275,000 shares of Class A Common Stock ("Common Stock") of
Optionor, par value $.01 per share (the "Shares"), in accordance with the terms
of this Agreement.
3. PURCHASE PRICE. The purchase price ("Option Price") of the shares
will be as follows, subject to adjustment as set forth in this Agreement:
(a) The Option Price for 75,000 Shares will be $3.00 per share
(collectively, sometimes referred to herein as the "First 75,000 Shares);
(b) The Option Price for 125,000 Shares will be $3.75 per share; and
(c) The Option Price for 75,000 Shares will be $4.00 per share.
4. EXERCISE OF OPTION. Subject to Section 10, the Option for the First
75,000 Shares shall be exercisable for a period of approximately sixty (60)
days commencing July
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25, 1996 and ending September 25, 1996. The remaining Shares shall be
exercisable for a period of one (1) year commencing July 25, 1996 and ending
July 25, 1997. The period during which the Option is in effect for the Shares
shall be referred to as the "Option Period". Exercisable but unexercised
portions of the Option shall remain exercisable during the remainder of the
Option Period. The Board of Directors of the Company in its discretion may
permit Optionee to deliver Common Stock of the Company in payment of the Option
Price; and, in such case, for any shares of Common Stock so exchanged, an amount
equal to the face value thereof on the date tendered will be credited against
the Option Price. Optionee shall deliver written notice to Optionor stating the
number of shares with respect to which the Option is being exercised and
specifying a date, not less than two nor more than ten days after the date of
such notice, as the date on which the Optionee shall pay to the Company the
Option Price. All payments of the Option Price shall be made at the principal
office of Optionor. If any law or regulation requires Optionor to take any
action with respect to the shares specified in such notice, then the date for
the delivery of such shares against payment therefore shall be extended for the
period necessary to take such action. In the event of any failure to pay f or
the number of shares specified in such notice on the date set forth therein, as
the same may be extended as provided above, the exercise of the option with
respect to such number of shares shall be treated as if it had never been made.
As soon as reasonably practical after the Optionee has validly exercised the
Option, the Company shall cause the appropriate number of shares to be issued
and delivered to the Optionee.
5. CAPITAL ADJUSTMENTS AFFECTING COMMON STOCK. The existence of the
Option shall not affect in any way the right or power of the Company or its
shareholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company or to issue any
securities, bonds, debentures, or preferred or prior preference stock ahead of
or affecting the Common Stock of the Company or the rights thereof , or to
effect the dissolution or liquidation of the Company, or any sale or transfer of
all or part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
If the outstanding shares of Common Stock of the Company are increased,
decreased, changed into or exchanged for a different number or kind of shares or
securities of the Company or of another corporation or entity or shares of a
different par value 'or without par value through a recapitalization, stock
dividend, stock split, reverse stock split or a reorganization under which the
Company is not the surviving entity, an appropriate or proportionate adjustment
shall be made in the number and/or kind of securities allocated to the Option,
without change in the aggregate Option Price applicable to the unexercised
portion of the outstanding option but with a corresponding adjustment in the
Option Price for each share or other unit of any security covered by the Option.
No adjustment shall occur under this Section 5 by virtue of the fact that the
Company purchases or sells Common Stock or any securities of the Company for
cash. To the extent that the foregoing adjustments relate to a particular stock
or securities of the Company subject to this Option, such adjustments shall be
made by the Board whose
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determination in that respect shall be final and conclusive. No fractional
Shares shall be issued for any such adjustment.
In the event of the proposed dissolution or liquidation of the Company, the
Board shall notify the Optionee at least fifteen (15) days prior to such
proposed action. To the extent it has not been exercised during such 15-day
period, this Option will terminate as to any unexercised portion thereof
immediately prior to the consummation of such proposed action.
6. RIGHTS PRIOR TO PURCHASE OF STOCK. The Optionee shall have no right
as a shareholder with respect to any of the Shares covered by the Option until
the Optionee has made full payment for the Shares being purchased and said
Shares have been issued and delivered to the Optionee. No adjustment shall be
made for dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record date is
prior to the date such Shares are fully paid for, issued and delivered, except
as provided in Section 4.
7. CERTAIN RESTRICTIONS. Optionee will acquire Optionee's Shares for
Optionee's own account, for investment only and without a view to resale or
distribution except in compliance with the Securities Act of 1933, as amended,
("Act") and any applicable state securities laws.
8. WITHHOLDING TAXES. Optionee shall be solely responsible for payment of
any federal or state income taxes owed by Optionee in connection with this
Option and exercise(s) thereof.
9. SHARES RESERVED. Optionor shall at all times during the Option Period
reserve and keep available such number of Shares as will be sufficient to
satisfy the requirements of this Agreement.
10. NONASSIGNABILITY. The Option may not be transferred except by will or
the laws of descent and distribution and, during the lifetime of the Optionee,
may be exercised only by the Optionee. Except as provided in the preceding
sentence, no option nor any interest in the Option or the Plan shall be subject
to encumbrance, assignment, alienation, transfer or anticipation either by
voluntary or involuntary act of the Optionee or the Optionee's heirs or
beneficiaries or by operation of law, nor shall such Option or right be subject
to the demands or claims of any creditor of such person or be liable in any way
for such person's death obligations or liabilities. Additionally, neither the
Optionee nor any other person or entity shall have any interest in any specific
asset or assets or stock of the Company by reason of the granting of the option.
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11. DELAY IN EXERCISE. The Board of Directors of the Company may
determine in its discretion, that listing, registration or qualification of the
Shares subject to the Option upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of the exercise of such Option; and in
such event such Option may not be exercised in whole or in part unless and until
such listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Board of
Directors of Company.
12. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
ECKLER INDUSTRIES, INC. Gerald A. Larder
By: /s/ Ralph H. Eckler /s/ Gerald A. Larder
_______________________ _______________________
As Its President "OPTIONEE"
"OPTIONOR"
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<PAGE>
EXHIBIT 23.1
Consent of BDO Seidman, LLP
<PAGE>
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Eckler Industries, Inc.
Titusville, Florida
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated December
20, 1995 relating to the financial statements of Eckler Industries, Inc.
appearing in the Company's Annual Report on Form 10-KSB for the year ended
September 30, 1995
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/
BDO SEIDMAN, LLP
Orlando, Florida
August 27, 1996
