Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AERO MARINE ENGINE, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEVADA 98-0353007
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(STATE OR OTHER JURISDICTION (IRS EMPLOYER
OF INCORPORATION) IDENTIFICATION NO.)
199 TRADE ZONE DRIVE, RONKONKOMA, NEW YORK 11779
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
STOCK ISSUANCE PURSUANT TO
2003 NON-QUALIFIED STOCK OPTION PLAN
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(FULL TITLE OF THE PLAN)
COPY TO:
RICHARD POWERS DAVID M. LOEV, ATTORNEY AT LAW
AERO MARINE ENGINE, INC. 2777 ALLEN PARKWAY
199 TRADE ZONE DRIVE SUITE 1000
RONKONKOMA, NEW YORK 11779 HOUSTON, TEXAS 77019
(631) 285-7101 (713) 524-4110
NAME, ADDRESS AND TELEPHONE
(NUMBER OF AGENT FOR SERVICE)
APPROXIMATE DATE OF PROPOSED SALES PURSUANT TO THE PLAN: FROM TIME TO TIME
AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SHARE (1) PRICE FEE
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Common Stock, $.001 par value 5,000,000 $ 0.77 $ 3,850,000 $ 311.47
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(1) Calculated in accordance with Rule 457(c) solely for the purpose of determining the
registration fee. The offering price is based on the last sale price as reported on the Nasdaq
Electronic Bulletin Board as of January 20, 2004.
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Information required by Item 1 is included in documents sent or given to
participants in the Plan pursuant to Rule 428(b)(1) of the Securities Act.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Information required by Item 2 is included in documents sent or given to
participants in the Plan pursuant to Rule 428(b)(1) of the Securities Act.
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") are incorporated by reference into this Registration
Statement and are made a part hereof:
(a) The Company's Annual Report on Form 10-KSB filed on October 14, 2003, as
amended on November 24, 2003, for the fiscal year ended June 30, 2003, which
includes audited financial statements as of and for the year ended June 30,
2003.
(b) All other reports filed 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 Item 3(a) above.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after
the date of filing this Registration Statement and prior to such time as the
Company files a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superceded
for the purpose of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which is also, or is
deemed to be, incorporated herein by reference modifies or supercedes such
statement. Any such statement so modified or superceded shall not be deemed,
except as so modified or superceded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
COMMON STOCK
GENERAL. The Company is authorized to issue 100,000,000 shares of Common
Stock, $.001 par value per share.
The holders of the Common Stock are entitled to receive dividends when, as
and if declared by the Board of Directors, out of funds legally available
therefor. In the event of liquidation, dissolution or winding up of the
Company, the holders of the Common Stock are entitled to share ratably in all
assets remaining available for distribution to them after payment of liabilities
and after provision has been made for each class of stock, if any, having
preference over the Common Stock. The holders of the Common Stock as such have
no conversion, sinking fund, cumulative, preemptive or other subscription rights
and there are no redemption provisions applicable to the Common Stock.
VOTING RIGHTS. The holders of the Common Stock are entitled to one vote
for each share held of record on all matters to be voted on by stockholders.
There is no cumulative voting with respect to the election of directors, with
the results that the holders of shares having more than fifty percent (50%) of
the votes for the election of directors can elect all of the directors.
DIVIDEND POLICY. To date, the Company has not paid any dividends on its
Common Stock. The payment of dividends, if any, in the future is within the
discretion of the Board of Directors and will depend upon the Company's
earnings, its capital requirements and financial condition and other relevant
factors. The Board does not intend to declare any dividends in the foreseeable
future, but instead intends to retain all earnings, if any, for use in the
Company's business operations.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Bylaws provide that the Company shall indemnify its officers
and directors to the extent permitted by Nevada law. Nevada law authorizes a
corporation to indemnify directors, officers, employees or agents of the
corporation in non-derivative suits if such party acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interest of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, as determined in
accordance with Nevada law.
The provisions affecting personal liability do not abrogate a director's
fiduciary duty to the Company and its shareholders, but eliminate personal
liability for monetary damages for breach of that duty. The provisions do not,
however, eliminate or limit the liability of a director for failing to act in
good faith, for engaging in intentional misconduct or knowingly violating a law,
for authorizing the illegal payment of a dividend or repurchase of stock, for
obtaining an improper personal benefit, for breaching a director's duty of
loyalty, which is generally described as the duty not to engage in any
transaction which involves a conflict between the interest of the Company and
those of the director, or for violations of the federal securities laws.
The provisions regarding indemnification provide, in essence, that the
Company will indemnify its officers and directors against all expenses
(including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with any action, suit or
proceeding arising out of their status as officers or directors of the Company.
The provisions do not require a showing of good faith. Moreover, they do not
provide indemnification for liability arising out of willful misconduct, fraud,
or dishonesty, for "short-swing" profits violations under the federal securities
laws, for the receipt of illegal remuneration or if the officer or director
received a benefit in money, property or services to which the officer or
director is not legally entitled.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 2003 Non-Qualified Stock Option Plan
5.1 Opinion and consent of David M. Loev, Attorney at Law re: the legality
of the shares being registered
23.1 Consent of David M. Loev, Attorney at Law (included in Exhibit 5.1)
23.2 Consent of Epstein, Weber & Conover, P.L.C.
ITEM 9. UNDERTAKINGS
(a) The registrant hereby undertakes:
(1) To file, during any period in which offers or sells are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining liability under the Securities Act
of 1933, each post-effective amendment shall be treated as a new registration
statement of the securities offered, and the offering of the securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from registration any of
the securities being registered 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 Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 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 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 the final adjudication of such issue.
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 Ronkonkoma, State of New York, on January 21,
2004.
AERO MARINE ENGINE, INC.
BY: /s/ Richard Powers
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Richard Powers, Chief Executive Officer
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.
SIGNATURES TITLE DATE
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/s/ Richard Powers Chief Executive Officer, President, January 21, 2004
-------------------- Principal Financial and Accounting
Richard Powers Officer and Director
EXHIBIT 4.1
AERO MARINE ENGINE, INC.
2003 NON-QUALIFIED STOCK OPTION PLAN
1. Purpose. This 2003 Non-Qualified Stock Option Plan (the "Plan") is
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intended to promote the financial success and interests of Aero Marine Engine,
Inc. (the "Company") and materially increase shareholder value by giving
incentives to the eligible officers and other employees and directors of, and
consultants and advisors to, the Company, its parent (if any) and any present or
future subsidiaries of the Company (collectively, "Related Corporations")
through providing opportunities to acquire stock in the Company. As used
herein, the terms "parent" and "subsidiary" mean "parent corporation" and
"subsidiary corporation", respectively, as those terms are defined in Sections
424(e) and 424(f) or successor provisions of the Internal Revenue Code of 1986
as amended from time to time (the "Code"). Any proceeds of cash or property
received by the Company for the sale of Aero Marine Engine, Inc. Common Stock
pursuant to options granted under this Plan will be used for general corporate
purposes.
2. Structure of the Plan. The Plan permits the following separate
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types of grant:
A. Options may be granted hereunder to purchase shares of common stock of
the Company. These options will not qualify as Incentive Stock Options. The
Non-Qualified Options are sometimes referred to hereinafter as "Options".
B. Awards of stock in the Company ("Awards") may be granted.
C. Opportunities to make direct purchases of stock in the Company
("Purchases") may be authorized.
Options, Awards and authorizations to make Purchases are sometimes referred to
hereinafter as "Stock Rights".
3. Administration of the Plan.
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A. The Plan shall be administered by the Board of Directors of the Company
(the "Board"). The Board may in its sole discretion grant Options, authorize
Purchases and grant Awards, as provided in the Plan. The Board shall have full
power and authority, subject to the express provisions of the Plan, to construe
and interpret the Plan and all Option agreements, Purchase authorizations and
Award grants thereunder, to establish, amend and rescind such rules and
regulations as it may deem appropriate for the proper administration of the
Plan, to determine in each case the terms and provisions which shall apply to a
particular Option agreement, Purchase authorization, or Award grant, and to make
all other determinations which are, in the Board's judgment, necessary or
desirable for the proper administration of the Plan. The Board may correct any
defect, supply any omission or reconcile any inconsistency in the Plan or in any
Option agreement, Purchase authorization or Award grant in the manner and to the
extent it shall, in its sole discretion, consider expedient. Decisions of the
Board shall be final and binding on all parties who have an interest in the Plan
or any Option, Purchase, Award, or stock issuance thereunder. No director or
person acting pursuant to authority delegated by the Board shall be liable for
any action or determination under the Plan made in good faith.
B. The Board may, to the full extent permitted by and consistent with
applicable law and the Company's By-laws, and subject to Subparagraph D
hereinbelow, delegate any or all of its powers with respect to the
administration of the Plan to a committee (the "Committee") appointed by the
Board. If a Committee has been appointed, all references in this Plan to the
Board shall mean and relate to that Committee.
C. Those provisions of this Plan which make express reference to Rule
16b-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any successor rule ("Rule 16b-3"), or which are required in order for
certain option transactions to qualify for exemption under Rule 16b-3, shall
apply only to those persons required to file reports under Section 16(a) of the
Exchange Act (a "Reporting Person").
D. If the Company registers any class of equity security under Section 12
of the Exchange Act, the selection of a director or an officer (as the terms
"director" and "officer" are defined for purposes of Rule 16b-3) as a recipient
of an option, the timing of the option grant, the exercise price of the option
and the number of shares subject to the option shall be determined either (i) by
the Board, if all of the Board members are disinterested persons within the
meaning of Rule 16(b)(3), or (ii) by two or more directors having full authority
to act in the matter, each of whom shall be such a disinterested person.
4. Eligible Employees and Others. Non-Qualified Options, Awards, and
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authorizations to make Purchases may be granted to any employee, officer or
director of, or consultant or advisor to the Company or any Related Corporation,
except for instances where services are in connection with the offer or sale of
securities in a capital-raising transaction, or they directly or indirectly
promote or maintain a market for the Company's securities. In making such
determinations, the Board and/or the Committee may take into account the nature
of the services rendered by such person, his or her present and potential
contribution to the Company's success, and such other factors as the Board
and/or Committee in its discretion shall deem relevant. The granting of any
Stock Right to any individual or entity shall neither entitle that individual or
entity to, nor disqualify him from, participation in any other grant of Stock
Rights.
5. Stock. The stock subject to Options, Awards and Purchases shall be
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authorized but unissued shares of common stock of the Company ("Common Stock"),
or shares of Common Stock reacquired by the Company in any manner. The
aggregate number of shares which may be issued under the Plan is Five Million
(5,000,000), subject to adjustment as provided in Paragraph 13. If any Option
granted under the Plan shall expire or terminate for any reason without having
been exercised in full or shall cease for any reason to be exercisable in whole
or in part, or if the Company shall reacquire any nonvested shares issued
pursuant to Awards or Purchases, the unpurchased shares subject to such Option,
or such nonvested shares so reacquired shall again be available for grants of
Stock Rights under the Plan. No fractional shares of Common Stock shall be
issued, and the Board and/or Committee shall determine the manner in which
fractional share value shall be treated.
6. Option Agreements. As a condition to the grant of an Option, each
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recipient of an Option shall execute an option agreement in such form not
inconsistent with the Plan as the Board shall approve. These option agreements
may differ among recipients. The Board may, in its sole discretion, include
additional provisions in option agreements, including without limitation
restrictions on transfer, repurchase rights, commitments to pay cash bonuses, to
make, arrange for or guarantee loans or to transfer other property to optionees
upon exercise of options, or such other provisions as shall be determined by the
Board; provided, however, that such additional provisions shall not be
inconsistent with any provision of the Plan.
7. Option Exercise Price.
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A. Subject to Subparagraph 3D of this Plan and Subparagraph B of this
Paragraph 7, the purchase price per share of Common Stock deliverable upon the
exercise of an Option ("exercise price") shall be determined by the Board.
B. The exercise price of each Non-Qualified Option granted under the Plan
shall in no event be less than the par value per share of the Company's Common
Stock.
8. Cancellation and New Grant of Options, Etc. The Board shall have
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the authority to effect, at any time and from time to time, with the consent of
the affected optionees, the cancellation of any or all outstanding Options and
the grant in substitution therefor of new Options covering the same or different
shares of Common Stock and having an exercise price per share which may be lower
or higher than the exercise price per share of the canceled Options.
9. Exercise of Options.
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A. Each Option granted under the Plan shall be exercisable either in full
or in installments at such time or times and during such period as shall be set
forth in the agreement evidencing the Option, subject to the provisions of the
Plan. The partial exercise of an option shall not cause the expiration,
termination or cancellation of the remaining portion thereof. The Board may, in
its sole discretion, (i) accelerate the date or dates on which all or any
particular Option or Options granted under the Plan may be exercised or (ii)
extend the dates during which all, or any particular, Option or Options granted
under the Plan may be exercised.
B. Options granted under the Plan may provide for payment of the exercise
price by any of the following methods:
(i) In cash, by wire transfer, by certified or cashier's check, or by
money order; or
(ii) By delivery to the Company of an exercise notice that
requests the Company to issue to the Optionee the full number of shares as
to which the Option is then exercisable, less the number of shares that have
an aggregate Fair Market Value, as determined by the Board in its sole
discretion at the time of exercise, equal to the aggregate purchase price of
the shares to which such exercise relates. (This method of exercise allows the
Optionee to use a portion of the shares issuable at the time of exercise as
payment for the shares to which the option relates and is often referred to as a
"cashless exercise." For example, if the Optionee elects to exercise 1,000
shares at an exercise price of $0.25 and the current Fair Market Value of the
shares on the date of exercise is $1.00, the Optionee can use 250 of the 1,000
shares at $1.00 per share to pay for the exercise of the entire Option (250
x $1.00 = $250.00) and receive only the remaining 750 shares.)
For purposes of this section, " Fair Market Value" shall be defined as the
average closing price of the common stock (if actual sales price information on
any trading day is not available, the closing bid price shall be used) for the
five trading days prior to the Date of Exercise of this Option (the "Average
Closing Bid Price"), as reported by the National Association of Securities
Dealers Automated Quotation System ("NASDAQ"), or if the common stock is not
traded on NASDAQ, the Average Closing Bid Price in the over-the-counter market;
provided, however, that if the common stock is listed on a stock exchange, the
Fair Market Value shall be the Average Closing Bid Price on such exchange; and,
provided further, that if the common stock is not quoted or listed by any
organization, the fair value of the common stock, as determined by the Board of
Directors of the Company, whose determination shall be conclusive, shall be
used). In no event shall the Fair Market Value of any share of Common Stock be
less than its par value.
10. Option Period. Subject to earlier termination under other
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provisions of this Plan, each Option and all rights thereunder shall expire on
such date as shall be set forth in the applicable option agreement.
11. Nontransferability of Options. Options shall not be assignable or
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transferable by the optionee, either voluntarily or by operation of law, except
by will or the laws of descent and distribution, and, during the life of the
optionee, except to the extent otherwise provided in the agreement evidencing
the Option, shall be exercisable only by the optionee.
12. Effect of Termination of Employment or Other Relationship. Subject
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to all other provisions of the Plan, the Board shall determine the period of
time during which an Optionee may exercise an Option following (i) the
termination of the optionee's employment or other relationship with the Company
or a Related Corporation or (ii) the death or disability of the optionee. Such
periods shall be set forth in the agreement evidencing the Option.
13. Adjustments.
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A. If, through or as a result of any merger, consolidation, sale of all or
substantially all of the assets of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other similar transaction, (i) the outstanding shares of Common Stock
are increased, decreased or exchanged for a different number or kind of shares
or other securities of the Company, or (ii) additional shares or new or
different shares or other securities of the Company or other non-cash assets are
distributed with respect to such shares of Common Stock or other securities, an
appropriate and proportionate adjustment shall be made in (a) the maximum number
and kind of shares reserved for issuance under the Plan, (b) the number and kind
of shares or other securities subject to any then outstanding Options under the
Plan, and (c) the price for each share subject to any then outstanding Options
under the Plan, without changing the aggregate purchase price as to which such
Options remain exercisable. No fractional shares shall be issued under the Plan
on account of any such adjustments.
B. Any adjustments under this Paragraph 13 shall be made by the Board of
Directors, whose determination as to what adjustments, if any, will be made and
the extent thereof shall be final, binding and conclusive.
14. Rights as a Shareholder. The holder of an Option shall have no
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rights as a shareholder with respect to any shares covered by the option
(including, without limitation, any voting rights, the right to inspect or
receive the Company's balance sheets or financial statements or any rights to
receive dividends or non-cash distributions with respect to such shares) until
the date of issue of a stock certificate for such shares. No adjustment shall
be made for dividends or other rights for which the record date is prior to the
date such stock certificate is issued.
15. Merger, Consolidation, Asset Sale, Liquidation, Etc.
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A. Except as may otherwise be provided in the applicable option agreement,
in the event of a consolidation or merger or sale of all or substantially all of
the assets of the Company in which outstanding shares of Common Stock are
exchanged for securities, cash or other property of any other corporation or
business entity, or in the event of the liquidation of the Company (each, a
"Change in Control"), the Board, or the board of directors of any corporation
assuming the obligations of the Company, shall, in its discretion, take any one
or more of the following actions, as to outstanding Options: (i) provide that
such Options shall be assumed, or equivalent options shall be substituted, by
the acquiring or succeeding corporation (or an affiliate thereof); (ii) upon
written notice to the optionees, provide that any and all outstanding Options
shall become exercisable in full (to the extent not otherwise so exercisable) as
of a specified date or time ("Accelerated Vesting Date") prior to the
consummation of such transaction, and that all unexercised Options shall
terminate as of a specified date or time ("Accelerated Expiration Date")
following the Accelerated Vesting Date unless exercised by the Optionee prior to
the Accelerated Expiration Date; provided, however, that optionees shall be
given a reasonable period of time within which to exercise or provide for the
exercise of outstanding Options following such written notice and before the
Accelerated Expiration Date; (iii) in the event of a merger under the terms of
which holders of the Common Stock of the Company will receive upon consummation
thereof a cash payment for each share surrendered in the merger (the "Merger
Price"), terminate each outstanding Option in exchange for a payment, made or
provided for by the Company, equal in amount to the excess, if any, of the
Merger Price over the per-share exercise price of each such Option, times the
number of shares of Common Stock subject to such Option; or (iv) terminate each
outstanding Option in exchange for a cash payment equal in amount to the product
of the excess, if any, of the fair market value of a share of Common Stock over
the per-share exercise price of each such Option, times the number of shares
subject to such Option. The Board shall determine the fair market value of a
share of Common Stock for purposes of the foregoing, and the Board's
determination of such fair market value shall be final, binding and conclusive.
B. In the event of a Change in Control and to the extent the rights
described in this Section 15B are not already substantially provided to each
Qualified Option Recipient (as defined below) by the Board (or the board of
directors of any corporation assuming the obligations of the Company) pursuant
to Section 15A, beginning on the date which is 180 days from the date of such
Change in Control, each Qualified Option Recipient shall have the right to
exercise and receive from the Company or its successor their respective
Acceleration Amount (as defined below). A "Qualified Option Recipient" is
defined as an option recipient hereunder who both (A) has maintained a
relationship as an employee, officer or director of, or consultant or advisor
to, the Company or its successor for the 180 days immediately prior to the
Change in Control and (B) on the date which is 180 days after the date of the
Change in Control, either (i) maintains a relationship as an employee, officer
or director of, or consultant or advisor to, the Company or its successor or
(ii) fails to maintain a relationship as an employee, officer or director of, or
consultant or advisor to, the Company or its successor by reason of having such
relationship terminated by the Company or its successor other than for Cause,
where "Cause" means willful misconduct or willful failure of the option
recipient to perform the responsibilities of such option recipient's agreed-upon
business relationship with the Company or its successor, including without
limitation such option recipient's breach of any provision of any employment,
consulting, nondisclosure, non-competition or similar agreement between the
option recipient and the Company. With respect to each Qualified Option
Recipient, the "Acceleration Amount" shall mean the lesser of (a) the number of
additional shares of Common Stock (or their equivalent) which would have become
vested pursuant to their option agreement over the twelve (12) month period
following the date of the Change in Control or (b) fifty percent (50%) of the
shares of Common Stock (or their equivalent) which had not yet vested pursuant
to their option agreement as of the date of the Change in Control. The Board
and, where applicable, the board of directors of any corporation assuming the
obligations of the Company, shall take all necessary action to accomplish the
purposes of this Section 15B, including all such actions as are necessary to
provide for the assumption of such obligation upon the Change in Control.
C. The Company may grant Options under the Plan in substitution for
Options held by employees of another corporation who become employees of the
Company or a Related Corporation as the result of a merger or consolidation of
the employing corporation with the Company or a Related Corporation, or as a
result of the acquisition by the Company or a Related Corporation of property or
stock of the employing corporation. The Company may direct that substitute
Options be granted on such terms and conditions as the Board considers
appropriate in the circumstances.
D. In the event of a Change in Control and with respect thereto, the rights
and responsibilities of holders of Stock Rights pursuant to this Plan shall be
governed first and foremost by the Company's agreement with the respective
recipient of such Stock Rights and then, to the extent applicable, by the terms
of this Section 15.
16. Stock Restriction Agreement. As a condition to the grant of an
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Award or a Purchase authorization under the Plan, the recipient of the Award or
Purchase authorization shall execute an agreement ("Stock Restriction
Agreement") in such form not inconsistent with the Plan as may be approved by
the Board. Stock Restriction Agreements may differ among recipients. Stock
Restriction Agreements may include any provisions the Board determines should be
included and that are not inconsistent with any provision of the Plan.
17. No Special Employment Rights. Nothing contained in the Plan or in
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any option agreement or other agreement or instrument executed pursuant to the
provisions of the Plan shall confer upon any Optionee any right with respect to
the continuation of his or her employment by the Company or any Related
Corporation or interfere in any way with the right of the Company or a Related
Corporation at any time to terminate such employment or to increase or decrease
the compensation of the optionee.
18. Other Employee Benefits. Except as to plans which by their terms
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include such amounts as compensation, no amount of compensation deemed to be
received by an employee as a result of the grant or exercise of an Option or the
sale of shares received upon such exercise, or as a result of the grant of an
Award or the authorization or making of a Purchase will constitute compensation
with respect to which any other employee benefits of such employee are
determined, including, without limitation, benefits under any bonus, pension,
profit-sharing, life insurance or salary continuation plan, except as otherwise
specifically determined by the Board.
19. Amendment of the Plan.
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A. The Board may at any time, and from time to time, modify or amend the
Plan in any respect.
B. The termination or any modification or amendment of the Plan shall not,
without the consent of an optionee, affect the optionee's rights under an Option
previously granted. With the consent of the Optionee affected, the Board may
amend outstanding option agreements in a manner not inconsistent with the Plan.
The Board shall have the right to amend or modify (i) the terms and provisions
of the Plan, and (ii) the terms and provisions of the Plan and of any
outstanding Option to the extent necessary to ensure the qualification of the
Plan under Rule 16b-3.
20. Investment Representations. The Board may require any person to
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whom an Option is granted, as a condition of exercising such Option, and any
person to whom an Award is granted or a Purchase is authorized, as a condition
thereof, to give written assurances in substance and form satisfactory to the
Board to the effect that such person is acquiring the Common Stock subject to
the Option, Award or Purchase for such person's own account for investment and
not with any present intention of selling or otherwise distributing the same,
and to such other effects as the Company deems necessary or appropriate in order
to comply with federal and applicable state securities laws, or with covenants
or representations made by the Company in connection with any public offering of
its Common Stock.
21. Compliance With Securities Laws. Each Option shall be subject to
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the requirement that if, at any time, counsel to the Company shall determine
that the listing, registration or quali-fication of the shares subject to such
Option upon any securities exchange or under any state or federal law, or the
consent or approval of any governmental or regulatory body, or that the
disclosure of non-public information or the satisfaction of any other condition
is necessary as a condition of, or in connection with, the issuance or purchase
of shares thereunder, such Option may not be exercised, in whole or in part,
unless such listing, registration, qualification, consent or approval, or
satisfaction of such condition shall have been effected or obtained on
conditions acceptable to the Board. Nothing herein shall be deemed to require
the Company to apply for or to obtain such listing, registration or
qualification, or to satisfy such condition.
22. Withholding. The Company shall have the right to deduct from
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payments of any kind otherwise due to the Optionee any federal, state or local
taxes of any kind required by law to be withheld with respect to any shares
issued upon exercise of Options under the Plan or upon the grant of an Award,
the making of a Purchase of Common Stock for less than its fair market value, or
the vesting of restricted Common Stock acquired pursuant to a Stock Right. The
Board in its sole discretion may condition the exercise of an Option, the grant
of an Award, the making of a Purchase, or the vesting of restricted shares
acquired by exercising a Stock Right on the grantee's payment of such additional
withholding taxes.
23. Effective Date and Duration of the Plan.
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A. The Plan shall become effective when adopted by the Board and Stock
Rights granted under the Plan shall become exercisable upon the Board's approval
of the Plan. Amendments to the Plan not requiring shareholder approval shall
become effective when adopted by the Board. Stock Rights may be granted under
the Plan at any time after the effective date and before the termination date of
the Plan.
B. Unless sooner terminated as provided elsewhere in this Plan, this Plan
shall terminate upon the close of business on the day next preceding the tenth
anniversary of the date of its adoption by the Board. Stock Rights outstanding
on such date shall continue to have force and effect in accordance with the
provisions of the instruments evidencing such Stock Rights.
Adopted by the Board of Directors on December 17, 2003.
EXHIBIT 5.1
DAVID M. LOEV, ATTORNEY AT LAW
2777 ALLEN PARKWAY, SUITE 1000
HOUSTON, TX 77019
713-524-4110 PHONE
713-524-4122 FACSIMILE
January 21, 2004
Aero Marine Engine, Inc.
199 Trade Zone Drive
Ronkonkoma, New York 11779
Re: Form S-8 Registration Statement
Gentlemen:
You have requested that we furnish you our legal opinion with respect to the
legality of the following described securities of Aero Marine, Inc. (the
"Company") covered by a Form S-8 Registration Statement (the "Registration
Statement"), filed with the Securities and Exchange Commission for the purpose
of registering such securities under the Securities Act of 1933:
- 5,000,000 shares (the "Shares") of common stock, $.001 par value issuable
pursuant the 2003 Non-Qualified Stock Option Plan.
In connection with this opinion, I have examined the corporate records of the
Company, including the Company's Articles of Incorporation, Bylaws, and the
Minutes of its Board of Directors and Shareholders meetings, the 2003
Non-Qualified Stock Option Plan, the Registration Statement, and such other
documents and records as I deemed relevant in order to render this opinion.
Based on the foregoing, it is my opinion that, after the Registration Statement
becomes effective and the Shares have been issued and delivered as described
therein, the Shares will be validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement and further consent to
statements made therein regarding this firm and use of my name under the heading
"Legal Matters" in the Prospectus constituting a part of such Registration
Statement.
Sincerely,
/s/ David M. Loev, Attorney at Law
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the Aero Marine Engine, Inc. 2003 Non-Qualified Stock
Option Plan of our report dated October 13, 2003 with respect to our audit of
the financial statements of Aero Marine Engine, Inc. included in its Annual
Report on Form 10-KSB and Form 10-KSB/A as of June 30, 2003 and for the year
then ended, filed with the Securities and Exchange Commission.
/s/ EPSTEIN, WEBER & CONOVER, P.L.C.
Scottsdale, Arizona
January 19, 2004