Registration No. 33-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AMERICAN EAGLE MANUFACTURING CO.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEVADA 88-0429812
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(STATE OR OTHER JURISDICTION (IRS EMPLOYER
OF INCORPORATION) IDENTIFICATION NO.)
2052 CORTE DEL NOGAL, CARLSBAD, CALIFORNIA 92009
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
STOCK ISSUANCE PURSUANT TO
2004 NON-QUALIFIED STOCK OPTION PLAN
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(FULL TITLE OF THE PLAN)
COPY TO:
DON LOGAN DAVID M. LOEV, ATTORNEY AT LAW
AMERICAN EAGLE MANUFACTURING CO. 2777 ALLEN PARKWAY
2052 CORTE DEL NOGAL SUITE 1000
CARLSBAD, CALIFORNIA 92009 HOUSTON, TEXAS 77019
(760) 804-1789 (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 PROPOSED PROPOSED AMOUNT
TO BE REGISTERED BE MAXIMUM MAXIMUM OF
REGISTERED OFFERING PRICE AGGREGATE REGISTRA-
PER OFFERING TION
SHARE (1) PRICE FEE
Common Stock, $.001 par value 5,500,000 $ 0.89 $4,922,500 $ 620.20
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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 average of
the bid and asked price as reported on the Nasdaq Electronic Bulletin Board as of
August 9, 2004.
PART I
INFORMATION REQUIRED IN THE 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 Annual Report of American Eagle Manufacturing Co. (the "Company")
on Form 10-KSB filed on April 18, 2003 for the fiscal year ended
December 31, 2002, as amended by Form 10-KSB/A filed on April 24,
2003, which includes audited financial statements as of and for the
year ended December 31, 2002.
(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, including the report on Form
8-K/A filed on February 10, 2004, which includes audited consolidated
financial statements of American Eagle Corporation, our wholly-owned
subsidiary, as of and for the year ended June 30, 2003.
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 200,000,000 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. During the last two fiscal years, 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
Legal counsel for the Company is the owner of 50,000 restricted shares and
3,105 free-trading shares of the Company's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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 Company's Bylaws provide indemnification for any present or former
director, advisor director or officer of the Company, any person who served in
any such capacity at the Company's request in another corporation, partnership
joint venture, trust, employee benefit plan or other enterprise, and any person
nominated or designated by the Board of Directors to serve in any of the above
mentioned capacities (the "Indemnitee") against all judgments, penalties
(including excise and similar taxes), fines, amounts paid in settlement and
reasonable expenses actually incurred in connection with any threatened, pending
or contemplated action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such an action, suit
or proceeding, and any inquiry or investigation that could lead to such an
action, suit or proceeding ("Proceeding") in which the Indemnitee was, is or is
threatened to be named a defendant or respondent, by reason, in whole or in
part, of his serving or having served, or having been nominated or designated to
serve, in any of the capacities referred to above, if it is determined that the
Indemnitee conducted himself in good faith, reasonable believed that his conduct
was in the Company's best interest (or at least not opposed to the Company's
best interest in certain cases), or in the case of any criminal proceeding, had
no reasonable cause to believe that his conduct was unlawful. If the Indemnitee
is found liable to the Company or is found liable on the basis that personal
benefit was improperly obtained, the Bylaws limit the indemnification to the
reasonable expenses actually incurred by the Indemnitee in connection with the
Proceeding. The Bylaws do not provide indemnification in respect of any
proceeding in which the Indemnitee has been found liable for willful or
intentional misconduct in the performance of his duty to the Company. The
indemnification provided by the Bylaws is applicable whether or not negligence
or gross negligence of the Indemnitee is alleged or proven. The indemnification
is not exclusive of, and does not preclude, any other rights to which an
Indemnitee may at any time be entitled under the Company's Articles of
Incorporation, any law, agreement or vote of shareholders or disinterested
directors, or otherwise, or under any policy or policies of insurance purchased
and maintained by the Company on behalf of any Indemnitee as to action in any
capacity.
The provisions affecting personal liability do not abrogate a director's or
officer's fiduciary duty to the Company and its shareholders, but eliminate
personal liability for monetary damages for breach of that duty. The provisions
regarding indemnification do not, however, eliminate or limit the liability of
an officer or director for failing to act in good faith, for acting in a manner
not in the Company's best interest, for engaging in willful or intentional
misconduct, fraud or knowingly violating a law, for authorizing the illegal
payment of a dividend or repurchase of stock, for obtaining a personal benefit
in money, property or services to which the officer or director is not legally
entitled or for violations of the federal securities laws including those
regarding "short-swing" profits. The provisions also do not eliminate or limit
the liability of a director 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 2004 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 Malone & Bailey, PLLC, Certified Public Accountants
23.3 Consent of Pollard-Kelley Auditing Services, Inc.
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 Carlsbad, State of California on July 20, 2004.
AMERICAN EAGLE MANUFACTURING CO.
BY: /s/ Don Logan
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Don Logan, 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/ Don Logan
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Don Logan Chief Executive Officer, Principal August 11, 2004
Financial and Accounting Officer
and Director
/s/ Barrie Logan
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Barrie Logan Director August 11, 2004
EXHIBIT 4.1
AMERICAN EAGLE MANUFACTURING CO.
2004 NON-QUALIFIED STOCK OPTION PLAN
1. Purpose. This 2004 Non-Qualified Stock Option Plan (the "Plan") is
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intended to promote the financial success and interests of American Eagle
Manufacturing Co. (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 the Company's 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
Five Hundred Thousand (5,500,000), 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 plus taxes (as provided in Section 22, below) 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
-----------------------------
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
-------------------------
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.
------------------------
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
---------------------------
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
---------------------------------
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
condi-tions 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
-----------
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 by 1) additional withholding if the Optionee is an existing
employee with respect to whom the Company withholds taxes on the date of
exercise (or such other time as the Company's obligation to withhold taxes may
accrue); or 2) direct payment of the required withholding to the Company. The
Compensation Committee of the Board of Directors or the Board of Directors, as
applicable, in their sole discretion, shall determine the amount of taxes that
are required to be withheld.
23. Effective Date and Duration of the Plan.
---------------------------------------------
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 July 20, 2004.
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
August 11, 2004
American Eagle Manufacturing Co.
2052 Corte Del Nogal
Carlsbad, California 92009
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 American Eagle Manufacturing
Co. (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:
- 5,500,000 shares (the "Shares") of common stock, $.001 par value
issuable pursuant to the 2004 Non-Qualified Stock Option Plan (the
"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 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.
The Company has been advised that the Shares are not eligible for issuance 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.
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 Auditors
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of American Eagle Manufacturing Co. (formerly Harbour
Front Holdings, Inc. and prior to that, The Bauer Partnership, Inc.) of our
report dated April 14, 2003, which appears in the Registrant's Form 10-KSB, as
amended, for the year ended December 31, 2002.
Malone & Bailey, PLLC
Certified Public Accountants
2925 Briarpark, Suite 930
Houston, Texas 77042
www.malone-bailey.com
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August 11, 2004
EXHIBIT 23.3
Consent of Independent Auditors
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of American Eagle Manufacturing Co. (formerly Harbour
Front Holdings, Inc. and prior to that, The Bauer Partnership, Inc.) of our
report dated November 30, 2003, which appears in the Registrant's Form 8-K/A
filed on February 10, 2004.
Pollard-Kelley Auditing Services, Inc.
Auditing Services
3250 West Market St, Suite 307
Fairlawn, OH 44333
330-864-2265
August 12, 2004