As filed with the Securities and Exchange Commission on April 26, 2006
Registration No. 333-132659
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1
to
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HYBRID TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Nevada 88-0490890
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
5001 East Bonanza Road, Suite 138-145
Las Vegas, Nevada 89110
(Address of principal executive offices)
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Hybrid Technologies, Inc.
2006 Restricted Stock Plan (Amended)
(Full title of the plan)
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Holly Roseberry
President and Chief Executive Officer
Hybrid Technologies, Inc.
5001 East Bonanza Road, Suite 138-145
Las Vegas, Nevada 89110
(Name and address of agent for service)
(818) 780-2403
(Telephone number, including area code of Agent for Service)
Copies to:
Michael J. Morrison, Esq.
1495 Ridgeview Drive, Suite 220
Reno, NV 89509
(775) 827-6300
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CALCULATION OF REGISTRATION FEE
<table>
<caption>
Proposed
Proposed Aggregate Maximum
Title of Securities Amount to Be Maximum Offering Offering Amount of
To Be Registered Registered Price Per Share Price* Registration Fee
- ------------------- ------------ ---------------- --------- ----------------
<s> <c> <c> <c> <c>
Common Stock,
$.001 Par Value
Per Share 2,000,000** shs $9.00 $18,000,000.00 $1926.00**
- -------------------------------------------------------------------------------------------------
</table>
(*)Pursuant to Rule 457(h)(1), under the Securities Act of 1933,
computed on the basis of the closing price of the Common Stock as reported in
the over-the-counter market on April 20, 2006
(**) The Registrant has previously registered 3,000,000 shares with the
initial filing of this Registration Statement on March 33, 2006, and paid a
registration fee of $3322.25 with respect to such 3,000,000 shares.
================================================================================
<page>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1: PLAN INFORMATION.
Not applicable.
ITEM 2: REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not applicable.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), File No. 000-33391, are
hereby incorporated by reference in this Registration Statement:
1. The Company's Annual Report under the Exchange Act for its fiscal
year ended July 31, 2005, on Form 10-KSB, as filed with the Commission on
October 26, 2005; its Quarterly Report for the three-month period ended October
31, 2005, on Form 10-QSB, filed with the Commission on December 15, 2005; and
its Quarterly Report for the three-month period ended January 31, 2006, on Form
10-QSB, filed with the Commission on February 17, 2006.
2. The Company's Registration Statement on Form 8-A12G under the
Exchange Act, as filed with the Commission on December 7, 2001, together with
Amendment No. 3 to the Company's Registration Statement on Form SB-2, filed with
the Commission on October 31, 2001, and the description of common stock set
forth therein, including any amendments or reports filed for the purpose of
updating such description.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to
the date hereof and prior to the filing of a post-effective amendment 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 herein and made a part hereof from the date of the filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Chapter 78 - Private Corporations of Title 7 of the Nevada Revised Statutes (the
"Act") including sections 78.751 and 78.7502, permits, in general, a Nevada
corporation to indemnify any person who was or is a party to an action or
proceeding by reason of the fact that he or she was a director or officer of the
corporation, or served another entity in any capacity at the request of the
corporation, against liability incurred in connection with such proceeding
including the estimated expenses of litigating the proceeding to conclusion and
the expenses, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof, if such person
acted in good faith, for a purpose he or she reasonably believed to be in, or
not opposed to, the best interests of the corporation and, in criminal actions
or proceedings, in addition had no reasonable cause to believe that his or her
conduct was unlawful. The Act permits the corporation to pay in advance of a
final disposition of such action or proceeding the expenses incurred in
defending such action or proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay such amount as, and to the extent,
required by statute. The Act provides that the indemnification and advancement
of expense provisions contained in the Act shall not be deemed exclusive of any
rights to which a director or officer seeking indemnification or advancement of
expenses may be entitled.
Article XIII of the Company's By-laws provides the following:
The Directors shall cause the Company to indemnify a Director or former Director
of the Company and the Directors may cause the Company to indemnify a director
or former director of a corporation of which the Company is or was a shareholder
and the heirs and personal representatives of any such person against all costs,
charges and expenses, including an amount paid to settle an action or satisfy a
judgment, actually and reasonably incurred by him or them including an amount
paid to settle an action or satisfy a judgment inactive criminal or
administrative action or proceeding to which he is or they are made a party by
reason of his or her being or having been a Director of the Company or a
director of such corporation, including an action brought by the Company or
corporation. Each Director of the Company on being elected or appointed is
deemed to have contracted with the Company on the terms of the foregoing
indemnity.
The Directors may cause the Company to indemnify an officer, employee or agent
of the Company or of a corporation of which the Company is or was a shareholder
(notwithstanding that he is also a Director), and his or her heirs and personal
representatives against all costs, charges and expenses incurred by him or them
and resulting from his or her acting as an officer, employee or agent of the
Company or corporation. In addition the Company shall indemnify the Secretary or
an Assistance Secretary of the Company (if he is not a full time employee of The
Company and notwithstanding that he is also a Director), and his or her
respective heirs and legal representatives against all costs, charges and
expenses incurred by him or them and arising out of the functions assigned to
the secretary by the Corporation Act or these Articles and each such Secretary
and Assistant Secretary, on being appointed is deemed to have contracted with
the Company on the terms of the foregoing indemnity.
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The Directors may cause the Company to purchase and maintain insurance for the
benefit of a person who is or was serving as a Director, officer, employee or
agent of the Company or as a director, officer, employee or agent of a
corporation of which the Company is or was a shareholder and his or her heirs or
personal representatives against a liability incurred by him as a Director,
officer, employee or agent.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibits
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3.1 Articles of Incorporation of the Company, as currently in effect.
(Incorporated herein by reference to Exhibit 3.1 to the Company's
Registration Statement on Form SB-2 filed with the Commission on
May 29, 2001.)
3.1a Certificate of Amendment to Articles of Incorporation filed October 27,
2004. (Incorporated by reference to Exhibit 3.1a to the Company's
Current Report on Form 8-K, filed with the Commission on November 2,
2004.)
3.1b Form of Restatement of Articles of Incorporation of the Company.
(Incorporated by reference to Exhibit 3.1a to the Company's Quarterly
Report on Form 10-QSB, filed with the Commission on December 15, 2004.)
3.1c Certificate of Amendment to Articles of Incorporation filed effective
March 9, 2005. (Incorporated herein by reference to Exhibit 3.1c to the
Company's Registration Statement on Form S-8, filed with the Commission
on March 23, 2006.)
3.2 By-Laws of the Company. (Incorporated herein by reference to Exhibit
3.2 to the Company's Registration Statement on Form SB-2 filed with
the Commission on May 29, 2001.)
4.3 Hybrid Technologies, Inc. 2006 Restricted Stock Plan. (Incorporated
herein by reference to Exhibit 4.3 to the Company's Registration
Statement on Form S-8, filed with the Commission on March 23, 2006.)
4.4* Hybrid Technologies, Inc. 2006 Restricted Stock Plan (Amended).
5.1* Opinion of Michael J. Morrison, Esq., counsel to the Company, regarding
the legality of the Common Stock being registered.
23.1* Consent of Mason Russell West, LLC.
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* Filed herewith.
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Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales 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 this registration statement or any material change to such
information in this registration statement; (2) that, for the purpose of
determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and (3) to remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the registrant's Certificate of Incorporation or
By-Laws, by contract, or otherwise, the registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Las Vegas, Nevada, on April 26, 2006.
HYBRID TECHNOLOGIES, INC.
(Registrant)
By: /s/ Holly Roseberry
-------------------------------
Title: President & CEO, Principal Executive Officer
and Director
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated.
Signature Titles Date
--------- ------ ----
/s/ Mehboob Charania Treasurer, Secretary April 26, 2006
and Director
- -------------------------
Mehboob Charania
INDEX TO EXHIBITS
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Exhibits
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4.4 Hybrid Technologies, Inc. 2006 Restricted Stock Plan (Amended).
5.1 Opinion of Michael J. Morrison, Esq., counsel to the Company, regarding
the legality of the Common Stock being registered.
23.1 Consent of Mason Russell West, LLC.
5
EX-4.3
HYBRID TECHNOLOGIES, INC.
2006 RESTRICTED STOCK PLAN (Amended)
1. Purpose of the Plan
The purpose of the Hybrid Technologies, Inc. 2006 Restricted Stock
Plan, as amended to increase the number of shares of Common Stock reserved for
issuance hereunder, is to provide for a plan pursuant to which the Board of
Directors of Hybrid Technologies, Inc., a Nevada corporation, can issue stock as
compensation for services rendered or to be rendered by eligible Participants
(as defined below).
2. Definitions
Wherever the following capitalized terms are used in this Plan, they
shall have the meanings specified below:
(a) "Award" means a grant of Common Stock to a Participant under the
Plan including, without limitation, a Restricted Stock Award.
(b) "Award Agreement" means an agreement entered into between the
Corporation and a Participant setting forth the terms and conditions of an Award
granted to a Participant.
(c) "Board" means the Board of Directors of the Corporation.
(d) "Common Stock" means the common stock of the Corporation.
(e) "Corporation" means Hybrid Technologies, Inc., a Nevada
corporation.
(f) "Date of Grant" means the date on which an Award under the Plan is
made by the Board, or such later date as the Board may specify to be the
effective date of the Award.
(g) "Effective Date" means the Effective Date of this Plan, as defined
in Section 8.1 hereof.
(h) "Eligible Person" means any person who is an employee of or
consultant or advisor to the Corporation and who provides bona fide services for
the Corporation, where the services are not in connection with the offer or sale
of securities in a capital raising transaction and where the services do not
directly or indirectly promote or maintain a market for the Corporation's Common
Stock. In no case shall an Award be made under the Plan where the Common Stock
granted in the Award is not eligible for registration pursuant to Form S-8 (or
any successor form promulgated for the same general purposes by the Securities
and Exchange Commission) under the U.S. Securities Act of 1933, as amended.
(i) "Fair Market Value" of a share of Common Stock as of a given date
means the value as determined by the Board based on the recent trading history
of the Common Stock in the over-the-counter market or, if the Common Stock is
not traded in the over-the-counter market, the value as determined in good faith
by the Board.
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(j) "Participant" means any Eligible Person who holds an outstanding
Award under the Plan.
(k) "Plan" means the Hybrid Technologies, Inc. 2006 Restricted Stock
Plan as set forth herein, as it may be amended from time to time.
(l) "Restricted Stock Award" means an award of restricted stock under
Section 6 hereof entitling a Participant to shares of Common Stock that are
nontransferable and subject to forfeiture until specific conditions established
by the Board are satisfied.
3. Shares of Common Stock Subject to the Plan
3.1. Number of Shares. Subject to the following provisions of this
Section 3, the aggregate number of shares of Common Stock that may be issued
pursuant to all Awards under the Plan is 5,000,000 shares of Common Stock. The
shares of Common Stock to be delivered under the Plan will be made available
from authorized but unissued shares of Common Stock or issued shares that have
been reacquired by the Corporation. To the extent that any Restricted Stock
Award payable in Common Stock is forfeited, cancelled, returned to the
Corporation for failure to satisfy vesting requirements or upon the occurrence
of other forfeiture events, or otherwise terminates without payment being made
thereunder, shares of Common Stock covered thereby will no longer be charged
against the foregoing maximum share limitations and may again be made subject to
Awards under the Plan pursuant to such limitations.
3.2. Adjustments. If there shall occur any recapitalization,
reclassification, stock dividend, stock split, reverse stock split, or other
distribution with respect to the shares of Common Stock, or other change in
corporate structure affecting the Common Stock, the Board may, in the manner and
to the extent that it deems appropriate and equitable to the Participants and
consistent with the terms of this Plan, cause an adjustment to be made in (i)
the maximum number and kind of shares provided in Section 3.1 hereof and in
outstanding Awards, (ii) the performance targets or goals applicable to any
outstanding Awards or (iii) any other terms of an Award that are affected by the
event.
4. Administration of the Plan
The Plan shall be administered by the Board. Subject to the express
limitations of the Plan, the Board shall have authority in its discretion to
determine the Eligible Persons to whom, and the time or times at which, Awards
may be granted, the number of shares subject to each Award, the time or times at
which an Award will become vested, the performance criteria, business or
performance goals or other conditions of an Award, and all other terms of the
Award. The Board shall also have discretionary authority to interpret the Plan,
to make all factual determinations under the Plan, and to make all other
determinations necessary or advisable for Plan administration. The Board may
prescribe, amend, and rescind rules and regulations relating to the Plan. All
interpretations, determinations, and actions by the Board shall be final,
conclusive, and binding upon all parties.
5. Eligibility and Awards
All Eligible Persons are eligible to be designated by the Board to
receive an Award under the Plan. The Board has authority, in its sole
discretion, to determine and designate from time to time those Eligible Persons
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who are to be granted Awards, the types of Awards to be granted and the number
of shares subject to the Awards that are granted under the Plan. To the extent
not documented in a separate agreement, each Award will be evidenced by an Award
Agreement in the form of Exhibit I hereto between the Corporation and the
Participant that shall include such terms and conditions (consistent with the
Plan) as the Board may determine; provided, however, that failure to issue an
Award Agreement shall not invalidate an Award.
6. Restricted Stock Awards
6.1. Grant of Restricted Stock Awards. A Restricted Stock Award to a
Participant represents shares of Common Stock that are issued subject to such
restrictions on transfer and other incidents of ownership and such forfeiture
conditions as the Board may determine ("Restricted Shares"). In connection with
issuance of any Restricted Shares, the Board may (but shall not be obligated to)
require the payment of a specified purchase price (which price may be less than
Fair Market Value).
6.2. Vesting Requirements. The restrictions imposed on Restricted
Shares issued under a Restricted Stock Award shall lapse in accordance with the
vesting requirements specified by the Board in the Award Agreement, any other
agreement covering the Restricted Stock Award or the Board resolution
authorizing the Restricted Stock award.
6.3. Restrictions. Restricted Shares may not be transferred or assigned
(except by will or by the laws of descent and distribution), or subject to any
encumbrance, pledge or charge until all applicable restrictions are removed or
have expired, unless otherwise allowed by the Board. The Board may require the
Participant to enter into an escrow agreement providing that the certificates
representing the Restricted Shares will remain in the physical custody of an
escrow holder until all restrictions are removed or have expired.
6.4. Rights as a Stockholder. Subject to the foregoing provisions of
this Section 6, the Participant will have all rights of a stockholder with
respect to Restricted Shares held by him, including the right to vote the shares
and receive all dividends and other distributions paid or made with respect
thereto.
7. General Provisions
7.1. Securities Laws. No shares of Common Stock will be issued or
transferred pursuant to an Award unless and until all then applicable
requirements imposed by United States and Canada federal, provincial and state
securities and other laws, rules and regulations and by any regulatory agencies
having jurisdiction, and by any stock exchanges upon which the Common Stock may
be listed, have been fully met. As a condition precedent to the issuance of
shares pursuant to an Award, the Corporation may require the Participant to take
any reasonable action to meet such requirements. The Board may impose such
conditions on any shares of Common Stock issuable under the Plan as it may deem
advisable, including, without limitation, restrictions under the U.S. Securities
Act of 1933, as amended, under the requirements of any stock exchange upon which
such shares of the same class are then listed, and under any blue sky or other
securities laws applicable to such shares.
7.2. Tax Withholding. The Participant shall be responsible for payment
of any taxes or similar charges required by law to be withheld from an Award or
an amount paid in satisfaction of an Award, which shall be paid by the
Participant on or prior to the payment or other event that results in taxable
income in respect of an Award. The Award Agreement shall specify the manner in
which the withholding obligation shall be satisfied with respect to the
particular type of Award.
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7.3. Plan Binding on Transferees. The Plan shall be binding upon the
Corporation, its transferees and assigns, and the Participant, his executor,
administrator and permitted transferees and beneficiaries.
7.4. Construction and Interpretation. Whenever used herein, unless the
context requires otherwise, nouns in the singular shall include the plural, and
the masculine pronoun shall include the feminine gender. Headings of Sections
and paragraphs hereof are inserted for convenience and reference and constitute
no part of the Plan.
7.5. Severability. If any provision of the Plan or any Award Agreement
shall be determined to be illegal or unenforceable by any court of law in any
jurisdiction, the remaining provisions hereof and thereof shall be severable and
enforceable in accordance with their terms, and all provisions shall remain
enforceable in any other jurisdiction.
7.6. Governing Law. The validity and construction of this Plan and of
the Award Agreements shall be governed by the laws of the State of Nevada.
8. Effective Date, Termination and Amendment
8.1. Effective Date. The Plan, as amended, shall become effective on
the date of its adoption by the Board.
8.2. Termination. The Plan shall terminate on the date immediately
preceding the tenth anniversary of the date the Plan is adopted by the Board.
The Board may, in its sole discretion and at any earlier date, terminate the
Plan. Notwithstanding the foregoing, no termination of the Plan shall adversely
affect any Award theretofore granted without the consent of the Participant or
the permitted transferee of the Award.
8.3. Amendment. The Board may at any time and from time to time and in
any respect, amend or modify the Plan. No amendment or modification of the Plan
shall adversely affect any Award theretofore granted without the consent of the
Participant or the permitted transferee of the Award.
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EXHIBIT I
STOCK OPTION AGREEMENT
----------------------
This Stock Option Agreement (the "Agreement") is made and entered into
as of _____________ , 200_, between Hybrid Technologies, Inc , a Nevada
corporation (the "Company"), and _______________ ("Optionee").
Witnesseth:
WHEREAS, Optionee has rendered to the Company certain services and it
is expected that Optionee will continue to render services to the Company; and
WHEREAS, The Company wishes to compensate Optionee for such services by
the grant of an option to purchase shares of the Company's Common Stock issued
pursuant to the Company's 2006 Restricted Stock Plan (Amended).
NOW THEREFORE, in consideration of the premises and of the mutual
covenants herein set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the Company and the
Optionee, the parties hereto agree as follows:
1. Grant of Option. The Company hereby irrevocably grants to the
Optionee, for the term and upon the conditions hereinafter provided, the right
and option (the "Option") to purchase ________________ shares of the Company's
Common Stock, par value $.001 per share (the "Stock"). The Optionee is limited
in the amount of this Option it may exercise. In no event shall the Optionee be
entitled to exercise any amount of this Option in excess of that amount upon
exercise of which the sum of (1) the number of shares of Common Stock
beneficially owned (as such term is defined under Section 13(d) and Rule 13d-3
of the Securities Exchange Act of 1934 (the 1934 Act") by the Optionee, and (2)
the number of shares of Stock issuable upon the exercise of any Options then
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owned by Optionee, would result in beneficial ownership by the Optionee of more
than 4.99% of the outstanding shares of Common Stock of the Company, as
determined in accordance with Rule13d-1(j) under the 1934 Act. Furthermore, the
Company shall not process any exercise that would result in beneficial ownership
by the Optionee of more than 4.99% of the outstanding shares of Common Stock of
the Company.
2. Purchase Price. The purchase price of the Stock covered by this
Option shall be _________ per share.
3. Term of Option and Vesting of Stock. The term of the Option shall be
for a period of five (5) years from the date hereof, at which time the Option
shall automatically terminate, subject to earlier termination as provided in
paragraph 6 hereof and extension as provided in paragraph 9 hereof. The Option
shall become exercisable on the following basis:
Date Amount of Option Exercisable
---- ----------------------------
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4. Optionee's Right As Stockholder. The Optionee shall have no rights
as a stockholder with respect to any shares of Stock covered by the Option until
the date of the exercise of the Option and the issuance of the shares of Stock
granted pursuant to the Option and then only to the extent that there has been
issued one or more certificates for such shares of Stock to said Optionee upon
the due exercise in whole or in part of the Option. 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 stock certificate or certificates are issued.
5. Nontransferability and Representations of Optionee. This Option
shall not be transferable, and the Option may be exercised only by the Optionee.
Furthermore, the Option (a) may not be assigned or transferred, pledged, or
hypothecated in any way, (b) shall not be assignable or transferable by
operation of law, and (c) shall not be subject to execution, attachment, or
similar process. Any attempted assignment, transfer, pledge, hypothecation, or
other disposition of the Option contrary to the provisions hereof, and the levy
of any execution, attachment, or similar process upon the Option, shall be null
and void and without force or effect.
6. Changes in Capital Structure. The number of shares of Stock covered
by the Option, and the price per share thereof as set forth in this Agreement,
shall be proportionately adjusted for any increase or decrease in the number of
issued and outstanding shares of the Common Stock of the Company resulting from
a subdivision or consolidation of shares or the payment of a stock dividend (but
only on the Common Stock of the Company) or any other increase or decrease in
the number of the shares of Common Stock of the Company effected without receipt
of consideration by the Company.
If the Company shall be the surviving corporation in any merger of
consolidation, the Option shall pertain to and apply to the securities to which
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a holder of the number of shares of Stock subject to the Option would have been
entitled. A dissolution or liquidation of the Company or a merger of
consolidation in which the Company is not the surviving corporation shall cause
the Option to terminate, provided that the Optionee shall, in such event, have
the right during the twenty-one (21) day period immediately prior to such
dissolution or liquidation, or merger or consolidation in which the Company is
not the surviving corporation, as the case may be, to exercise this Option in
whole or in part. The Company shall provide at least thirty (30) days' notice to
the Optionee of any such pending dissolution, liquidation, or merger or
consolidation in which the Company is not the surviving corporation, and shall
inform the Optionee of the right to exercise the Option within the specified
twenty-one (21) day period.
In the event of a change in the Common Stock of the Company as
presently constituted, which is limited to a change of all of its authorized
shares with par value into the same number of shares with a different par value,
such change shall be deemed to be the Stock within the meaning of the Option.
To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Board of
Directors in their sole and absolute discretion and the Board of Directors'
determination in the respect shall be final, binding and conclusive.
Except as expressly provided above in this paragraph 6, the Optionee
shall have no rights by reason of any subdivision or consolidation of shares of
stock of any class or the payment of any stock dividend or any other increase or
decrease in the number of shares of stock of any class or by reason of any
dissolution, liquidation, merger, or consolidation or spin-off of assets or
stock of another corporation, and any issue by the Company of shares of stock of
any class, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Stock subject to the Option.
The grant of the Option to the Optionee pursuant to the Agreement shall
not affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of the Company's capital or
business structure or to merge or to consolidate or to dissolve, liquidate or
sell, or transfer all or any part of the Company's business or assets.
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No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or property) or distributions or other rights for
which the record date is prior to the date a certificate or certificates is or
are issued to the Optionee with respect to the Optionee's exercise of this
Option, except as expressly provided in this paragraph 6.
Any fractional shares of any class of stock or securities resulting
from any adjustments provided for in this paragraph 6 shall be disregarded;
under no circumstances shall the Company (or any other corporation) be required
to issue or transfer any fractional shares of any class of stock or securities
of the Company (or of any other corporation) as a result of any adjustments
provided for in this paragraph 6 or to pay for, or otherwise compensate the
holder of the Option for, any such fractional shares not so issued or
transferred.
7. Method of Exercising Option. Subject to the terms and conditions of
this Agreement, the Option shall be exercised by the Optionee by the delivery of
written notice to the Treasurer of the Company at the Company's principal office
within the time period as specified in paragraph 3 hereof (or within the time
periods specified in other applicable paragraphs hereof referred to in paragraph
3). Such notice shall (a) state the election to exercise the Option, (b) specify
the number of shares to which the election applies, and (c) specify the address
to which the certificate or certificates for such shares of Stock is or are to
be mailed and all other pertinent information. Such notice shall be accompanied
by payment of the full purchase price of such shares of Stock. Payment of the
purchase price shall be made in United States currency and may be paid in cash
or by check payable to the order of the Company. The certificate or certificates
for the shares of Stock as to which the Option shall have been so exercised
shall be registered in the name of the Optionee and shall be delivered as
provided in the aforesaid notice.
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8. General.
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(a) The Company shall (1) at all times during the terms of the
Option reserve and keep available such number of shares of Stock as will be
sufficient to satisfy the requirements of this Agreement, (2) shall pay all
original issue and transfer taxes with respect to the issue and transfer of
shares of Stock pursuant to this Option and all other fees and expenses
necessarily incurred by the Company in connection therewith, and (3) shall from
time to time use its best efforts to comply with all laws and regulations which,
in the opinion of counsel for the Company, shall be applicable thereto.
(b) The Company shall not be required to sell or issue any shares
of the Stock under this Option Agreement if the sale or issuance of such shares
of Stock would constitute a violation by Optionee or the Company of any
provisions of any federal or state law, rule or regulation, or of any provisions
of any rule or regulation of any governmental authority (including, without
limitation, any federal or state securities laws, rules and regulations). The
Company shall not be obligated to take any other affirmative action in order to
cause the exercise of the Option, or the issuance of shares of Stock pursuant
thereto, to comply with any such, law rule or regulation.
(c) The Company shall not be required to sell or issue any shares
of the Stock under this Option Agreement if the delivery by Optionee of the
notice specified in paragraph 7 hereof is either (x) after the date of
termination of Optionee's employment or other engagement by the Company, or (y)
after the date of Optionee's resignation from employment or other engagement by
the Company.
9. Modification, Extension and Renewal of Option. The Board of
Directors of the Company may modify, extend, or renew the Option beyond the term
specified in paragraph 3, or accept the surrender of the Option (to the extent
not theretofore exercised).
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10. No Obligation to Exercise Option. The granting of the Option
shall impose no obligation upon the Optionee to exercise the Option.
11. Construction. This Option Agreement shall be construed in
accordance with, and shall be governed by, the laws of the State of Nevada.
12. Waiver. No waiver by any party hereto of any breach of any
covenant, condition, or agreement hereof on the part of the parties hereto to be
kept and performed shall be considered to constitute a waiver of any such
covenant, condition or provision, or of any subsequent breach thereof.
13. Severability. In the event any court of competent jurisdiction
shall declare any portion of this Option Agreement to be invalid, the remainder
of this Agreement shall not be invalidated thereby, but shall remain in full
force and effect.
14. Notices. Unless otherwise provided in this Option Agreement,
no notice, request, consent, approval, acceptance, waiver or other communication
which may be or is required or permitted to be given under this Agreement shall
be effective unless the same is in writing and is either hand delivered or sent
by registered or certified mail, return receipt requested, first-class postage
prepaid, (1) if to the Optionee to ________________________and (2) if to the
Company, to _______________________, or at any other address that may be given
by one party to the other party by notice pursuant to this paragraph 14. Unless
otherwise provided in this Option Agreement, such notices, requests, consents,
approvals, acceptances, waivers or other communications, if sent by registered
or certified mail in accordance with this paragraph 14, shall be deemed to have
been given at the time of mailing.
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15. Entire Agreement. This Option Agreement incorporates the terms
and conditions of the Plan and, together with such terms and conditions,
contains all of the agreements and understandings between the parties hereto. No
oral agreements or written correspondence shall be held to affect the provisions
hereof. All subsequent changes and modifications, to be valid, shall be by
written instrument executed by the Company and the Optionee.
IN WITNESS HEREOF, the Company, by its duly authorized officers,
and the Optionee has caused this Option Agreement to be executed and sealed, as
of the day and year first above written.
ATTEST: COMPANY:
HYBRID TECHNOLOGIES, INC.
____________________ _______________________(SEAL)
OPTIONEE:
_______________________(SEAL)
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EXHIBIT 5.1
Document is copied.
[LETTERHEAD OF MICHAEL J. MORRISON, ESQ.]
April 26, 2006
Hybrid Technologies, Inc.
5001 East Bonanza Road, Suite 138-144
Las Vegas, NV 89110
Gentlemen:
In connection with Amendment No. 1 to the the Registration Statement on
Form S-8 (the "Registration Statement") of Hybrid Technologies, Inc., a Nevada
corporation (the "Company"), filed with the Securities and Exchange Commission
in accordance with the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations under the Act, we have been requested by the Company to
furnish our opinion as to the legality of up to 5,000,000 shares of Common
Stock, par value $.001 per share, of the Company (the "Shares"), reserved for
issuance under the Company's 2006 Restricted Stock Plan (Amended) (the "Plan").
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following
documents (collectively, the "Documents"): (i) the Registration Statement on
Form S-8 and Amendment No. 1 to the Registration Statement on Form S-8, (ii) the
Articles of Incorporation of the Company, as amended on or before today's date,
(iii) the By-Laws of the Company, as amended on or before today's date, (iv) the
Plan and (v) those corporate records, agreements and other instruments of the
Company, and all other certificates, agreements and documents, that we have
considered relevant and necessary as a basis for the opinion expressed in this
letter.
In our examination of the Documents, we have assumed, without
independent investigation, the genuineness of all signatures, the enforceability
of the Documents against each party to them, the legal capacity of all
individuals who have executed any of the Documents, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, photostatic, reproduced or conformed
copies of valid existing agreements or other documents and the authenticity of
all these latter documents. As to certain matters of fact, we have relied on
representations, statements or certificates of officers of the Company.
Based upon the above, and subject to the stated assumptions, we are of
the opinion that, when issued in accordance with the terms of the Plan, the
Shares will be duly authorized, validly issued, fully paid and non-assessable.
Please be advised that my opinion is based on Nevada law and applicable
federal laws.
Very truly yours,
/s/ Michael J. Morrison
MICHAEL J. MORRISON, ESQ.
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EX-23.1 OTHERDOC
Document is copied.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
Mason Russell West, LLC, hereby consent to the use of our opinion dated October
21, 2005, on the financial statements and schedules of Hybrid Technologies, Inc.
(formerly Whistler Investments, Inc.) as of July 31, 2005, for filing with
Amendment No. 1 to Hybrid Technologies, Inc. Form S-8.
/s/ Mason Russell West, LLC
------------------------------------
Mason Russell West LLC
Dated: April 26, 2006
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