<PAGE>
REGISTRATION NO. 333-10035
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
YORK RESEARCH CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 06-0608633
(State of incorporation) (I.R.S. Employer Identification Number)
280 PARK AVENUE
SUITE 2700 WEST
NEW YORK, NEW YORK 10017
(212) 557-6200
(Address and Telephone Number of Principal Executive Offices)
ROBERT M. BENINGSON
PRESIDENT
YORK RESEARCH CORPORATION
280 PARK AVENUE
SUITE 2700 WEST
NEW YORK, NEW YORK 10017
(212) 557-6200
(Name, address and telephone number of agent for service)
-----------------------
Copy to:
PHILIP S. OLICK, ESQ.
MOSES & SINGER
1301 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6076
(212) 554-7800
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: / /
<PAGE>
CALCULATION OF REGISTRATION FEE
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Proposed
maximum Proposed
Title of offering maximum Amount of
securities Amount to price per aggregate registration
to be registered be registered share* offering price fee**
- - ---------------- ------------- --------- -------------- ------------
Common Stock, 180,000 $6.50 $1,170,000 $403.46
$.01 par value shares
The prospectus includes an additional 172,486 shares of Common Stock, the
registration fee for which was paid in connection with Registration Statement
No. 33-73616.
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
The Prospectus included in the Registration Statement is for use in
connection with this Registration Statement and Registration Statement
No. 33-73616.
- - -----------------------
* Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(g) under the Securities Act of 1933, as amended (the
"Securities Act") on the basis of the exercise price of 6.50 per share of
Common Stock of the Company issuable under the Class C Warrants (as defined
under "Description of Securities, INFRA).
** [X = (Proposed maximum aggregate offering price) x (.00034483)]
Page 2 of 49 Pages
<PAGE>
YORK RESEARCH CORPORATION
CROSS REFERENCE SHEET REQUIRED
BY ITEM 501(b) OF REGULATION S-K
FORM S-3
ITEM NUMBER AND CAPTION CAPTION IN PROSPECTUS
- - ----------------------- ---------------------
1. Forepart of Registration Facing Page of Registration
Statement and Outside Statement; Cross Reference Sheet
Front Cover Page of and Cover Page of Prospectus
Prospectus
2. Inside Front and Outside Available Information; Information
Back Cover Pages of Incorporated by Reference and
Prospectus Table of Contents
3. Summary Information, Risk The Company; Certain Risk
Factors and Ratio of Earnings Factors
to Fixed Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Not Applicable
6. Dilution Not applicable
7. Selling Security Holders Selling Stockholders
8. Plan of Distribution Cover Page of Prospectus; Plan of
Distribution
9. Description of Securities Description of Securities
to be Registered
10. Interests of Named Experts Legal Matters; Experts
and Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Information Incorporated by
Information by Reference Reference
13. Disclosure of Commission Indemnification of Officers and
Position on Indemnification Director
for Securities Act Liabilities
Page 3 of 49 Pages
<PAGE>
PROSPECTUS
YORK RESEARCH CORPORATION
352,486 SHARES OF COMMON STOCK
York Research Corporation, a Delaware corporation (the "Company"), may
from time to time issue and offer to holders of the Warrants (as hereinafter
defined) up to a maximum of 352,486 shares of its Common Stock, $.01 par value
(the "Common Stock"). The proceeds received by the Company from the sale of the
Common Stock will be used for working capital and general corporate purposes.
All of the shares of Common Stock covered by this Prospectus (such
shares hereinafter referred to as the "Warrant Shares") are issuable upon the
exercise of certain transferable warrants, 172,486 of which previously were
issued pursuant to a Warrant Agreement dated as of November 30, 1993 (the "Class
B Warrant Agreement") between the Company and American Stock Transfer & Trust
Company, as Warrant Agent (the "Warrant Agent"), and 180,000 of which are to be
issued promptly after the date of this Prospectus pursuant to a Warrant
Agreement dated as of August 28, 1996, as amended (the "Class C Warrant
Agreement") between the Company and the Warrant Agent, to those individuals
and entities who purchased the Common Stock of the Company between January 11,
1991 through and including July 24, 1991 and who made claims against the Company
in the Class Action Suit (as hereinafter defined) (the "Class Members"). The
Class B Warrants (the "Class B Warrants") were previously issued to the Class
Members in partial consideration of the settlement of a class action (the
"Settlement") brought on behalf of the Class Members in the United Stated
District Court for the Southern District of New York (the "Court") under the
heading IN RE YORK RESEARCH CORPORATION SECURITIES LITIGATION, Master File Civil
Action No. 91-5040 (LJF) (the "Class Action Suit"). The Settlement was approved
by the Court on May 26, 1993. The Class C Warrants (the "Class C Warrants") are
to be issued to the Class Members in exchange for an extension of the expiration
date of the Class B Warrants to March 31, 1997, and an extension of the time to
post a letter of credit to secure the payment of the surrender price of the
Class B Warrants to December 31, 1996. The letter dated March 10, 1996 (the
"Letter Agreement") providing for the issuance of the Class C Warrants was
approved by the Court on June 4, 1996.
The Warrants provide for (i) an adjustment to the exercise price of
the Warrants based on certain antidilutive factors and (ii) a reduction to the
exercise price of the Warrants at the option of, and upon notice to the holders
of Warrants by, the Company (see "Description of Securities"). The Warrants,
when issued, will be exempt from registration under the Securities Act of 1933,
as amended (the "Securities Act") pursuant to Section 3(a)(10) thereof. In
addition, the Class B Warrants are subject to acceleration and redemption by the
Company under certain circumstances.
The issuance of the Warrant Shares by the Company to those holders of
Warrants who exercise their right to purchase such Warrant Shares, when made,
will be made through the agency of the Warrant Agent under the Class B Warrant
Agreement and the Class C Warrant Agreement (together, the "Warrant Agreement"),
at the exercise prices provided for in the Warrant Agreement. The period of
distribution of the Warrant Shares, as well as the period within which the
holders of the Warrants
Page 4 of 49 Pages
<PAGE>
may exercise their rights to acquire Common Stock may occur over an extended
period of time up to up to May 1, 1997, (the "Class B Expiration Date") in the
case of the Class B Warrants and September 30, 1998 (the "Class C Expiration
Date") in the case of the Class C Warrants. See "DESCRIPTION OF SECURITIES",
"PLAN OF DISTRIBUTION" and "RISK FACTORS".
The Company is paying the expenses of registering the Warrant Shares
under the Securities Act. Such expenses are estimated to be $25,000 in the
aggregate, consisting of filing, legal, accounting, blue sky and other expenses
in connection with this offering. The Company will use its best efforts to keep
the Registration Statement covering the Warrant Shares current until the later
of the Class B Expiration Date and the Class C Expiration Date. If the Company
is required to update this Prospectus during such period, the Company may incur
additional expenses in connection with this offering in excess of the expenses
estimated above.
No person has been authorized by the Company to give any information
or to make any representation other than as contained in this Prospectus, and if
given or made, such information or representation must not be relied upon as
having been authorized by the Company. Neither the delivery of this Prospectus
nor any sale of the shares of the Common Stock of the Company offered hereunder
shall, under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date of this Prospectus.
The Company's Common Stock is listed on the NASDAQ National Market
System under the symbol "YORK". Neither the Class B Warrants nor the Class C
Warrants, when issued, will be listed on the NASDAQ National Market System.
-----------------------------------------
Underwriting
Price to Discounts and Proceeds to
Public Commissions Company
--------- ------------- -----------
Per Share . . . . . . $6.33* N/A $6.33
Total . . . . . . . . $2,230,788 N/A $2,230,788**
- - ------------------------------
* Based on the average of (i) an exercise price of $6.15 per share for
the 172,486 shares of Common Stock of the Company issuable under the
Class B Warrants, and (ii) an exercise price of $6.50 per share for
the 180,000 shares of Common Stock of the Company issuable under the
Class C Warrants.
** Without deducting expenses payable by the Company of approximately
$25,000.
INVESTMENT IN THE COMPANY'S COMMON STOCK INVOLVES CERTAIN RISKS.
SEE "CERTAIN RISK FACTORS."
----------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSIONS NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------------------
THE DATE OF THIS PROSPECTUS IS AUGUST 28, 1996.
Page 5 of 49
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company may be inspected and
copies may be obtained (at prescribed rates) at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and are also available for inspection and copying
(at prescribed rates) at the Regional Offices of the Commission located at 7
World Trade Center, New York, New York 10048, and at Suite 1400, 500 West
Madison Street, Chicago, Illinois 60661-2511. Copies of such material can also
be obtained at prescribed rates by mail addressed to the Public Reference
Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Common Stock of the Company is, and the Warrants,
when issued, will be, traded on the National Market System of the National
Association of Securities Dealers, Inc. ("NASDAQ"). Reports and other
information concerning the Company may be inspected at the office of the
National Association of Securities Dealers, Inc. at 1735 K Street, N.W.,
Washington, D.C. 20006.
The Company has filed a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with the Commission with respect to the shares of Common
Stock offered hereunder. As permitted by the rules and regulations of the
Commission, this Prospectus omits certain information contained in the
Registration Statement. For further information with respect to the Company and
the shares of the Common Stock offered by this Prospectus, reference is made to
the Registration Statement, including the Exhibits thereto. Statements in this
Prospectus as to any document are not necessarily complete, and where any such
document is an Exhibit to the Registration Statement or is incorporated by
reference herein, each such statement is qualified in all respects by the
provisions of such exhibit or other document, to which reference is hereby made,
for a full statement of the provisions thereof. The Registration Statement,
including the exhibits thereto, may be inspected and copied in the manner and at
the locations described above.
Additional updating information with respect to shares of Common Stock
offered hereunder may be provided in the future by means of supplements to this
Prospectus.
Page 6 of 49 Pages
<PAGE>
INFORMATION INCORPORATED BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act, are incorporated by reference in this
Prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended February 28, 1996 and the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended May 31, 1996, all as filed pursuant to Section 13(a) or
15(d) of the Exchange Act;
(b) All other reports filed pursuant to Section 13 or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual Report on
Form 10-K referred to in (a) above (the "Exchange Act Reports");
(c) The Company's definitive proxy statement or information statement,
if any, filed pursuant to Section 14 of the Exchange Act in connection with the
latest annual meeting of its stockholders, and any definitive proxy or
information statements so filed in connection with any subsequent special
meetings of its stockholders (except in each such case for that material
contained in such proxy or information statement which is not deemed to be filed
with the Commission pursuant to its rules and regulations); and
(d) The description of the Common Stock contained in the Company's
registration statement under Section 12 of the Exchange Act and any amendment or
report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company with
the Commission pursuant to Sections 13, 14 and 15(d) of the Exchange Act prior
to the filing of a post-effective amendment which indicates that all shares of
Common Stock offered hereby have been sold or which deregisters all such shares
of Common Stock then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
THE COMPANY WILL PROMPTLY FURNISH WITHOUT CHARGE TO EACH PERSON TO
WHOM THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST OF SUCH PERSON,
THE ANNUAL REPORT TO STOCKHOLDERS FOR THE COMPANY'S LATEST FISCAL YEAR AND A
COPY OF ANY OR ALL OF THE DOCUMENTS DESCRIBED ABOVE, OR OTHERWISE INCORPORATED
HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH DOCUMENTS, UNLESS SUCH EXHIBITS
ARE SPECIFICALLY INCORPORATED BY REFERENCE IN THIS PROSPECTUS). REQUESTS SHOULD
BE ADDRESSED TO YORK RESEARCH CORPORATION, 280 PARK AVENUE, SUITE 2700 WEST, NEW
YORK, NEW YORK 10017, ATTENTION: TREASURER (TELEPHONE: (212) 557-6200).
Page 7 of 49 Pages
<PAGE>
THE COMPANY
The principal executive offices of the Company are located at 280 Park
Avenue, Suite 2700 West, New York, New York 10017, telephone (212) 557-6200.
CERTAIN RISK FACTORS
The purchase of the Common Stock offered hereby involves certain
risks. Prospective purchasers should carefully consider the following risk
factors, as well as other matters set forth elsewhere in this Prospectus, before
making an investment in the Company.
NATURE OF COGENERATION INDUSTRY
The Company is engaged in the planning, developing, constructing and
operation of cogeneration facilities and alternative energy projects.
Cogeneration facilities simultaneously produce electricity and recover thermal
energy from the combustion of clean burning gas and oil. The nature of
cogeneration facilities is such that they require a net investment of money on
the Company's part in the development phase. However, the Company has attempted
to structure its projects to share this financial risk with partners or joint
ventures and as its projects come on line it attempts to structure financing
packages to minimize risk to the Company. However, since there are
uncertainties in the development of each project, and even once in operation,
each project has a limited number of customers, there can be no assurance that
any particular project will be operated or developed successfully. To date,
each of the Company's cogeneration projects has had only one customer (other
than the thermal host) purchasing electricity from the project.
SHARES AVAILABLE FOR FUTURE SALE
As of May 31, 1996, the Company had 13,462,857 shares of Common Stock
outstanding. As of May 31, 1996, 5,984,653 shares of Common Stock are reserved
for issuance in connection with outstanding warrants and stock options
(including 352,486 of the shares offered hereby). As of May 31, 1996, all of
the Company's issued and outstanding shares are currently eligible for public
resale (in some cases subject to compliance with the volume limitations
contained in of Rule 144 under the Securities Act). No precise predictions can
be made as to the effect, if any, that sales of shares or the availability of
shares for sale may have on market prices of the Company's Common Stock from
time to time. Nevertheless, sales of substantial amounts of the Company's
Common Stock in the public market, whether by the Company, or other existing
stockholders, could adversely affect prevailing market prices.
Page 8 of 49 Pages
<PAGE>
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of Warrant
Shares for working capital and general corporate purposes.
PLAN OF DISTRIBUTION
The Company will issue the Warrant Shares to the holders of the
Warrants, through the agency of the Warrant Agent, upon the exercise of the
Warrants by such holders in accordance with the terms of the Warrant Agreement.
See "DESCRIPTION OF SECURITIES".
DESCRIPTION OF SECURITIES
COMMON STOCK
The holders of Common Stock have no preemptive or other subscription
or conversion rights, and there are no redemption provisions with respect to
such shares. All of the outstanding shares of Common Stock, including the
shares offered hereby, are fully paid and non-assessable.
The stockholders of the Company may act upon the affirmative vote of
the holders of a majority of the issued and outstanding shares of the Company
entitled to vote thereon, EXCEPT in the following instances, each of which
requires the affirmative vote of the holders of eighty percent (80%) of the
issued and outstanding shares of the Company entitled to vote: (1) any
amendment to the By-Laws of the Company; and (2) any amendment to the
Certificate of Incorporation of the Company which (a) affects the classification
of the Board of Directors of the Company; (b) provides that directors may be
removed without cause; and (c) amends the Article in the Company's Certificate
of Incorporation which provides for the super majority voting requirements set
forth above.
CLASS A COMMON STOCK
The Company is authorized to issue up to 10,000,000 shares of Class A
Common Stock, $.01 par value per share ("Class A Common Stock"). As of May 31,
1996, no shares of Class A Common Stock had been issued or were outstanding.
Holders of Class A Common Stock are entitled to (i) one one-hundredth
(1/100th) of a vote for each share held; and (ii) the preference to
Page 9 of 49 Pages
<PAGE>
receive a cumulative dividend, declared by the Board of Directors on any other
class or series of shares of common stock, in the aggregate amount of $.20 per
share. All other rights of holders of Class A Common Stock are the same as
holders of Common Stock.
PREFERRED STOCK
The Company is authorized to issue up to 6,000,000 shares of preferred
stock, $.01 par value per share ("Preferred Stock"), in one or more classes and
series, having such voting rights, dividend and liquidation rights and
preferences, redemption, sinking fund and convertibility provisions, and certain
other preferences, rights and provisions permitted in the Certificate of
Incorporation as the Board of Directors may fix in providing for the issuance of
such series without any vote or action by stockholders. As of May 31, 1996, no
shares of Preferred Stock had been issued or were outstanding.
CLASSIFICATION OF DIRECTORS
The Company's Board is divided into three classes of directors: Class
A; Class B; and Class C. Each class is to be a nearly as equal in number as
possible. Directors in each class are elected for a term of three years, and
hold office until the Annual Meeting of Stockholders in the year in which the
term of their office expires and until their successors are qualified. The
Company currently has three directors, one director in each class.
WARRANTS
BACKGROUND: The Shares being offered hereunder are issuable upon the
exercise of the Warrants. The Class B Warrants were previously issued by the
Company to the Class Members pursuant to the Class B Warrant Agreement, and the
Class C Warrants are to be issued by the Company to the Class Members pursuant
to the Class C Warrant Agreement. The Warrants were and are to be issued to the
Class Members in connection with the Settlement and the Letter Agreement. The
Settlement was approved by the Court on May 26, 1993 and provided, inter alia,
for the issuance to the Class Members of 180,000 Warrants (the "Class B
Warrants"), of which 172,486 remain outstanding. The Letter Agreement was
approved by the Court on June 4, 1996 and provides for the issuance to the Class
Members of 180,000 warrants (the "Class C Warrants").
Each Class B Warrant is exercisable for one share of Common Stock at
an exercise price of $6.15 per share. Each Class C Warrant is exercisable for
one share of Common Stock at an exercise price of $6.50
Page 10 of 49 Pages
<PAGE>
per share. The exercise price of the Warrants may also be reduced unilaterally
by the Company, on 30 days notice to holders of the Warrants and the Warrant
Agent.
The Class B Warrants are currently exercisable for Warrant Shares, and
the Class C Warrants will be exercisable for Warrant Shares immediately upon
their issuance and upon the effectiveness of this Registration Statement. The
Class B Warrants expire on the Class B Expiration Date, and the C Warrants
expire on the Class C Expiration Date, subject to certain provisions allowing
the Class B Warrants to be redeemed or accelerated and the Class B Expiration
Date to be extended (as described below).
The Court approved the issuance of the Warrants pursuant to Section
3(a)(10) of the Securities Act. As a consequence of such approval, the
Warrants, when issued by the Company, were exempt from the registration
requirements of the Securities Act by virtue thereof. The Class B Warrants are
listed on NASDAQ and the Company will, at its own cost and expense, list the
Class C Warrants on NASDAQ.
REDEMPTION AND ACCELERATION: The Class B Warrants may be called in
whole or part by the Company at any time, after issuance to the Class Members,
on 30 days notice to the holders of the Class B Warrants and the Warrant Agent,
for a cash payment by the Company to such holders of $11.50 per Warrant.
On the Class B Expiration Date, unless the Class B Warrants have been
previously called or accelerated (as described below), the Warrants may be
exchanged by the holders for $11.50 in cash per Warrant (the "Surrender Price").
The Company may accelerate the Class B Expiration Date upon 90 trading
days notice, provided that (i) the closing price of the Company's Common Stock
on the day prior to the day notice is given is at least $11.50 greater than the
exercise price, as it may be adjusted from time to time, of the Class B Warrants
(the "Acceleration Price"), and (ii) on at least 75 of those 90 trading days the
closing price of the Company's Common Stock continues to be at least equal to
the Acceleration Price. If the price of the Company's Common Stock fails to
reach the Acceleration Price on more than 75 of the 90 trading days, the notice
of acceleration shall be null and void. Notice of acceleration may not be given
unless the closing price of the Company's Common Stock on the NASDAQ has
equalled or exceeded the Acceleration Price on the day prior to the giving of an
acceleration notice by the Company.
Page 11 of 49 Pages
<PAGE>
SECURITY FOR SURRENDER PRICE OF CLASS B WARRANTS: The Company
has agreed to deliver a letter of credit in the face amount of $1,983,589 (the
"Class B Warrant LC") (or, in lieu thereof, $1,983,589 in cash) as security for
the Surrender Price of the Class B Warrants on or prior to December 31, 1996.
EXTENSION OF CLASS B EXPIRATION DATE: In the event neither the Class
B Warrant LC nor sufficient cash to pay the Surrender Price for all the then
outstanding Class B Warrants shall have been delivered at least ten (10) days
prior to the Class B Expiration Date, the Class B Warrants shall not expire but
rather the Class B Expiration Date may be extended (from time to time) in the
sole discretion of the law firms of Milberg Weiss Bershad Hynes & Lerach LLP;
Pomerantz Levy Haudek Block & Grossman; and Bernstein Litowitz Berger & Grossman
LLP, as "Co-Lead Counsel" until such date as enough cash is available to pay the
Surrender Price for all then outstanding Class B Warrants. In the event that
the cash delivered is insufficient to pay the Surrender Price for all then
outstanding Class B Warrants, the Warrant Agent, at the direction of the Class
Members, shall offer to redeem the Warrants pro-rata.
ANTIDILUTION PROVISIONS: The exercise price payable and the number of
Warrant Shares purchasable upon the exercise of each Warrant will be subject to
adjustment in certain events (such adjusted exercise price, the "Adjusted
Exercise Price") including: (a) the issuance of a stock dividend or any other
distribution in shares of Common Stock to holders of Common Stock, (b) the
issuance of rights, options or warrants to holders of Common Stock, without
payment of additional consideration by such holders, entitling them to subscribe
to or purchase shares of Common Stock at a price per share that is lower than
the average of the daily Closing Prices (as defined in the next sentence) of the
Company's Common Stock for the twenty (20) business days prior to the day in
question of Common Stock, or (c) the distribution to holders of Common Stock of
evidences of indebtedness or certain assets, or rights, options or warrants
or convertible or exchangeable securities containing the right to subscribe
for or purchase shares of Common Stock (other than those referred to in (b)
above). "CLOSING PRICE" shall mean with respect to each day on which the
Company's Common Stock is traded on the principal national securities exchange
on which the Common Stock is listed or admitted to trading, the last reported
sales price on such day or, in case no such reported sales price takes place on
such day, the average of the reported closing bid and asked prices. Notwith-
standing the foregoing, in case of any consolidation, merger, sale, lease
or conveyance of the property of the Company to another corporation as an
entirety or substantially as an entirety, the holder of each outstanding Warrant
shall have the right, upon exercise of the Warrant, to the kind and
Page 12 of 49 Pages
<PAGE>
amount of shares of stock and other securities and property (including cash)
receivable by a holder of the number of shares of Common Stock into which such
Warrants were exercisable immediately prior thereto.
PROCEDURE FOR EXERCISE OF WARRANTS: Warrants may be exercised by
surrendering the Warrant certificate to the Warrant Agent at its principal
corporate trust office with a purchase form duly completed and signed by the
warrantholder (which signature, in the case of an assignee of the Warrants,
shall be guaranteed by a bank or trust company satisfactory to the Warrant Agent
or a broker dealer which is a member of a national securities exchange)
indicating the warrantholder's election to exercise all or a portion of the
Warrants evidenced by the certificate. Surrendered Warrants shall be
accompanied by payment of the aggregate exercise price of the Warrants to be
exercised, which payment may be made in the form of cash or in the form of a
bank or certified check (or any combination thereof) equal to the exercise price
or the Adjusted Exercise Price of the Warrants. Upon receipt thereof, the
Warrant Agent shall deliver or cause to be delivered, to or upon the written
order of the exercising warrantholder, a certificate representing the number of
Warrant Shares purchased. If fewer than all of the Warrants evidenced by any
certificate are exercised, the Warrant Agent shall deliver to the exercising
warrantholder a new Warrant certificate representing the unexercised Warrants.
No fractional shares will be issued upon exercise of Warrants but the Company
will pay the cash value of any fractional shares otherwise issuable.
PUBLIC ANNOUNCEMENT: Whenever any notice is required to be sent to
the holders of Warrants, the Company will also make prompt public announcement
of the substance of such notice by news release and by notice to NASDAQ or any
national securities exchange on which the Warrants are then listed for trading.
LEGAL MATTERS
Certain legal matters with respect to the shares of Common Stock
offered hereby are being passed upon for the Company by Moses & Singer LLP, 1301
Avenue of the Americas, New York, New York 10019-6076.
EXPERTS
The financial statements incorporated by reference in this Prospectus
(other than the financial statements contained in any quarterly report on Form
10-Q) have been audited by Grant Thornton LLP, independent certified public
accountants, for the years ended February 28, 1996,
Page 13 of 49 Pages
<PAGE>
February 28, 1995 and February 28, 1994, as indicated in Grant Thornton LLP's
reports with respect thereto, and are incorporated herein in reliance upon
the authority of said firm as an expert in giving said reports.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Article THIRTEENTH of the Company's Certificate of Incorporation
provides that the Company shall indemnify any person against any expenses which
may be imposed upon or reasonably incurred by him in connection with any action,
suit or proceeding in which he may be named as a party defendant by reason of
his being or having been a director or officer of the Company provided that the
right of indemnification shall not extend to any expenses imposed upon or
incurred by him in relation to matters as to which he shall finally be adjudged
to be liable for negligence or misconduct in the performance of his duties as
such director and officer, or to any sum paid by him to the Company in
settlement of an action, suit or proceeding based on his alleged dereliction of
duty.
The Certificate of Incorporation of the Company eliminates or limits
the ability of the Company and its stockholders to recover monetary damages from
a director for breach of his fiduciary duty as a director; but the law does not
permit such provision to eliminate or limit the liability of a director (i) for
any breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of law, (iii) for paying a dividend or approving
a stock repurchase which is illegal under Section 174 of the Delaware General
Corporation Law, (iv) for any transaction from which the director derived an
improper personal benefit, or (v) for an act or omission occurring prior to the
date such provision became effective. The foregoing provision does not change a
director's duty of care, but it does authorize a corporation to eliminate
monetary liability for violations of that duty. In addition, such provision
does not affect the availability of equitable remedies, such as an action to
enjoin or rescind a transaction involving a breach of fiduciary duty.
Section 145 of the Delaware General Corporation Law provides that a
Delaware corporation such as the Company has the power to indemnify its officers
and directors who were or are parties or are threatened to be made parties to
any threatened, pending or contemplated action, suit or proceeding by reason of
the fact that they are officers or directors of the corporation, against
expenses, judgments, fines and amounts paid in settlement incurred in good faith
in connection with such action, suit or proceeding, provided that the officer(s)
or director(s) concerned acted in good faith.
Page 14 of 49 Pages
<PAGE>
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
offered hereunder, the Company 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.
Page 15 of 49 Pages
<PAGE>
TABLE OF CONTENTS
Page
----
Available Information................................................... 3
Information Incorporated by Reference.................................... 4
The Company.............................................................. 5
Certain Risk Factors..................................................... 5
Use of Proceeds ....................................................... 6
Plan of Distribution..................................................... 6
Description of Securities................................................ 6
Legal Matters........................................................... 10
Experts................................................................. 10
Indemnification of Officers and Directors............................... 11
-----------------------------------------
Page 16 of 49 Pages
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth expenses in connection with the
issuance and distribution of the securities being registered hereunder, which
expenses will be paid by the Company. All of the amounts shown are estimates.
Securities and Exchange Commission Registration Fee ................$ 404
Printing .............................................................5,000
Legal and Accounting Fees ...........................................10,000
Blue Sky Fees ........................................................5,000
Miscellaneous .................................................... 4,596
------
Total $25,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The information in the Prospectus under the caption "Indemnification
of Officers and Directors" is incorporated by reference herein.
ITEM 16. EXHIBITS.
The following documents are filed as Exhibits to this Registration
Statement:
Exhibit No. Description
- - ----------- -----------
4 Warrant Agreement.
5 Opinion of Moses & Singer LLP as to the validity of the shares
of Common Stock being registered hereby.
23(a) Consent of Grant Thornton LLP
23(b) Consent of Moses & Singer LLP (contained in their opinion in
Exhibit 5).
24 Power of Attorney (included in the signature page).
Page 17 of 49 Pages
<PAGE>
ITEM 17. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement.
PROVIDED, HOWEVER, that paragraphs (A)(1)(i) and (A)(1)(ii) shall not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, 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
Page 18 of 49 Pages
<PAGE>
to Section 15(d) of the Securities Exchange Act of 1934) 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 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 offered, 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 of 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.
Page 19 of 49 Pages
<PAGE>
YORK RESEARCH CORPORATION
REGISTRATION STATEMENT ON FORM S-3
INDEX TO EXHIBITS
Sequentially
Exhibit Number Description Numbered Page
- - -------------- ----------- -------------
4 Warrant Agreement 19
5 Opinion of Moses & Singer LLP 44
23(a) Consent of Grant Thornton LLP 45
23(b) Consent of Moses & Singer LLP 44
(included in Exhibit 5)
24 Power of Attorney (included in 18
signature pages forming a part
hereof)
Page 20 of 49 Pages
<PAGE>
SIGNATURES
THE REGISTRANT
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-3 and had duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, and State of New York on this 28th day of
August, 1996.
YORK RESEARCH CORPORATION
By: /s/ Robert M. Beningson
------------------------
Robert M. Beningson
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert M. Beningson his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities to sign any
and all amendments (including post-effective amendments) to this registration
statement on Form S-3, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Capacity Date
- - --------- -------- ----
August 28, 1996
/s/ Robert M. Beningson Chairman of the Board,
- - ------------------------ President, Chief Executive
Robert M. Beningson Officer and Director
/s/ Michael Trachtenberg Executive Vice President, August 28, 1996
- - ------------------------ Chief Financial Officer,
Michael Trachtenberg Principal Accounting Officer
and Secretary
/s/ H. Clifton Whiteman Director August 28, 1996
- - ------------------------
H. Clifton Whiteman
/s/ Stanley Weinstein Director August 28, 1996
- - ------------------------
Stanley Weinstein
Page 21 of 49 Pages
<PAGE>
WARRANT AGREEMENT
BETWEEN
YORK RESEARCH CORPORATION
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY
AS WARRANT AGENT
-------------------------
-------------------------
DATED AS OF AUGUST 28, 1996
Page 22 of 49 Pages
<PAGE>
WARRANT AGREEMENT, dated as of August 28, 1996 between YORK RESEARCH
CORPORATION, a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER
& TRUST COMPANY (the "Warrant Agent").
WHEREAS, the Company has entered into a certain Stipulation of
Settlement, dated as of January 15, 1993 (the "Settlement Agreement") with
respect to the action entitled IN RE YORK RESEARCH CORPORATION SECURITIES
LITIGATION, United States District Court, Southern District of New York, Master
File No. 91 Civ. 5040 (LJF) and a certain letter agreement dated March 10, 1996,
(the "Letter Agreement) modifying certain terms of the Settlement Agreement;
WHEREAS, pursuant to the Letter Agreement, the Company proposes to
issue Common Stock Purchase Warrants, as hereinafter described (the "Class C
Warrants" or the "Warrants"), to purchase up to an aggregate of 180,000 fully
paid and nonassessable shares of its Common Stock, par value $.01 per share
("Common Stock"), each Class C Warrant entitling the holder thereof to purchase
one share of Common Stock for an exercise price of $6.50 per share, subject to
adjustment as hereinafter provided (the shares of Common Stock issuable upon
exercise of the Class C Warrants shall be referred to herein as the "Warrant
Shares");
WHEREAS, the Company appoints the Warrant Agent to act on behalf of
the Company, and the Warrant Agent is willing to act, in connection with the
issuance, transfer, exchange, redemption and exercise of Class C Warrants;
NOW, THEREFORE, in consideration of the foregoing and for the purpose
of defining the terms and provisions of the Warrants and the respective rights
and obligations thereunder of the Company and the registered holders of the
Class C Warrants (the "Holders"), the Company and the Warrant Agent hereby agree
as follows:
SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
provisions hereinafter set forth in this Agreement, and the Warrant Agent hereby
accepts such appointment. As used herein, the term "Warrant Agent" shall mean
the Warrant Agent and any successor appointed hereunder.
Page 23 of 49 Pages
<PAGE>
SECTION 2. TRANSFERABILITY AND FORM OF WARRANT.
2.1 REGISTRATION. The Class C Warrants shall be numbered and shall be
registered in a Class C warrant register as they are issued. The Company and
the Warrant Agent shall be entitled to treat the registered holder of any Class
C Warrant as the owner in fact thereof for all purposes and shall not be bound
to recognize any equitable or other claim to or interest in such Class C Warrant
on the part of any other person.
2.2 TRANSFER. The Class C Warrants shall be transferable only on the
books of the Warrant Agent maintained at the principal corporate trust office of
the Warrant Agent upon delivery thereof duly endorsed by the Holder or by his
duly authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer, which endorsement shall be
guaranteed by a bank or trust company satisfactory to the Warrant Agent or a
broker or dealer which is a member of a national securities exchange. Class C
Warrants may be transferred only in whole, so as to allow the Holder of each
Class C Warrant to purchase one full share of Common Stock. In all cases of
transfer by an attorney-in-fact, the original power of attorney, duly approved,
or a copy thereof, duly certified, shall be deposited and remain with the
Warrant Agent. In case of transfer by executors, administrators, guardians or
other legal representatives, duly authenticated evidence of their authority
shall be produced, and may be required to be deposited and remain with the
Warrant Agent in its discretion. Upon any registration of transfer, the Warrant
Agent shall countersign and deliver a new Class C Warrant or Class C Warrants to
the person entitled thereto.
2.3 FORM OF CLASS C WARRANT. The text of the Class C Warrant shall
be substantially as set forth on EXHIBIT A hereto. The purchase form (the
"Purchase Form"), and forms of assignment for the Class C Warrants shall be
substantially as set forth in EXHIBIT B hereto. The price per Warrant Share
shall be inserted in accordance with the provisions hereof and shall be subject
to adjustment upon the occurrence of certain events, all as hereinafter
provided. The Class C Warrants shall be executed on behalf of the Company by an
authorized officer. The signature of any such officer on the Class C Warrants
may be manual or facsimile.
Class C Warrants shall be dated as of the date of countersignature
thereof by the Warrant Agent either upon initial issuance or upon exchange,
substitution or transfer.
Page 24 of 49 Pages
<PAGE>
SECTION 3. COUNTERSIGNATURE OF CLASS C WARRANTS. The Class C
Warrants shall be countersigned by the Warrant Agent and shall not be valid for
any purpose unless so countersigned. Class C Warrants may be countersigned,
however, by the Warrant Agent and may be delivered by the Warrant Agent,
notwithstanding that the persons whose manual or facsimile signatures appear
thereon as proper officers of the Company shall have ceased to be such officers
at the time of such countersignature, issuance or delivery. The Warrant Agent
shall, upon written instructions of an authorized officer of the Company,
countersign, issue and deliver Class C Warrants entitling the Holders thereof to
purchase not more than 180,000 Warrant Shares and shall countersign and deliver
Class C Warrants as otherwise provided in this Agreement.
SECTION 4. EXCHANGE OF CLASS C WARRANT CERTIFICATES. Each Class C
Warrant certificate may be exchanged upon surrender at the principal corporate
trust office of the Warrant Agent for another certificate or certificates
entitling the Holder thereof to purchase a like aggregate number of Warrant
Shares as the certificate or certificates surrendered then entitle such Holder
to purchase. Any Holder desiring to exchange a Class C Class C Warrant
certificate or certificates shall make such request in writing delivered to the
Warrant Agent, and shall surrender, properly endorsed, the certificate or
certificates to be so exchanged. Thereupon, the Warrant Agent shall countersign
and deliver to the person entitled thereto a new Class C Warrant certificate or
certificates, as the case may be, as so requested, in such name or names as such
Holder shall designate and of like tenor to the surrendered Class C Warrant
certificate. No new Class C Warrant certificate entitling the Holder thereof to
purchase fractional shares will be issued.
SECTION 5. TERM OF CLASS C WARRANTS; EXERCISE OF CLASS C WARRANTS.
5.1 TERM OF CLASS C WARRANTS. Subject to the terms of this Agreement,
each Holder shall have the right, which may be exercised commencing on the date
of issuance of the Warrants until 5:00 p.m., New York time, on September 30,
1998 (the "Expiration Date"), to purchase from the Company the number of fully
paid and nonassessable Warrant Shares which the Holder may at the time be
entitled to purchase on exercise of such Class C Warrants.
5.2 EXERCISE OF CLASS C WARRANTS. A Class C Warrant may be exercised
upon surrender to the Warrant Agent at its principal corporate
Page 25 of 49 Pages
<PAGE>
trust office of the certificate or certificates evidencing the Warrants to be
exercised, together with the Purchase Form duly filled in and signed, which
signature, in the case of an assignee of the Class C Warrants, shall be
guaranteed by a bank or trust company satisfactory to the Warrant Agent or a
broker or dealer which is a member of a national securities exchange, and upon
payment to the Warrant Agent for the account of the Company of the applicable
Warrant Price (as defined in Section 9 hereof and subject to adjustment in
accordance with the provisions of Section 10 hereof) for the number of Warrant
Shares in respect of which such Class C Warrants are then exercised. Payment of
the applicable aggregate Warrant Price shall be made in cash or by certified or
official bank check (or by any combination of such methods).
Subject to Section 6 hereof, upon the surrender of Class C Warrants
and payment of the applicable Warrant Price as aforesaid, the Warrant Agent
shall cause to be issued and delivered as soon as practicable to or upon the
written order of the Holder and in such name or names as the Holder may
designate, a certificate or certificates for the number of full Warrant Shares
so purchased upon the exercise of such Class C Warrants. No certificate for
fractional Warrant Shares will be issued, but the Company will pay the cash
value of the fractional share otherwise issuable. If permitted by applicable
law, such certificate or certificates shall be deemed to have been issued and
any person so designated to be named therein shall be deemed to have become a
holder of record of such Warrant Shares as of the date of the surrender of such
Class C Warrants and payment of the Warrant Price, as aforesaid. The rights of
purchase represented by the Class C Warrants shall be exercisable, at the
election of the Holders thereof, either in full or from time to time in
part, and in the event that a certificate evidencing Class C Warrants is
exercised in respect of less than all of the Warrant Shares purchasable on such
exercise at any time prior to the date of expiration of the Class C Warrants, a
new certificate evidencing the remaining Class C Warrant or Class C Warrants
will be issued, of like tenor to the Warrant being surrendered, and the Warrant
Agent is hereby irrevocably authorized to countersign and deliver the required
new Class C Warrant certificate or certificates pursuant to the provisions of
this Section and of Section 3 hereof, and the Company, whenever required by the
Warrant Agent, will supply the Warrant Agent with Class C Warrant certificates
duly executed on behalf of the Company for such purpose.
5.3 COMPLIANCE WITH GOVERNMENT REGULATIONS. The Company covenants
that it will, on or prior to the effectiveness of this Agreement, file a
registration statement with the Securities and Exchange Commission
Page 26 of 49 Pages
<PAGE>
covering all shares of Common Stock required to be reserved for purposes of
exercise of Class C Warrants. The Company will use its best efforts to have
such registration statement declared effective as soon as possible thereafter,
and shall keep such registration statement current and effective until the
Expiration Date or such earlier date on which all of the Class C Warrants shall
have been exercised. In addition, in the event any shares of Common Stock to be
issued upon the exercise of the Class C Warrants require, under any applicable
governing rule or regulation of any national securities exchange, the NASDNMS or
NASDAQ, registration with or approval of any governmental authority, or listing
on any such national securities exchange, the NASDNMS or NASDAQ, before such
shares may be issued upon exercise, the Company will in good faith prior to the
issuance of such shares use its best efforts to cause such shares to be duly
registered, approved or listed with any such governmental authority, such
relevant national securities exchange, the NASDNMS or NASDAQ, as the case may
be. The Company covenants that it will use its best efforts to obtain any
required approvals or registration under applicable state "blue sky" securities
laws for the issuance of the Warrant Shares.
SECTION 6. PAYMENT OF TAXES. The Company will pay all documentary
stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon
the exercise of Class C Warrants; provided, however, that the Company shall not
be required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issue or delivery of any Class C Warrants or
certificates for Warrant Shares in a name other than that of the Holder of such
Class C Warrants, and the Company shall not be required to issue or deliver such
Class C Warrants or certificates for Warrant Shares or proceeds unless or until
the person or persons requesting the issuance thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.
SECTION 7. MUTILATED OR MISSING CLASS C WARRANTS. In case any of the
certificates evidencing the Class C Warrants shall be mutilated, lost, stolen or
destroyed, the Company may in its discretion issue, and the Warrant Agent shall
countersign and deliver in exchange and substitution for and upon cancellation
of the mutilated Class C Warrant certificate, or in lieu of and in substitution
for the Class C Warrant certificate lost, stolen or destroyed, a new Warrant
certificate of like tenor and representing an equivalent right or interest, but
only upon receipt of evidence satisfactory to the Company and the Warrant Agent
of such loss, theft or destruction of such Class C Warrant and an indemnity or
bond, if requested, also
Page 27 of 49 Pages
<PAGE>
satisfactory to them. An applicant for such a substitute Class C Warrant
certificate shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company or the Warrant Agent may prescribe.
SECTION 8. RESERVATION OF WARRANT SHARES; PURCHASE AND CANCELLATION
OF WARRANTS.
8.1 RESERVATION OF WARRANT SHARES. There have been reserved, and the
Company shall at all times keep reserved, out of its authorized Common Stock, a
number of shares of Common Stock sufficient to provide for the exercise of the
rights of purchase represented by the outstanding Class C Warrants. The
transfer agent for the Common Stock (the "Transfer Agent") and every, subsequent
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of any of the rights of purchase aforesaid will be irrevocably
authorized and directed at all times to reserve such number of authorized shares
as shall be required for such purpose. The Company will keep a copy of this
Agreement on file with the Transfer Agent and with every, subsequent transfer
agent for any shares of the Company's capital stock issuable upon the exercise
of the rights of purchase represented by the Class C Warrants. The Warrant
Agent is hereby irrevocably authorized to requisition from time to time from the
Transfer Agent the stock certificates required to honor outstanding Class C
Warrants upon exercise thereof in accordance with the terms of this Agreement.
The Company will supply the Transfer Agent and any such subsequent transfer
agent with duly executed stock certificates for such purposes. The Company will
furnish the Transfer Agent and any such subsequent transfer agent a copy of all
notices of adjustments.
8.2 PURCHASE OF CLASS C WARRANTS BY THE COMPANY. The Company shall
have the right, except as limited by law, other agreements or herein, to
purchase or otherwise acquire Class C Warrants at such times, in such manner and
for such consideration as it may deem appropriate.
8.3 CANCELLATION OF CLASS C WARRANTS. In the event the Company shall
purchase or otherwise acquire Class C Warrants, the same shall thereupon be
delivered to the Warrant Agent and be canceled by it and retired. The Warrant
Agent shall cancel any Class C Warrant surrendered for exchange, substitution,
transfer or exercise in whole or in part.
SECTION 9. WARRANT PRICE. The price per share at which Warrant
Shares shall be purchasable upon exercise of Class C Warrants shall
Page 28 of 49 Pages
<PAGE>
be $6.50. The price per share at which Warrant Shares shall be purchasable, as
provided above with respect to the Class C Warrants and is herein called the
"Warrant Price." The Warrant Price for all Warrants shall be subject to
adjustment as provided in Section 10 hereof.
SECTION 10. ADJUSTMENTS. The Warrant Price and the number and kind
of securities purchasable upon the exercise of each Class C Warrant shall be
subject to adjustment from time to time upon the happening of certain events, as
hereinafter set forth.
10.1 MECHANICAL ADJUSTMENTS.
(a) In case the Company shall pay a stock dividend, or make
another distribution on its shares of Common Stock, in shares of Common Stock,
the Warrant Price in effect immediately prior to the close of business on the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced to the amount determined by
multiplying such Warrant Price by a fraction the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to the close of
business on the date fixed for such determination and the denominator of which
shall be the sum of such number of shares and the total number of shares consti-
tuting such dividend or other distribution, such reduced amount to become
effective immediately after the close of business on the date fixed for such
determination. For purposes of this clause (a), the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company. Such adjustments shall be made successively whenever any event
specified above shall occur.
(b) In case the Company shall issue rights, options or warrants
to all holders of record of its Common Stock entitling them to subscribe for or
purchase shares of Common Stock at a price per share less than the current
market price per share (determined as provided in clause (e) of this Section
10.1) of the Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights, options or warrants, the Warrant
Price in effect immediately prior to the close of business on the date fixed for
such determination shall be reduced to the amount determined by multiplying such
Warrant Price by a fraction the numerator of which shall be the number of shares
of Common Stock outstanding immediately prior to the close of business on the
date fixed for such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of shares of
Common Stock so offered for sub-
Page 29 of 49 Pages
<PAGE>
scription or purchase would purchase at such current market price and the
denominator shall be the number of shares of Common Stock outstanding
immediately prior to the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduced amount to become effective immediately
after the close of business on the date fixed for such determination. For the
purposes of this clause (b), (i) the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company
and (ii) in the case of any rights, options or warrants which expire by their
terms not more than 60 days after the date of issue, sale, grant or assumption
thereof, no adjustment of the Warrant Price shall be made until the expiration
or exercise of all rights, option or warrants, whereupon such adjustment shall
be made in the manner provided in this clause (b), but only with respect to the
shares of Common Stock actually issued pursuant thereto. Such adjustment shall
be made successively whenever any event specified above shall occur. In the
event that any or all rights, options or warrants covered by this clause (b) are
not so issued or expire or terminate before being exercised, the Warrant Price
then in effect shall be appropriately readjusted.
(c) In case outstanding shares of Common Stock shall be
subdivided or reclassified into a greater number of shares of Common Stock, the
Warrant Price in effect immediately prior to the close of business on the day
upon which such subdivision or reclassification becomes effective shall be
proportionately reduced, and, conversely, in case outstanding shares of Common
Stock shall each be combined or reclassified into a smaller number of shares of
Common Stock, the Warrant Price in effect immediately prior to the close of
business on the date upon which such combination or reclassification becomes
effective shall be proportionately increased. Such reduction or increase, as
the case may be, shall become effective immediately after the close of business
on the date upon which such subdivision, combination or reclassification becomes
effective. Such adjustments shall be made successively whenever any event
specified above shall occur.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness or
assets (excluding any dividend or distribution paid in cash and any dividend or
distribution referred to in clause (a) of this Section 10.1) or securities of
the Company other than shares of Common Stock, or rights or warrants to
subscribe for securities of the Company other than shares of Common Stock, the
Warrant Price in effect immediately prior to the close of business of the date
fixed for determination of stockholders entitled to
Page 30 of 49 Pages
<PAGE>
receive such dividend or distribution shall be reduced to the amount determined
by multiplying such Warrant Price by a fraction of which the numerator shall be
the current market price per share (determined as provided in clause (e) of this
Section 10.1) of the Common Stock on the date fixed for such determination, less
the then fair market value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive) of the portion of the assets
or evidences of indebtedness or rights or warrants so distributed applicable to
one share of Common Stock and the denominator shall be such current market price
per share of the Common Stock, such adjustment to become effective immediately
after the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution. Such adjustments shall be
made successively whenever any event specified above shall occur.
(e) For purposes of any computation under clauses (b) and (d) of
this Section 10.1, the current market price per share of Common Stock on any
date shall be deemed to be the average of the daily Closing Prices (as defined
in Section 5.1 hereof) of the Common Stock for the twenty (20) business days
prior to the day in question.
(f) The Company may make such reduction in the Warrant Price, in
addition to those required by clauses (a), (b), (c), or (d) of this Section
10.1, as it considers to be advisable in order that any event treated for
federal income tax purposes as a dividend of stock or stock rights shall not be
taxable to the recipients.
(g) The Company, in its discretion, may elect to reduce the
Warrant Price in effect for all issued and outstanding Class C Warrants on
thirty (30) days notice to the Warrant Agent and the registered Holders of all
of the issued and outstanding Class C Warrants. Prior to issuance of any of the
Class C Warrants, the Company, in its discretion, may elect to reduce the
Warrant Price for all Class C Warrants to be issued under this Agreement on
thirty (30) days notice to the Plaintiffs' Lead Counsel.
(h) In any case in which this Section 10 shall require that any
adjustment in the Warrant Price be made effective as of immediately after a
record date for a specified event, the Company may elect to defer until the
occurrence of the event the issuing to the Holder of any Class C Warrant
exercised after that record date of the shares of Common Stock and other capital
stock of the Company, if any, issuable upon the exercise over and above the
shares of Common Stock and other capital stock of the Company, if any, issuable
upon the exercise on the basis
Page 31 of 49 Pages
<PAGE>
of the Warrant Price in effect prior to such adjustment; provided, however, that
the Company shall deliver to the Holder a due bill or other appropriate
instrument evidencing the Holder's right to receive such additional shares upon
the occurrence of the event requiring such adjustment.
(i) Subject to the provisions of Section 11 hereof, upon each
adjustment of the Warrant Price pursuant to this Section, each Class C Warrant
shall thereupon evidence the right to purchase that number of shares of Common
Stock (calculated to the next lowest integral number of shares) obtained by
multiplying the number of shares of Common Stock purchasable immediately prior
to such adjustment upon exercise of the Class C Warrant by the Warrant Price in
effect immediately prior to such adjustment and dividing the product so obtained
by the Warrant Price in effect immediately after such adjustment.
10.2 REORGANIZATIONS. ETC. In case of any capital reorganization or
reclassification of the Common Stock of the Company or any consolidation of the
Company with, or merger of the Company with or into, any other company, or in
case of any sale or transfer of all or substantially all of the assets of the
Company, the holder of Class C Warrants shall receive upon such exercise the
kind and amount of shares of stock and other securities and property (including
cash) receivable upon such reorganization, reclassification, consolidation,
merger, sale or transfer by a holder of the number of shares of Common Stock of
the Company into which such Class C Warrant so exercised might have been
exercised immediately prior to such reorganization, reclassification,
consolidation, merger, sale or transfer, subject to adjustments which, for
events subsequent to the effective date of such reorganization,
reclassification, consolidation, merger or sale or transfer, shall be on terms
as nearly equivalent as practicable to the adjustments provided for in this
Section 10.2. No interest shall be paid on any cash to which a Holder shall be
entitled after any such adjustment nor shall any interest or dividend accrue on
any debt or equity security prior to its date of issuance upon exercise of a
Class C Warrant. The above provisions of this Section 10.2 shall similarly
apply to successive reorganizations, reclassification, consolidations, mergers,
sales, or transfers.
10.3 NOTICE OF ADJUSTMENT. Whenever the Warrant Price or the number
or kind of securities purchasable upon the exercise of a Class C Warrant is
adjusted, as herein provided, the Company shall cause the Warrant Agent promptly
to mail by first class, postage prepaid, to each Holder, notice of such
adjustment or adjustments and shall deliver to the Warrant Agent a certificate
setting forth the Warrant Price after such
Page 32 of 49 Pages
<PAGE>
adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was made.
Such certificate shall be conclusive evidence of the correctness of such
adjustment. The Warrant Agent shall be entitled to rely on such certificate and
shall be under no duty or responsibility with respect to any such certificate,
except to exhibit the same, from time to time, to any Holder desiring an
inspection thereof during reasonable business hours. The Warrant Agent shall
not at any time be under any duty or responsibility to any Holders to determine
whether any facts exist which may require any adjustment of the Warrant Price or
other stock or property purchasable on the exercise thereof, or with respect to
the nature or extent of any such adjustment when made, or with respect to the
method employed in making such adjustment.
10.4 PUBLIC ANNOUNCEMENTS. Whenever any notice is required to be sent
to Holders hereunder, the Company will also make prompt public announcement of
the substance of such notice by news release and by notice to any national
securities exchange or NASDAQ on which the warrants are then listed for trading.
10.5 STATEMENT ON CLASS C WARRANTS. Irrespective of any adjustments
in the Warrant Price or the number or kind of securities purchasable upon the
exercise of the Class C Warrants, Class C Warrants theretofore or thereafter
issued need not be amended or replaced, but certificates thereafter issued shall
bear an appropriate legend or other notice of any adjustments.
SECTION 11. NO FRACTIONAL INTERESTS. No Class C Warrant entitling
the Holder to purchase fractional interests in Warrant Shares will be issued.
SECTION 12. NO RIGHTS AS STOCKHOLDERS; NOTICE TO HOLDERS. Nothing
contained in this Agreement or in any of the Class C Warrants shall be construed
as conferring upon the Holders or their transferees the right to vote or to
receive dividends or to consent or to receive notice as stockholders in respect
of any meeting of stockholders for the election of directors of the Company or
any other matter, or any rights whatsoever as stockholders of the Company,
provided however, that the Company shall send to the Warrant Holders all
quarterly and annual statements which are sent to its stockholders concurrently
with sending such reports to the stockholders. If, however, at any time prior
to the expiration of the Class C Warrants and prior to their exercise, any of
the following events shall occur:
Page 33 of 49 Pages
<PAGE>
(a) the Company shall declare any dividend payable in any
securities upon its share of Common Stock or make any distribution (other
than a cash dividend) to the holders of its shares of Common Stock; or
(b) the Company shall offer to the holders of its shares of
Common Stock any securities convertible into or exchangeable for shares of
Common Stock or any right to subscribe for or purchase any shares of
capital stock or any other rights; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation, merger, sale, transfer or
lease of all or substantially all of its property, assets, and business as
an entirety) shall be proposed; or
(d) any capital reorganization or reclassification of the Common
Stock of the Company (other than a subdivision or combination of its
outstanding shares of Common Stock), or of any consolidation or merger to
which the Company is a party and for which approval of any stockholders of
the Company is required, or of the sale, transfer or lease of all or
substantially all of the assets of the Company;
then in any one or more of said events the Company shall give notice in writing
of such event to the Warrant Agent and the Warrant Agent shall give notice to
the Holders as provided in Section 18 hereof, such giving of notice to be
completed at least 20 days prior to the date fixed as a record date or the date
of closing the transfer books for the determination of the stockholders entitled
to such dividend, distribution, or subscription rights, or for the determination
of stockholders entitled to vote on such proposed dissolution, liquidation or
winding up. Such notice shall specify such record date or the date of closing
the transfer books, as the case may be.
SECTION 13. DISPOSITION OF PROCEEDS ON EXERCISE OF CLASS C WARRANTS:
INSPECTION OF WARRANT AGREEMENT. The Warrant Agent shall account promptly to
the Company with respect to Class C Warrants exercised and concurrently pay to
the Company all monies received by the Warrant Agent for the purchase of the
Warrant Shares through the exercise of such Class C Warrants.
The Warrant Agent shall keep copies of this Agreement and any notices
given or received hereunder available for inspection by the Holders
Page 34 of 49 Pages
<PAGE>
during normal business hours at its principal office. The Company shall supply
the Warrant Agent from time to time with such number of copies of this Agreement
as the Warrant Agent may request.
SECTION 14. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT
AGENT. Any corporation into which the Warrant Agent may be merged or with which
it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Warrant Agent
under the provisions of Section 16 hereof. In case at the time such successor
to the Warrant Agent shall succeed to the agency created by this Agreement, any
of the Warrants shall have been countersigned but not delivered, any such
successor to the Warrant Agent may adopt the countersignature of the original
Warrant Agent and deliver such Class C Warrants so countersigned; and in case at
that time any of the Class C Warrants shall not have been countersigned, any
successor to the Warrant Agent may countersign such Class C Warrants either in
the name of the predecessor Warrant Agent or in the name of the successor
Warrant Agent; and in any such cases Class C Warrants shall have the full force
provided in the Class C Warrants and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Class C Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignatures under its prior
name and deliver such Class C Warrants so countersigned; and in case at that
time any of the Class C Warrants shall not have been countersigned, the Warrant
Agent may countersign such Class C Warrants either in its prior name or in its
changed name; and in all such cases such Class C Warrants shall have the full
force provided in the Warrants and in this Agreement.
SECTION 15. CONCERNING THE WARRANT AGENT. The Warrant Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the Holders, by
their acceptance of Class C Warrants, shall be bound.
15.1 CORRECTNESS OF STATEMENTS. The statements contained herein and
in the Class C Warrants shall be taken as statements of the Company and the
Warrant Agent assumes no responsibility for the
Page 35 of 49 Pages
<PAGE>
correctness of any of the same except such as describe the Warrant Agent or
action taken by it. The Warrant Agent assumes no responsibility with respect to
the distribution of the Class C Warrants except as herein otherwise provided.
15.2 BREACH OF COVENANTS. The Warrant Agent shall not be responsible
for any failure of the Company to comply with any of the covenants contained in
this Agreement or in the Class C Warrant to be complied with by the Company.
15.3 RELIANCE ON COUNSEL. The Warrant Agent may consult at any time
with legal counsel satisfactory to it (who may be counsel for the Company) and
the Warrant Agent shall incur no liability or responsibility to the Company or
to any Holder in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of such
counsel.
15.4 PROOF OF ACTIONS TAKEN. Whenever in the performance of its
duties under this Agreement the Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the Company prior
to taking or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed
conclusively to be proved and established by a certificate signed by an officer
of the Company and delivered to the Warrant Agent; and such certificate shall be
full authorization to the Warrant Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
15.5 COMPENSATION AND INDEMNIFICATION. The Company agrees to pay the
Warrant Agent reasonable compensation at its customary rate for all services
rendered by the Warrant Agent in the performance of its duties under this
Agreement, to reimburse the Warrant Agent for all expenses, taxes and govern-
mental charges and other charges of any kind and nature reasonably incurred by
the Warrant Agent in the performance of its duties under this Agreement, and to
indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and reasonable counsel fees, for
anything done or omitted by the Warrant Agent in the performance of its duties
under this Agreement except as a result of the Warrant Agent's gross negligence
or bad faith. In connection with such indemnification, the Company shall be
entitled to conduct any litigation and shall only be required to pay the
reasonable costs and fees of one counsel selected by the Company. The Warrant
Agent will cooperate in the defense
Page 36 of 49 Pages
<PAGE>
of any such action and will not settle such action without the consent of
the Company.
15.6 OTHER TRANSACTIONS IN SECURITIES OF COMPANY. The Warrant Agent
and any stockholder, director, officer or employee of the Warrant Agent may buy,
sell or deal in any of the Class C Warrants or other securities of the Company
or become pecuniarily interested in any transaction in which the Company may be
interested or contract with or lend money to the Company or otherwise act as
fully and freely as though the Warrant Agent was not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any legal entity including, without
limitation, acting as a lender to the Company or an affiliate thereof.
15.7 LIABILITY OF WARRANT AGENT. The Warrant Agent shall act
hereunder solely as the agent of the Company and its duties shall be determined
solely by the provisions hereof. The Warrant Agent shall not be liable for
anything which it may do or refrain from doing in connection with this Agreement
except for its own negligence or bad faith.
15.8 RELIANCE ON DOCUMENTS. The Warrant Agent will not incur any
liability or responsibility to the Company or to any Holder for any action taken
in reliance on any notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument reasonably believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties.
15.9 VALIDITY OF AGREEMENT. The Warrant Agent shall not be under any
responsibility in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Warrant Agent) or in
respect of the validity and execution of any Class C Warrant (except its
countersignature thereof); nor shall the Warrant Agent by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any Warrant Shares (or other stock) to be issued pursuant to this
Agreement or any Class C Warrant, or as to whether any Warrant Shares (or other
stock) will, when issued, be validly issued, fully paid and nonassessable, or as
to the Warrant Price or the number or amount of Warrant Shares or other
securities or other property issuable upon exercise of any Class C Warrant.
15.10 INSTRUCTIONS FROM COMPANY. The Warrant Agent is hereby
authorized and directed to accept instructions with respect to the
Page 37 of 49 Pages
<PAGE>
performance of its duties hereunder from the Chairman of the Board, the
President, any Vice Chairman of the Board, or any Executive, Senior or other
Vice President of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer or officers. With respect to those provisions
of this Agreement which authorize the Warrant Agent to accept instructions from
Plaintiffs' Lead Counsel, the Warrant Agent is hereby authorized and directed to
accept such instructions from any partner thereof and shall not be liable for
any action taken or suffered to be taken by it in good faith in accordance with
such instructions.
SECTION 16. CHANGE OF WARRANT AGENT. The Warrant Agent may resign
and be discharged from,its duties under this Agreement by giving to the Company
60 days' notice in writing. The Warrant Agent may be removed by like notice to
the Warrant Agent from the Company. If the Warrant Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by any Holder (who shall with such notice submit
his Class C Warrant for inspection by the Company), then any Holder or Co-Lead
Counsel may apply to any court of competent jurisdiction for the appointment of
a successor to the Warrant Agent. Any successor warrant agent, whether
appointed by the Company or such a court, shall be a bank or trust company, in
good standing, incorporated under the laws of the United States of America or
any state thereof and having at the time of its appointment as Warrant Agent a
combined capital and surplus of at least $100,000,000. After appointment, the
successor warrant agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former warrant agent shall deliver and transfer to
the successor warrant agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Failure to file any notice provided for in this Section 16,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Warrant Agent or the appointment of the successor
warrant agent, as the case may be. In the event of such resignation or removal,
the successor warrant agent shall mail, by first class mail, postage prepaid, to
each Holder, written notice of such removal or resignation and the name and
address of such successor warrant agent.
Page 38 of 49 Pages
<PAGE>
SECTION 17. IDENTITY OF TRANSFER AGENT. Forthwith upon the
appointment of any subsequent transfer agent for the Common Stock, or any other
shares of the Company's capital stock issuable upon exercise of the Class C
Warrant, the Company will file with the Warrant Agent a statement setting forth
the name and address of such subsequent transfer agent.
SECTION 18. NOTICES. Any notice pursuant to this Agreement by the
Company or by any Holder to the Warrant Agent, or by the Warrant Agent or by any
Holder to the Company, shall be in writing and shall be delivered in person or
by facsimile transmission, or mailed first class, postage prepaid (a) to the
Company at its offices at 280 Park Avenue, New York, New York 10017; or (b) to
the Warrant Agent at 40 Wall Street, New York, New York 10005. Each party
hereto may from time to time change the address to which notices to it are to be
delivered or mailed hereunder by notice to the other party. In the event the
Warrant Agent shall change its address, the Warrant Agent shall mail, by first
class mail, postage prepaid to each holder, written notice of such change of
address.
Any notice mailed pursuant to this Agreement by the Company or the
Warrant Agent to the Holders shall be in writing and shall be mailed first
class, postage prepaid, or otherwise delivered, to such Holders at their
respective addresses on the books of the Warrant Agent and shall be deemed given
upon the date of mailing. Any notice requested by any other party may be
dispatched in the discretion of the Warrant Agent, but at no expense to the
Warrant Agent or the Company.
SECTION 19. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any Holder, but with the consent of Co-Lead Counsel, in order to
cure any ambiguity or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Warrant Agent may deem necessary or desirable, which
shall not be inconsistent with the provisions of the Warrants and which shall
not adversely affect the interest of the Holders. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement in any other
respect with the written consent of the Holders of not less than a majority of
the Class C Warrants then outstanding; PROVIDED, HOWEVER, that no change in the
number or nature of the securities purchasable upon the exercise of any Class C
Warrant, or increase in the Warrant Price of any Class C Warrant, or
Page 39 of 49 Pages
<PAGE>
acceleration of the Expiration Date of any Class C Warrant, shall be made
without the written consent of the Holder of such Class C Warrant, other than
such changes as are specifically prescribed by this Agreement as originally
executed.
SECTION 20. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 21. APPLICABLE LAW. This Agreement and each Class C Warrant
issued hereunder shall be governed by and construed in accordance with the laws
of the State of New York applicable to contracts made and to be performed within
such State, without giving effect to principles of conflicts of laws. The
parties consent to the exclusive jurisdiction of the state and federal courts
located in New York, New York, in all cases arising out of this Agreement or the
subject matter thereof, and to the service of process of such courts.
SECTION 22. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent, and the Holders any legal or equitable right, remedy or claim
under this Agreement; this Agreement shall be for the sole and exclusive benefit
of the Company, the Warrant Agent and the Holders of the Class C Warrants.
SECTION 23. COUNTERPARTS. This Agreement may be executed in
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
SECTION 24. CAPTIONS. The captions of the Sections and subsections
of this Agreement have been inserted for convenience only and shall have no
substantive effect.
Page 40 of 49 Pages
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first above written.
YORK RESEARCH CORPORATION
By:
---------------------------------
Robert M. Beningson, President
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:
---------------------------------
Joseph L. Wolf, Vice President
Page 41 of 49 Pages
<PAGE>
EXHIBIT A
VOID AFTER 5:00 P.M. NEW YORK TIME, SEPTEMBER 30, 1998
No. Warrants to Purchase
----------------------
Shares of Common Stock
YORK RESEARCH CORPORATION
CLASS C
COMMON STOCK PURCHASE WARRANTS
This certifies that for value received, _______________ or registered
assigns (the "Holder"), is entitled to purchase from York Research Corporation,
a Delaware corporation (the "Company"), at any time commencing on the date of
issuance of this Warrant until 5:00 p.m., New York time, on September 30, 1998
at the purchase price of $6.50 per share (the "Warrant Price"), the number of
fully paid and nonassessable shares of Common Stock par value $.01 per share, of
the Company ("Common Stock"), shown above. The Warrant Price of the Class C
Common Stock Purchase Warrants of the Company (the "Class C Warrants") and the
number and kind of securities purchasable upon the exercise of each Class C
Warrant are subject to adjustment from time to time as set forth in the Warrant
Agreement between the Company and American Stock Transfer & Trust Company, as
Warrant Agent, dated as of August 28, 1996 (the "Warrant Agreement").
Class C Warrants may be exercised in whole or in part (but only for
full shares of Common Stock) by presentation of this Class C Warrant Certificate
together with a Purchase Form duly executed, which signature shall be guaranteed
by a bank or trust company satisfactory to American Stock Transfer & Trust
Company or its successor as Warrant Agent under the Warrant Agreement (the
"Warrant Agent"), or by a broker or dealer which is a member of a national
securities exchange, and simultaneous payment of the Warrant Price at the
corporate trust office of the Warrant
Page 42 of 49 Pages
<PAGE>
Agent. Payment of such price shall be made at the option of the Holder hereof
in cash or by certified or official bank check. As provided in the Warrant
Agreement, the Warrant Price and the number or kind of shares which may be
purchased upon the exercise of the Class C Warrants evidenced by this Class C
Warrant Certificate are, upon the happening of certain events, subject to
modification and adjustment.
This Class C Warrant Certificate is issued under and in accordance
with the Warrant Agreement and is subject to the terms and provisions contained
in the Warrant Agreement, to all of which the Holder of this Class C Warrant
Certificate by acceptance hereof consents. A copy of the Warrant Agreement may
be obtained by the Holder hereof upon written request to the Company. The
Warrant Agreement may be amended in accordance with its terms, and amendments
that do not adversely affect the Holders of Class C Warrants may be made without
their consent.
Upon any partial exercise of the Class C Warrants evidenced by this
Class C Warrant Certificate, there shall be countersigned and issued to the
Holder hereof a new Class C Warrant Certificate in respect of the shares of
Common Stock as to which the Class C Warrants evidenced by this Class C Warrant
Certificate shall not have been exercised. This Class C Warrant Certificate may
be exchanged at the office of the Warrant Agent by surrender of this Class C
Warrant Certificate properly endorsed either separately or in combination with
one or more other Class C Warrant Certificates for one or more new Class C
Warrant Certificates evidencing the right of the Holder thereof to purchase the
same aggregate number of shares as were purchasable on exercise of the Class C
Warrants evidenced by the Class C Warrant Certificate or Certificates exchanged.
No fractional shares will be issued upon the exercise of any Class C Warrant but
the Company will pay the cash value of any fractional shares otherwise issuable.
This Class C Warrant Certificate is transferable at the office of the Warrant
Agent in the manner and subject to the limitations set forth in the Warrant
Agreement.
The Holder hereof may be treated by the Company, the Warrant Agent,
and all other persons dealing with this Class C Warrant Certificate as the
absolute owner hereof for any purpose and as the person entitled to exercise the
rights represented hereby, or to the transfer hereof on the books of the
Company, any notice to the contrary notwithstanding, and until such transfer on
such books, the Company may treat the Holder hereof as the owner for all
purposes.
Page 43 of 49 Pages
<PAGE>
Neither the Class C Warrants nor this Class C Warrant Certificate
entitle any Holder hereof to any of the rights of a stockholder of the Company,
except as otherwise set forth in the Warrant Agreement.
This Class C Warrant Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Warrant Agent.
Dated: YORK RESEARCH CORPORATION
By:
--------------------------
Name:
Title:
Countersigned: AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:
--------------------------
Name:
Title:
Page 44 of 49 Pages
<PAGE>
EXHIBIT B
PURCHASE FORM
(To be executed upon exercise of
a Class C Warrant)
TO YORK RESEARCH CORPORATION
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the attached Class C Warrant Certificate for, and to
purchase thereunder, ___________ shares of Common Stock, as provided for
therein, and tenders herewith payment of the purchase price in full in the form
of cash or a certified or official bank check in the amount of $_________.
Please issue a certificate or certificates for such shares of Common
Stock in the name of:
Name
-----------------------------
-----------------------------
-----------------------------
-----------------------------
(Please Print Name, Address
and Social Security No.)
Signature
------------------------
THE SIGNATURE TO THIS PURCHASE FORM MUST CORRESPOND TO THE NAME AS WRITTEN
UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED
BY AN ELIGIBLE INSTITUTION (AS DEFINED IN RULE 17Ad-15 UNDER THE SECURITIES
EXCHANGE ACT OF 1934) WHICH MAY INCLUDE A COMMERCIAL BANK, TRUST COMPANY,
SAVINGS ASSOCIATION, CREDIT UNION OR A MEMBER FIRM OF THE AMERICAN STOCK
EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR MIDWEST STOCK
EXCHANGE.
Page 45 of 49 Pages
<PAGE>
And, if said number of shares shall not be all the shares purchasable
under the within Class C Warrant Certificate, a new Class C Warrant Certificate
is to be issued in the name of said undersigned for the balance remaining of the
shares purchasable thereunder.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as
tenants in common
UNIV GIFT MIN ACT (Cust) Custodian for
---------------------------
(Minor) under Uniform Gifts to Minors Act (State)
- - ---------------- --------------
Additional abbreviations may also be used though not in the above
list.
Page 46 of 49 Pages
<PAGE>
ASSIGNMENT
(To be executed only upon assignment of
Class C Warrant Certificate)
For value received,
--------------------------------------------------
hereby sells, assigns and transfers unto (Name)
---------------------------------------
(Address) (Social Security or other
- - --------------------------------------------------------------------------------
identifying number of Assignee) the within Class C Warrant
- - -----------------------------------------------------
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint
attorney, to transfer said on the books of the
- - ----------------------------
within-named Company, with full power of substitution in the premises.
-----------------------------------
THE SIGNATURE TO THIS ASSIGNMENT FORM MUST CORRESPOND TO THE NAME AS
WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE
GUARANTEED BY AN ELIGIBLE INSTITUTION (AS DEFINED IN RULE 17Ad-15 UNDER THE
SECURITIES EXCHANGE ACT OF 1934) WHICH MAY INCLUDE A COMMERCIAL BANK, TRUST
COMPANY, SAVINGS ASSOCIATION, CREDIT UNION OR A MEMBER FIRM OF THE AMERICAN
STOCK EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR MIDWEST
STOCK EXCHANGE.
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip)
Dated:
-------------------------------
Page 47 of 49 Pages
<PAGE>
August 28, 1996
York Research Corporation
280 Park Avenue
Suite 2700 West
New York, New York 10017
Re: Registration Statement on FORM S-3 No. 333-10035
(The "Registration Statement")
------------------------------------------------
Gentlemen:
We have been acting as your counsel in connection with the preparation
and filing of a Form S-3 Registration Statement with the Securities and Exchange
Commission for the purpose of registering under the Securities Act of 1933, as
amended (the "Act"), 180,000 shares (the "Shares") of the Common Stock, par
value $.01 per share of York Research Corporation, a Delaware corporation (the
"Company") issuable upon exercise of the Class C Warrants (the "Warrants).
As counsel to the Company, we have examined such corporate records
(including an executed copy of the Registration Statement and the Exhibits
thereto), such documents and such questions of law as we have considered
necessary or appropriate for the purposes of this opinion. In all such
examinations, we have assumed the genuineness of all signatures on original
documents and the conformity to originals or certified documents of all copies
submitted to us as conformed, photostat or other copies. In passing upon
certain corporate records and documents of the Company, we have necessarily
assumed the correctness and completeness of the statements made or included
therein by the Company, and we express no opinion thereon.
Based on and in reliance of the foregoing, we advise you that in our
opinion the Shares, when issued by the Company for the exercise price provided
in and otherwise in accordance with the terms and provisions of the Warrants
will be validly issued, fully paid and non-assessable.
All capitalized terms used herein without definition shall have the
meanings ascribed thereto in the Registration Statement.
We hereby consent to the use and filing of this opinion as an exhibit
to the Registration Statement on Form S-3 and to all references to this firm in
the Registration Statement.
Sincerely yours,
MOSES & SINGER LLP
Page 48 of 49
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated April 30, 1996 accompanying the consolidated
financial statements of York Research Corporation and subsidiaries appearing in
the 1996 Annual Report of the Company to its shareholders included in the Annual
Report on Form 10-K for the year ended February 28, 1996, which is incorporated
by reference in this Registration Statement. We consent to the incorporation by
reference in the Registration Statement of the aforementioned report and to the
use of our name as it appears under the caption "Experts."
GRANT THORNTON LLP
New York, New York
August 23, 1996
Page 49 of 49 Pages
