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Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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)
THE YORK RESEARCH CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
(Full title of the Plan)
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)
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Copy to:
PHILIP S. OLICK, ESQ.
MOSES & SINGER LLP
1301 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6076
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CALCULATION OF REGISTRATION FEE
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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 **
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Common Stock, 250,000 $10.00 $2,500,000 $862.08
$.01 par value shares
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The approximate date of the commencement of sale of the securities covered by
this Registration Statement shall be upon the effectiveness of this Registration
Statement.
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* Estimated solely for purposes of calculating the registration fee pursuant
to Rules 457(c) under the Securities Act of 1933, as amended (the
"Securities Act") on the basis of the Closing price for the Common Stock
reported on the NASDAQ National Market System on September 5, 1996.
** Proposed maximum aggregate offering price x .00034483.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
NOTE: The document(s) containing the information concerning The York
Research Corporation Employee Stock Ownership Plan and Trust, as amended (the
"ESOP"), required by Item 1 of Form S-8 and the statement of availability of
registrant information, ESOP information and other information required by Item
2 of Form S-8 will be sent or given to employees as specified by Rule 428. In
accordance with Rule 428 and the requirements of Part I of Form S-8, such
documents are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424. The registrant shall maintain a
file of such documents in accordance with the provisions of Rule 428. Upon
request, the registrant shall furnish to the Commission or its staff a copy or
copies of all of the documents included in such file.
The Prospectus included in Part I of the Registration Statement which
is being filed with the Commission, conforms to the information required under
Part I of a Form S-3 Registration Statement covering the reoffer and resale of
restricted securities.
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YORK RESEARCH CORPORATION
CROSS REFERENCE SHEET REQUIRED
BY ITEM 501(B) OF REGULATION S-K
FORM S-3
ITEM NUMBER CAPTION IN PROSPECTUS
AND CAPTION ---------------------
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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 Factors
Earnings to Fixed Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Not Applicable
Price
6. Dilution Not Applicable
7. Selling Security Holders Selling Stockholder
8. Plan of Distribution Cover Page of Prospectus; Plan of
Distribution and Selling
Stockholder
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 Directors
for Securities Act Liabilities
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PROSPECTUS
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YORK RESEARCH CORPORATION
250,000 SHARES OF COMMON STOCK
OWNED BY THE YORK RESEARCH CORPORATION EMPLOYEE STOCK OWNERSHIP TRUST
This Prospectus is part of a Registration Statement covering the offer
and sale by the Employee Stock Ownership Trust of York Research Corporation, a
Delaware corporation (the "Company"), of a maximum of 250,000 shares of common
stock, par value, $.01 per share, of the Company (the "Common Stock"). All of
the shares which may be offered for sale by the Employee Stock Ownership Trust
of the Company hereunder are presently issued and outstanding. See "Selling
Stockholder" and "Plan of Distribution".
No person has been authorized by the Company or the Employee Stock
Ownership Trust 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
or the Employee Stock Ownership Trust. Neither the delivery of this Prospectus
nor any sale of the shares of the Common Stock of the Company offered hereunder
by the Employee Stock Ownership Trust 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".
Underwriting
Price to Discounts and Proceeds to
Public Commissions Company
------------- -------------- ----------------
Per Share $10.00* N/A N/A
Total $2,500,000 N/A N/A
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* Based on the closing price for the Common Stock on the NASDAQ National
Market System on September 5, 1996.
INVESTMENT IN THE COMPANY'S COMMON STOCK INVOLVES
CERTAIN RISKS. SEE "CERTAIN RISK FACTORS."
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES NOR HAS THE
COMMISSION OR ANY SUCH STATE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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THE DATE OF THIS PROSPECTUS IS SEPTEMBER 9, 1996
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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 Commission maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. The address of the
Web site is http://www.sec.gov. 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-8 (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.
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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).
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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. 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.
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SELLING STOCKHOLDER
All of the shares of Common Stock covered by this Prospectus have been
issued to The York Research Corporation Employee Stock Ownership Trust (the
"ESOP Trust"), pursuant to The York Research Corporation Employee Stock
Ownership Plan, as amended (the "ESOP"). The ESOP Trust purchased such shares
from the Company in a private transaction in January, 1996 through a demand,
non-interest bearing purchase money loan from the Company, in payment for the
price of the acquired shares of Common Stock in excess of the par value thereof
which was paid in cash. In addition to the 250,000 shares of Common Stock
offered hereby and registered hereunder, as of May 31, 1996, the ESOP Trust
owned 1,280,997 shares of the Company's Common Stock, all of which are already
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and which the ESOP Trust has been selling from time to time.
The ESOP was established to provide eligible employees of the Company
with beneficial ownership of the Common Stock of the Company and is intended to
be a tax-qualified plan, as described in Section 401(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), which satisfies the requirements for an
employee stock ownership plan described in Section 4975(e)(7) of the Code.
Assets of the ESOP Trust are intended to be invested primarily in the Common
Stock of the Company. The ESOP is subject to the requirements of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
H. Clifton Whiteman, who is also a director of the Company, is the
trustee of the ESOP Trust (the "ESOP Trustee") pursuant to a trust agreement (as
the same may be amended from time to time, the "Trust Agreement"). The ESOP
Trustee holds the assets of the ESOP Trust in trust for the benefit of
participants in the ESOP. All contributions to the ESOP Trust are made by the
Company without any deductions from employee participants' paychecks and without
requiring their investment of personal savings. The ESOP Trustee is empowered
under the ESOP and the Trust Agreement to receive and hold contributions and
other assets of the ESOP Trust, incur indebtedness, make payments on ESOP Trust
debt and make distributions to participants in the ESOP in accordance with the
terms thereof. The shares of Common Stock held by the ESOP Trust are allocated
from time to time by the ESOP Trustee to the accounts of eligible employees of
the Company pursuant to the terms and conditions of the ESOP and the Trust
Agreement.
Mr. Whiteman has served as a director of the Company since July, 1991.
From March 1982 through March 1989, Mr. Whiteman served as Executive Vice
President of The Bank of Tokyo Trust Company. Following his retirement in April
1989, he was a consultant to The Bank of Tokyo
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Group in New York City until April 1992. Mr. Whiteman serves on the Board of
Directors of Keene Corporation and Teltec Communications Corp.
A copy of the ESOP and the Trust Agreement have been filed as Exhibits
4(a) and 4(b), respectively, to the Registration Statement. Reference is made
thereto for the full text of the ESOP and the Trust Agreement and the summary
information herein given is subject thereto and qualified in its entirety by
such reference. Copies of the ESOP, the Trust Agreement and the Registration
Statement may be examined at the offices of the Commission (see "Available
Information") or obtained without charge from the Company (see "Information
Incorporated by Reference").
The table below sets forth the number of shares of Common Stock
beneficially owned by the ESOP Trust as of May 31, 1996, the amount to be
offered for the account of the ESOP Trust and the amount of shares of Common
Stock to be owned by the ESOP Trust after completion of this offering. All of
the shares shown as to be owned after completion of Offering are covered by
other registration statements, and may be sold thereunder by Mr. Whiteman and
the ESOP Trust, respectively.
Number of Number of Shares of
Shares of Number of Common Stock
Common Shares of Owned After
Stock Common Offering (and
Beneficially Stock Offered Percentage of Class
Selling Stockholder Owned (1) Hereunder Owned)
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H. Clifton Whiteman 1,646,197 (2) 250,000 (3) 1,396,197(12.2%)
ESOP Trust 1,530,997 (4) 250,000 (4) 1,280,997(11.4%)
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1 Unless otherwise indicated, the named beneficial owner possesses sole
voting and investment power with respect to the shares of Common Stock.
2 Includes 75,200 shares owned directly by Mr. Whiteman; warrants to purchase
40,000 shares of Common Stock; and 1,530,997 shares of Common Stock owned
by the ESOP of which Mr. Whiteman is Trustee.
3 Includes 250,000 shares of Common Stock owned by the ESOP of which Mr.
Whiteman is the Trustee.
4 The shares of Common Stock shown for the ESOP Trust are also included
within the shares of Common Stock beneficially owned and offered by Mr.
Whiteman. (See Footnotes (2) and (3) above).
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USE OF PROCEEDS
Shares of Common Stock covered by this offering may initially be used
as collateral for loans to the ESOP Trust by third parties (which may include
prospective purchasers). All funds so received (net of any direct costs) will
be used to reduce existing purchase money loans payable to the Company by the
ESOP Trust.
As each payment is made to the Company, shares remaining in the ESOP
Trust will be allocated to the accounts of individuals in accordance with Plan
provisions and those shares will continue to be held by the Trustee in
accordance with the Plan for the benefit of the participants.
The Trustee of the ESOP Trust plans to sell shares of Common Stock
from time to time in order to reduce part or eliminate all of the debt incurred.
When all of the debt has been retired through a combination of Company
contributions and sales of shares of Common Stock at a profit to the Plan, the
balance of shares of Common Stock will have been allocated to individual
accounts.
PLAN OF DISTRIBUTION
The shares of Common Stock owned by the Selling Stockholder and
offered hereunder may be sold from time to time by the Selling Stockholder in
the over-the-counter market or otherwise at prices and at terms then prevailing
or at prices related to the then current market price or in negotiated
transactions. The shares of Common Stock may be sold by one or more of the
following methods: (a) private transactions; (b) block trades in which the
broker or dealer so engaged will attempt to sell the shares of Common Stock as
agent but may position and resell a portion of the block as principal to
facilitate the transaction; (c) purchases by a broker or dealer as principal and
sale by such broker or dealer for its account pursuant to this Prospectus; (d)
an exchange distribution in accordance with the rules of such exchange; and (e)
ordinary brokerage transactions and transactions in which the broker solicits
purchasers. In effecting sales, brokers or dealers engaged by the Selling
Stockholder may arrange for other brokers or dealers to participate. Brokers or
dealers will receive commissions or discounts in amounts to be negotiated
immediately prior to the sale. Such brokers or dealers and any other
participating brokers or dealers may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In addition, any
securities covered by this Prospectus which qualify for sale pursuant to Rule
144 or Rule 144A may be sold under Rule 144 or Rule 144A rather than pursuant to
this Prospectus.
Upon the Company being notified by the Selling Stockholder that any
material arrangement has been entered into with broker-dealer for
<PAGE>
the sale of shares of Common Stock through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a broker or
dealer, a supplemental prospectus will be filed, if required, pursuant to Rule
424(c) under the Securities Act, disclosing (i) the name of the participating
broker-dealer(s), (ii) the number of shares of Common Stock involved, (iii) the
price at which such shares of Common Stock were sold, (iv) the commissions paid
or discounts or concessions allowed to such broker-dealer(s), where applicable,
(v) that such broker-dealer(s) did not conduct any investigation to verify the
information set out or incorporated by reference in this Prospectus and (vi)
other facts material to the transaction.
DESCRIPTION OF SECURITIES
COMMON STOCK
The Company is authorized to issue 50,000,000 shares of Common Stock.
On May 31, 1996, approximately 13,462,857 shares of Common Stock were issued and
outstanding.
Each holder of a share of Common Stock is entitled to one vote per
share in the election of the Company's directors and on all other matters to
which stockholders are entitled to vote, subject to prior dividend rights that
may be applicable to any outstanding Class A Common Stock and preferred stock.
The holders of shares of Common Stock are entitled to receive such dividends, if
any, as may be declared from time to time by the Board of Directors in its
discretion from funds legally available therefor. Subject to prior liquidation
rights of any outstanding preferred stock, the holders of Common Stock are
entitled to share in any distribution to stockholders upon the liquidation,
dissolution or winding up of the Company.
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
<PAGE>
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 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.
<PAGE>
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, 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
<PAGE>
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.
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>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There is hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed by York
Research Corporation, a Delaware corporation (the "Company"), with the
Commission:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
February 28, 1996, filed pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (which includes
the financial statements of the Company for such year and the report thereon of
the Company's independent certified public accountants); and
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year covered by the
Annual Report referred to in (a) above.
(c) The description of the Common Stock, $.01 per share par value (the
"Common Stock"), of the Company, which is contained in the registration
statement filed under Section 12 of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13, 14 and
15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing such
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 Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
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 Registration
Statement.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered hereby (I.E., the Company's
Common Stock) is registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article THIRTEENTH of the Company's Certificate of Incorporation
provides that the Company's 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 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 be 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.
On May 16, 1988, the Company amended its Certificate of Incorporation
to take advantage of a recent change to the Delaware General Corporation Law by
adopting Article SEVENTEENTH which 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; however, 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 the Company 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.
<PAGE>
Section 145 of the Delaware General Corporation Law provides that a
corporation 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
completed 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The restricted securities to be reoffered and resold pursuant to this
registration statement were acquired directly from the issuer in private
transactions exempt from registration under Section 4(2) of the Securities Act
of 1933.
ITEM 8. EXHIBITS.
See Index to Exhibits.
ITEM 9. 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 the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represents a fundamental change
in the information set forth in the Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) above do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
<PAGE>
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 the Registration Statement.
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being 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>
YORK RESEARCH CORPORATION
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Sequentially
Exhibit Number Description Numbered Page
4(a) Copy of Employee Stock Ownership Plan *
4(b) Copy of Employee Stock Ownership *
Trust Agreement
5 Opinion of Moses & Singer LLP 22
24(a) Consent of Grant Thornton LLP 23
24(b) Consent of Moses & Singer LLP 22
(included in Exhibit 5)
25 Powers of Attorney (included in 21
signature pages forming a part hereof)
- ---------------------------
* Incorporated by reference from Registration Statement 33-63730.
<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-8 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 1st day of
September 9, 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-8, 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
- --------- -------- ----
/s/ Robert M. Beningson Chairman of the Board, September 9, 1996
- ----------------------- President, Chief Executive
Robert M. Beningson Officer and Director
/s/ Michael Trachtenberg Executive Vice President, September 9, 1996
- ------------------------ Chief Financial Officer,
Michael Trachtenberg Principal Accounting Officer
and Secretary
/s/ Clifton Whiteman Director September 9, 1996
- --------------------
H. Clifton Whiteman
/s/ Stanley Weinstein Director September 9, 1996
- ---------------------
Stanley Weinstein
<PAGE>
EXHIBITS 5 and 24(b)
September 9, 1996
York Research Corporation
280 Park Avenue
Suite 2700 West
New York, New York 10017
Re: Registration Statement on form S-8 (the
"Registration Statement") - The York Research
Corporation Employee Stock Ownership Plan and Trust
---------------------------------------------------
Gentlemen:
We have been acting as your counsel in connection with the preparation
and filing of a Form S-8 Registration Statement with the Securities and Exchange
Commission for the purpose of registering under the Securities Act of 1933, as
amended (the "Act"), 250,000 shares of the Common Stock, par value $.01 per
share ("Common Stock"), of York Research Corporation, a Delaware corporation
(the "Company"), in connection with the sale of the Common Stock by the
Company's Employee Stock Ownership Trust (the "ESOP Trust").
As counsel to the Company, we have examined such corporate records
(including 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 Common Stock issued by the Company and sold to the ESOP Trust is,
and will remain, upon the sale by the ESOP Trust of the Common Stock in
accordance with the terms and provisions of the Registration Statement, validly
issued, fully paid and non-assessable.
We hereby consent to the use and filing of this opinion as an exhibit
to the Registration Statement on Form S-8 and to all references to this firm in
the Registration Statement.
Sincerely yours,
MOSES & SINGER LLP
<PAGE>
EXHIBIT 24(a)
INDEPENDENT AUDITORS' CONSENT
We have issued our reports dated April 30, 1996 accompanying the consolidated
financial statements and schedules of York Research Corporation and subsidiaries
appearing in the 1996 Annual Report on Form 10-K for the year ended February 28,
1996 which are incorporated by reference in this Registration Statement. We
consent to the incorporation by reference in the Registration Statement of the
aforementioned reports and to the use of our name as it appears under the
caption "Experts."
GRANT THORNTON LLP
New York, New York
September 9, 1996
