SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-3
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)
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
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: |_|
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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-
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)]
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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 Not Applicable
Price
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 to Description of Securities
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
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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 ______, 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 may exercise their rights to acquire Common Stock may
occur over an extended period of time up to up to
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May 1, 1997, (the "Class B Expiration Date") in the case of the Class B Warrants
and _________, 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**
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* 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 __________ , 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 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.
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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
(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.
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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 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
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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 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
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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.
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.
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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. Notwithstanding 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 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)
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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, 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.
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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.
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
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<PAGE>
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.
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<PAGE>
TABLE OF CONTENTS
Page
- ----
Available Information...........................................................
Information Incorporated by Reference...........................................
The Company.....................................................................
Certain Risk Factors............................................................
Use of Proceeds ..............................................................
Plan of Distribution............................................................
Description of Securities.......................................................
Legal Matters...................................................................
Experts.........................................................................
Indemnification of Officers and Directors.......................................
-----------------------------------------
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<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).
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<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 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
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<PAGE>
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.
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<PAGE>
YORK RESEARCH CORPORATION
REGISTRATION STATEMENT ON FORM S-3
INDEX TO EXHIBITS
Sequentially
Exhibit Number Description Numbered Page
- -------------- ----------- -------------
4 Warrant Agreement *
5 Opinion of Moses & Singer LLP *
23(a) Consent of Grant Thornton LLP *
23(b) Consent of Moses & Singer LLP
(included in Exhibit 5)
24 Power of Attorney (included in
signature pages forming a part
hereof)
* To be filed by amendment.
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<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 ___ 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
Registra- tion 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, August _, 1996
- -------------------------- President, Chief Executive
Robert M. Beningson Officer and Director
/s/ Michael Trachtenberg Executive Vice President, August _, 1996
- -------------------------- Chief Financial Officer,
Michael Trachtenberg Principal Accounting Officer
and Secretary
/s/ H. Clifton Whiteman Director August _, 1996
- --------------------------
H. Clifton Whiteman
/s/ Stanley Weinstein Director August _, 1996
- --------------------------
Stanley Weinstein
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