SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
____________________
MECHANICAL TECHNOLOGY INCORPORATED
(Exact name of Registrant as Specified in its Charter)
NEW YORK 14-1462255
(State of incorporation) (I.R.S. Employer
Identification No.)
968 ALBANY-SHAKER ROAD
LATHAM, NEW YORK 12110
(Address of principal executive offices)
MECHANICAL TECHNOLOGY INCORPORATED SAVINGS AND RETIREMENT PLAN
(Full title of the plan)
CYNTHIA A. SCHEUER, CHIEF FINANCIAL OFFICER
MECHANICAL TECHNOLOGY INCORPORATED
968 ALBANY-SHAKER ROAD
LATHAM, NEW YORK 12110
(518) 785-2211
(Name and address, and telephone number,
including area code, of agent for service)
Copy to:
CATHERINE S. HILL
CATHERINE S. HILL, PLLC
1 GLOBAL VIEW
TROY, NEW YORK 12180
CALCULATION OF REGISTRATION FEE
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TITLE OF PROPOSED PROPOSED
SECURITIES MAXIMUM MAXIMUM AMOUNT OF
TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED(1) REGISTERED(2) PER SHARE OFFERING PRICE FEE(3)
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[S] [C] [C] [C] [C]
common stock 1,800,000 shares $________ (4) $___________ $________
no par value
per share
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<PAGE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Mechanical Technology Incorporated Savings and Retirement Plan, as the
result of a stock split, stock dividend or similar adjustment of the
outstanding common stock of Mechanical Technology Incorporated pursuant to
Rule 416(a).
(3) Pursuant to Rule 457(h)(2), no filing fee is required with respect to the
interests in the Mechanical Technology Incorporated Savings and Retirement
Plan registered hereunder.
(4) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h).
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Pursuant to Rule 457(h)(2), no filing fee is required with respect to the
interests in the Mechanical Technology Incorporated Savings and Retirement
Plan registered hereunder.
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This registration statement shall become effective automatically upon the
date of filing in accordance with Section 8(a) of the Securities Act of 1933, as
amended, and 17 C.F.R. Section 230.462.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEMS 1 AND 2. PLAN INFORMATION AND REGISTRANT INFORMATION AND EMPLOYEE
PLAN ANNUAL INFORMATION.
The information required by Part I (Items 1 and 2) will be included in
documents sent or given to participants in the Mechanical Technology
Incorporated Savings and Retirement Plan. 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 in reliance on Rule 428.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Mechanical Technology Incorporated
(the "Company") and the Mechanical Technology Incorporated 401(k) Plan (the
"Plan") with the Commission are incorporated herein by reference and made
a part hereof:
1. The Company's latest annual report on Form 10-K dated
December 16, 1998.
2. The Company's quarterly report on Form 10-Q for the period
ended December 25, 1998.
<PAGE>
All documents filed by the Company and the Plan, respectively, pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities 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 documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation requires the Company to indemnify
its Officers and Directors against claims asserted against them in their
capacities as such, including claims under the Securities Act of 1933, to the
fullest extent permitted under the New York Business Corporation Law ("BCL"),
and obligates the Company to reimburse such persons for defense costs, as
incurred. In addition, the Company maintains indemnification insurance
coverage for Directors and Officers, as permitted by Section 726 of the BCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this registration statement are listed in the Exhibit Index
on page ____ of this registration statement, which Exhibit Index is hereby
incorporated by reference.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 offerings.
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;
(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, represents a fundamental
change to the information set forth in this Registration
Statement; and
<PAGE>
(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) do not apply
if the registration statement is on Form S-3 or Form S-8, and 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 Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(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) Filings incorporating subsequent Exchange Act documents by reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Filing of Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy is expressed in the Act
and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
THE REGISTRANT and THE PLAN. Pursuant to the requirements of the Securities
Act of 1933, as amended, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form
S-8 and the Registrant and the Trustees (or other persons who administer the
employee benefit plan) have caused this registration statement to be signed
on their behalf by the undersigned, thereunto duly authorized, in the City of
Latham, State of New York on February ______, 1999.
MECHANICAL TECHNOLOGY INCORPORATED and
MECHANICAL TECHNOLOGY INCORPORATED
SAVINGS AND RETIREMENT PLAN
By: /s/ Cynthia A. Scheuer
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Cynthia A. Scheuer, Chief Financial Officer
And as Plan Administrator
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
SIGNATURE TITLE DATE
/s/ George C. McNamee Chief Executive Officer and Director _________
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George C. McNamee
/s/ Cynthia Scheuer Chief Financial Officer "
- - ------------------------- (Principal Financial and Accounting
Cynthia Scheuer Officer)
/s/ Dale W. Church Director "
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Dale W. Church
/s/ Edward A. Dohring Director "
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Edward H. Dohring
/s/ Alan P. Goldberg Director "
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Alan P. Goldberg
/s/ E. Dennis O'Connor Director "
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E. Dennis O'Connor
/s/ Dr. Walter L. Robb Director "
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Dr. Walter L. Robb
/s/ Dr. Beno Sternlicht Director "
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Dr. Beno Sternlicht
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INDEX TO EXHIBITS
Exhibit Number Description
5.1 Opinion of Catherine S. Hill, Esq.
23.1 Consent of PriceWaterhouseCoopers, LLP
23.2 Consent of Catherine S. Hill, Esq.
included in opinion, filed as Exhibit 5.1
EXHIBIT 5.1
Catherine S. Hill
(518) 285-7586
February 10, 1999
Mechanical Technology Incorporated
968 Albany-Shaker Road
Latham, New York 12110
Ladies and Gentlemen:
We have served as your counsel in connection with the filing by you of
a Registration Statement on Form S-8 with the Securities and Exchange
Commission pursuant to the provisions of the Securities Exchange Act of 1933,
as amended (the "Act"), covering the registration of interest in its Savings
and Retirement Plan and 1,800,000 shares of common stock (the "Securities").
As your counsel, we have reviewed the corporate proceedings ("Corporate
Proceedings") taken and to be taken to authorize the issuance and sale of the
Securities by the Company.
We have examined and are familiar with the Articles of Incorporation of
the Company and its By-laws. We also have examined the form of certificates
representing the Securities and such other documents, records and certificates
of the Company as we consider necessary for the purposes of this opinion.
Based upon such examination and consideration, it is our opinion that:
1. The Company is validly organized and existing under the laws of
the State of New York and has the corporate power to carry on its
present business and is duly qualified to own its properties and
conduct its business in those states where such authorization is
presently required, except where the failure to so qualify does
not have a material adverse effect on the Company;
2. Upon completion of the Corporate Proceedings, the Securities, when
executed, manually or in facsimile, by the proper officers of the
Company and upon receipt of consideration therefor in accordance
with the Corporate Proceedings, will be validly issued, fully paid
and non-assessable subject to the New York Business Corporation
Law.
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We hereby consent to the inclusion of this opinion and the use of our
name in this Registration Statement.
Sincerely,
CATHERINE S. HILL, PLLC
/s/ Catherine S. Hill
Catherine S. Hill
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Mechanical Technology Incorporated and Subsidiaries on Form S-8 (File No. _____)
of our report dated November 6, 1998, on our audits of the consolidated
financial statements and financial statement schedules of Mechanical Technology
Incorporated and Subsidiaries as September 30, 1998 and 1997, and for the years
ended September 30, 1998, 1997 and 1996, which report was included in the
Company's Annual Report on Form 10-K.
PricewaterhouseCoopers LLP
Albany, New York
February 18, 1999
