As filed with the Securities and Exchange Commission on September 18, 1998.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
ENERGY RESEARCH CORPORATION
(Exact name of registrant as specified in its charter)
New York 06-0853042
- ----------------------- ---------------------------------
(State of Incorporation) (IRS Employer Identification No.)
3 Great Pasture Road, Danbury, Connecticut 06813
------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
ENERGY RESEARCH CORPORATION
1988 STOCK OPTION PLAN
1998 EQUITY INCENTIVE PLAN
--------------------------
(Full title of the Plans)
Jerry D. Leitman, President
Energy Research Corporation
3 Great Pasture Road
Danbury, Connecticut 06813
--------------------------
(Name and address of agent for service)
(203) 825-6000
--------------
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of securities to Amount to be Proposed maximum Proposed maximum aggregate Amount of
be registered registered offering price per share offering price registration fee
<S> <S> <S> <S> <S>
Common Stock, 601,000 $10.125 $6,085,125 $1,796.00
$.0001 par value shares(1)
</TABLE>
(1) Represents 101,000 additional shares of Common Stock issuable upon
exercise of options granted or to be granted under the Registrant's 1988
Stock Option Plan, as amended, and 500,000 shares of Common Stock
issuable pursuant to awards granted or to be granted under the
Registrants' 1998 Equity Incentive Plan. Such presently indeterminable
number of additional shares of Common Stock are also registered
hereunder as may be issued in the event of a merger, consolidation,
reorganization, recapitalization, stock dividend, stock split or other
similar change in Common Stock.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, on the basis
of the average high and low prices for the Registrant's Common Stock on
the American Stock Exchange on September 15, 1998.
================================================================================
Pursuant to Rule 429 under the Securities Act of 1933, this
Registration Statement also incorporates by reference and serves as
Post- Effective Amendment No. 2 to Registration Statement No. 33-77008
on Form S-8 and Post-Effective Amendment No. 1 to Registration
Statement No. 33-20708 on Form S-8, filed with respect to 400,000
shares and 200,000 shares, respectively, of Common Stock issuable upon
exercise of options granted or to be granted under the Registrant's
1988 Stock Option Plan, as amended.
II-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The following documents are hereby incorporated by reference into this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended October 31, 1997;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year covered by the Annual Report referred to in (a) above;
(c) The material included in "Description of Capital Stock - Common
Shares" contained on page 38 of the Prospectus dated June 25, 1992, included in
Registrant's Registration Statement on Form S-1 (Registration No. 33-47233)
filed under the Securities Act of 1933, which was incorporated by reference in
Item 1 of Registrant's Registration Statement on Form 8-A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") dated June 12, 1992.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, subsequent to the date hereof 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 hereby incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of 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 subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The legality of the Common Stock issuable upon the exercise of stock
options granted or to be granted under the Registrant's 1988 Stock Option Plan,
as amended, or pursuant to awards granted or to be granted under the
Registrant's 1998 Equity Incentive Plan has been passed upon for the Registrant
by Brown, Rudnick, Freed & Gesmer, One Financial Center, Boston, Massachusetts
02111.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
As permitted by Section 722 of the Business Corporation Law of the
State of New York, the Registrant's Restated Certificate of Incorporation, as
amended, provides for indemnification of officers and directors under certain
circumstances against expenses incurred in successfully defending against a
claim and authorizes the Registrant to indemnify its officers and directors
under certain circumstances against liabilities and expenses incurred in legal
proceedings involving such persons because of their being or having been an
officer or director. The By-Laws of the Registrant provide for indemnification
of its officers and directors to the full extent authorized by law.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
II-2
<PAGE>
Item 8. Exhibits.
--------
Number Description
4.1 Certificate of Incorporation of the Registrant, as amended - Filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form S-1
(File No.33-47233) dated April 14, 1992.*
4.2 Restated By-Laws of the Registrant - Filed as Exhibit 3.2 to the
Registrant's Annual Report on Form 10-KSB for the fiscal year ended
October 31, 1992, dated January 20, 1993.*
4.3 Specimen Certificate of Common Stock - Filed as Exhibit 7 to the
Registrant's Registration Statement on Form 8-A dated June 12, 1992.*
5 Legal Opinion of Brown, Rudnick, Freed & Gesmer.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Brown, Rudnick, Freed & Gesmer is included in their legal
opinion filed as Exhibit 5 hereof.
24 Power of Attorney (included on the signature page of this Registration
Statement).
99.1 Energy Research Corporation 1988 Stock Option Plan, as amended -
Filed as Exhibit 10.21 to the Registrant's Amendment No. 1 to
its Registration Statement on Form S-1(File No. 33-47233) dated
June 1, 1992.*
99.2 Amendment to the Registrant's 1988 Stock Option Plan - Filed as Exhibit
10.42 to the Registrant's Quarterly Report on Form 10-Q for the period
ended April 30, 1996.*
99.3 Amendment to the Registrant's 1988 Stock Option Plan, as amended- Filed
as Exhibit 10.53 to the Registrant's Quarterly Report on Form 10-Q for
the period ended July 31, 1998.*
99.4 Registrant's 1998 Equity Incentive Plan - Filed as Exhibit 10.54 to the
Registrant's Quarterly Report on Form 10-Q for the period ended
July 31, 1998.*
- ------------------
* Not filed herewith. In accordance with Rule 411 promulgated pursuant to the
Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Commission, which are incorporated by reference
herein.
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 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.
(2) That, for the purpose of determining 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.
II-3
<PAGE>
(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 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 registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
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 has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Danbury, State of Connecticut, on September 17, 1998.
ENERGY RESEARCH CORPORATION
By: /s/ Jerry D. Leitman
--------------------
Jerry D. Leitman
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Jerry D. Leitman and Louis P. Barth and each of
them (with full power to each of them to act alone), his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and 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 attorneys-in-fact and agents, or any of them, or their
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 by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Jerry D. Leitman President, Chief September 17, 1998
- -------------------- Executive Officer and
Jerry D. Leitman Director (Principal
Executive Officer)
/s/ Louis P. Barth Senior Vice President, September 17, 1998
- ------------------ Chief Financial Officer,
Louis P. Barth Corporate Secretary
(Principal Financial and
Accounting Officer)
/s/ Bernard S. Baker Director September 17, 1998
- --------------------
Bernard S. Baker
II-5
<PAGE>
/s/ Warren D. Bagatelle Director September 17, 1998
- ------------------------
Warren D. Bagatelle
/s/ Hansraj C. Maru Director September 17, 1998
- -------------------
Hansraj C. Maru
/s/ William A. Lawson Director September 17, 1998
- ---------------------
William A. Lawson
/s/ Richard M. H. Thompson Director September 17, 1998
- --------------------------
Richard M.H. Thompson
/s/ Michael Bode Director September 17, 1998
- ----------------
Michael Bode
/s/ James D. Gereson Director September 17, 1998
- --------------------
James D. Gerson
/s/ Christopher Bentley Director September 17, 1998
- -----------------------
Christopher Bentley
/s/ Thomas L. Kempner Director September 17, 1998
- ---------------------
Thomas L. Kempner
II-6
<PAGE>
Exhibit Index
Number Description Reference
- ------ ----------- ---------
4.1 Certificate of Incorporation of the Registrant, as amended - Filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form S-1
(File No. 33-47233) dated April 14, 1992.*
4.2 Restated By-Laws of the Registrant - Filed as Exhibit 3.2 to the
Registrant's Annual Report on Form 10-KSB for the fiscal year ended
October 31, 1992, dated January 20, 1993.*
4.3 Specimen Certificate of Common Stock - Filed as Exhibit 7 to the
Registrant's Registration Statement on Form 8-A dated June 12,
1992.*
5 Legal Opinion of Brown, Rudnick, Freed & Gesmer.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Brown, Rudnick, Freed & Gesmer is included in their legal
opinion filed as Exhibit 5 hereof.
24 Power of Attorney (included on the signature page of this Registration
Statement).
99.1 Energy research corporation 1988 Stock Option Plan, as amended - filed
as Exhibit 10.21 to the Registrant's Amendment No. 1 to its
Registration Statement of Form S-1 (File No. 33-47233) dated
June 1. 1992.*
99.2 Amendment to the Registrant's 1988 Stock Option Plan - Filed as
Exhibit 10.42 to the Registrant's Quarterly Report on Form 10-Q for
the period ended April 30, 1996.*
II-7
<PAGE>
99.3 Amendment to the Registrant's 1988 Stock Option Plan - Filed as
Exhibit 10.53 to the Registrant's Quarterly Report on Form 10-Q for
the period ended July 31, 1998.*
99.4 Registrant's 1998 Equity Incentive Plan - Filed as Exhibit 10.54 to
the Registrant's Quarterly Report on Form 10-Q for the period ended
July 31, 1998.*
- ------------------
* Not filed herewith. In accordance with Rule 411 promulgated pursuant to the
Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Commission, which are incorporated by reference
herein.
II-8
<PAGE>
Consent of Independent Accountants
The Board of Directors
Energy Research Corporation:
We consent to incorporation by reference in the registration statement on Form
S-8 of Energy Research Corporation and Subsidiaries of our report dated January
12, 1998, relating to the consolidated balance sheets of Energy Research
Corporation and Subsidiaries as of October 31, 1997 and 1996, and the related
consolidated statements of income, changes in common shareholders' equity and
cash flows for each of the years in the three-year period ended October 31,
1997, which report appears in the October 31, 1997 annual report on Form 10-K of
Energy Research Corporation.
/s/ KPMG Peat Marwick, LLP
Stamford, CT
September 16, 1998
<PAGE>
September 17, 1998
Energy Research Corporation
3 Great Pasture Road
Danbury, Connecticut 06813
RE: Energy Research Corporation Registration Statement on Form S-8
Ladies and Gentlemen:
We are general counsel to Energy Research Corporation, a New York
corporation (the "Company"). We have been asked to deliver this opinion in
connection with the preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
601,000 shares of the Company's Common Stock, $.0001 par value (the "Shares")
issuable upon exercise of options granted or to be granted under the Company's
1988 Stock Option Plan, as amended (the "1988 Plan"), and 1998 Equity Incentive
Plan (the "1998 Plan").
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
the following documents (collectively, the "Documents"):
1. A copy of the Restated Certificate of Incorporation of the Company, as
amended, as in effect on the date hereof;
2. A copy of the By-laws of the Company as in effect on the date hereof;
3. Certificates of the Secretary of the Company with respect to the votes
of the Board of Directors and the stockholders of the Company relating
to the approval of the 1988 Plan and the 1998 Plan;
4. The 1988 Plan and the 1998 Plan; and
5. The Registration Statement.
In giving our opinion, we have relied as to matters of fact upon
certificates of public officials and officers of the Company. For purposes of
this opinion we have assumed without any investigation (1) the legal capacity of
each natural person and (2) the genuineness of each signature, the completeness
of each document submitted to us as an original and the conformity with the
original of each document submitted to us as a copy.
<PAGE>
Our opinion hereafter expressed is based solely upon (1) our review of
the Documents, (2)discussions with certain officers of the Company with respect
to the Documents,(3) discussions with those of our attorneys who have
devoted substantive attention to the matters contained herein and (4) such
review of published sources of law as we have deemed necessary.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized and, when issued upon the proper exercise of
options granted in accordance with the terms of the 1988 Plan and the 1998 Plan,
respectively, the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to our firm wherever it appears in
the Registration Statement.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: Brown, Rudnick, Freed & Gesmer, Ltd.,
a partner
By: /s/ Jayne M. Donegan
---------------------
Jayne M. Donegan, a Member
duly authorized
<PAGE>
