-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, I42oDGX06s43wTxXewlmjU6ueSKrRbUyB9oVOHpN4oNorflKH76ujtmztQ5XfNlm TTD9L8Xs0tGZmIlPbrsQ4A== 0000886128-98-000021.txt : 19980922 0000886128-98-000021.hdr.sgml : 19980922 ACCESSION NUMBER: 0000886128-98-000021 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980918 EFFECTIVENESS DATE: 19980918 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: ENERGY RESEARCH CORP /NY/ CENTRAL INDEX KEY: 0000886128 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS ELECTRICAL MACHINERY, EQUIPMENT & SUPPLIES [3690] IRS NUMBER: 060853042 STATE OF INCORPORATION: NY FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-63833 FILM NUMBER: 98712167 BUSINESS ADDRESS: STREET 1: 3 GREAT PASTURE RD CITY: DANBURY STATE: CT ZIP: 06813 BUSINESS PHONE: 203-825-60 MAIL ADDRESS: STREET 1: 3 GREAT PASTURE ROAD CITY: DANBURY STATE: CT ZIP: 06813 S-8 1 FORM S-8 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) CALCULATION OF REGISTRATION FEE
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 Common Stock, 601,000 $10.125 $6,085,125 $1,796.00 $.0001 par value shares(1)
(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 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 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 (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 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 /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 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 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 EX-23.1 2 CONSENT OF ACCOUNTANTS 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 EX-23.2 3 CONSENT OF COUNSEL 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. 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 -----END PRIVACY-ENHANCED MESSAGE-----