As filed with the Securities and Exchange Commission
on March 20, 1997 REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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GRAHAM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 16-1194720
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER
ORGANIZATION) IDENTIFICATION NO.)
20 FLORENCE AVENUE
BATAVIA, NEW YORK 14020
(716) 343-2216
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
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1995 GRAHAM CORPORATION
INCENTIVE PLAN TO INCREASE SHAREHOLDER VALUE
(FULL TITLE OF THE PLAN)
---------------
William A. Smith, Jr.
General Counsel
Graham Corporation
20 Florence Avenue
Batavia, New York 14020
(716) 343-2216
Copy to:
W. Edward Bright, Esq.
Thacher Proffitt & Wood
Two World Trade Center - 39th Floor
New York, New York 10048
(212) 912-7400
(NAME AND ADDRESS, INCLUDING ZIP CODE, TELEPHONE NUMBER AND AREA CODE, OF
AGENT FOR SERVICE)
---------------
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Registered(1) Proposed Maximum Offering Proposed Maximum Amount of
to be Registered Price Per Share (2) Aggregate Offering Price (2) Registration Fee
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Common Stock, $0.10 par value 150,000 shares $14.9375 $2,001,968 $605
====================================================================================================================================
(1) Based on the number of shares of common stock of Graham Corporation
("Graham") reserved for issuance upon exercise of options granted
pursuant to the 1995 Graham Corporation Incentive Plan to Increase
Shareholder Value ("Plan"). In addition to such shares, this
registration statement also covers an undetermined number of shares of
common stock of Graham that, by reason of certain events specified in
the Plan, may become issuable upon exercise of options through the use
of certain anti-dilution provisions.
(2) Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457 of the Securities Act of 1933, pursuant to
which shares subject to outstanding options are deemed to be offered at
the prices at which such options may be exercised and shares that may
be acquired upon exercise of options granted in the future are deemed
to be offered at $14.9375 per share, the average of the daily high and
low sales prices of common stock of Graham on the American Stock
Exchange at the close of trading on March 14, 1997.
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange
Commission (the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
Note: The document containing the information specified in
this Part I will be sent or given to employees as specified by Rule 428(b)(1).
Such document need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended ("Securities Act").
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with
the Commission by the Registrant are incorporated by reference in this
registration statement:
(1) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, which was filed with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(2) the Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1996, June 30, 1996, and September
30, 1996, filed with the Commission pursuant to the Exchange
Act;
(3) the description of the Registrant's Common Stock (the "Common
Stock") contained in the Registrant's Registration Statement
on Form 8-A, as amended by Form 8, filed with the Commission
pursuant to the Exchange Act;
(4) the description of the Common Stock Purchase Rights (the
"Rights") issued by the Registrant pursuant to the Rights
Agreement dated as of February 23, 1990 (the "Rights
Agreement") between the Registrant and Chase Lincoln First
Bank N.A., (now known as Chase Manhattan Bank), contained in
the Registration
Statement on Form 8-A, as amended by Form 8, filed with the
Commission on March 2, 1990, pursuant to which the Registrant
registered the Rights pursuant to Section 12(g) of the
Exchange Act; and
(5) the Graham Corporation Proxy Statement dated April 5, 1996 for
Annual Meeting of Shareholders held on May 9, 1996.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date hereof and prior to the date of the
termination of the offering of the Common Stock offered hereby shall be deemed
to be incorporated by reference into this registration statement and to be a
part hereof from the date of filing of such documents. Any statement contained
herein or 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
document which is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
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 Registrant's authority to indemnify its officers and
directors is governed by the provisions of Section 145 of the Delaware General
Corporation Law, as amended, ("DGCL") and by the Certificate of Incorporation of
the Registrant.
Article Fourteenth of the Registrant's Certificate of
Incorporation requires the Registrant, among other things, to indemnify its
directors, officers, employees and agents to the fullest extent permitted by the
DGCL and provides that such rights of indemnification shall be in addition to
any rights to which any such director, officer, employee or agent may otherwise
be entitled to under any other statute, the Certificate of Incorporation or by
virtue of any agreement or vote of the shareholders or disinterested directors
or otherwise both as to action in his or her official capacity and as to action
in another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such person.
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Article Fourteenth of the Certificate of Incorporation of the
Registrant also provides that to the fullest extent permitted by the DGCL, a
director shall not be liable to the Registrant or its shareholders for monetary
damages for breach of fiduciary duty as a director.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing, the Registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 1995 Graham Corporation Incentive Plan to Increase
Shareholder Value.
4.2 Form of Stock Option Agreement Pursuant to the 1995
Graham Corporation Incentive Plan to Increase
Shareholder Value.
4.3 Certificate of Incorporation of Graham Corporation,
as amended, incorporated by reference to the
Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1989 filed with the
Commission pursuant to the Exchange Act.
4.4 By-Laws of Graham Corporation, incorporated by
reference to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1995,
which was filed with the Commission pursuant to the
Exchange Act.
4.5 Shareholder Rights Plan of Graham Corporation
incorporated by reference to the Registrant's Current
Report on Form 8-K filed on February 26, 1991, as
amended by Amendment No. 1 filed on Form 8 dated June
1, 1991.
5. Opinion of Thacher Proffitt & Wood, counsel for
Registrant, as to the legality of the securities
being registered.
23.1 Consent of Thacher Proffitt & Wood (included in
Exhibit 5 hereof).
23.2 Consent of Deloitte & Touche LLP.
ITEM 9. UNDERTAKINGS.
A. RULE 415 OFFERING. 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:
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(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 the 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 the
registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (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 15(d) of the Exchange Act that are incorporated by
reference 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.
(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 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 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. INCORPORATED ANNUAL AND QUARTERLY REPORTS. The undersigned
Registrant hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the latest
annual report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of Rule 14a- 3
or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3 of Regulation S-X is
not set forth in the prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest quarterly report that
is specifically incorporated by reference in the prospectus to provide such
interim financial information.
D. FILING OF REGISTRATION ON FORM S-8. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons
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of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant for 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 Securities Act and will be governed by the final
adjudication of such issue.
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EXPLANATORY NOTE
This registration statement includes or is deemed to include two forms of
prospectus: one to be sent or given to certain participants (the "Participant
Prospectus") in the 1995 Graham Corporation Incentive Plan to Increase
Shareholder Value ("Plan") pursuant to Part I of Form S-8 and Rule 428(b)(1)
under the Securities Act of 1933, as amended ("Securities Act"), and one to be
used in connection with certain reoffers and resales (the "Resale Prospectus")
of shares of Common Stock, par value $0.10 per share, of Graham Corporation by
participants in the Plan as contemplated by Instruction C to Form S-8 under the
Securities Act. The form of Participant Prospectus has been omitted from this
registration statement as permitted by Part I of Form S-8. The form of Resale
Prospectus is included herein immediately following this page.
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CROSS REFERENCE SHEET REQUIRED BY ITEM 501(b) OF REGULATION S-K
(Showing location of Information Requested by Form S-3)
ITEMS REQUIRED BY PART I OF FORM S-3
S-3 ITEM PROSPECTUS HEADING
1. Front of Registration Statement and Facing Page; Outside Front Cover
Outside Front Cover Page of Prospectus Page; this Cross-Reference Sheet
2. Inside Front and Outside Back Cover Available Information;
Pages of Prospectus Incorporation of Certain Documents
by Reference; Table of Contents
3. Summary Information, Risk Factors Risk Factors
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Determination of Offering Price
6. Dilution Not Applicable
7. Selling Security Holders Selling Security Holders
8. Plan of Distribution Plan of Distribution
9. Description of Securities to be Not Applicable
Registered
10. Interests of Named Experts and Counsel Legal Opinions; Experts
11. Material Changes Not Applicable
12. Incorporation of Certain Documents by Incorporation of Certain Documents
Reference by Reference
13. Disclosure of Commission Position on Indemnification of Directors and
Indemnification for Securities Act Officers
Liabilities
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PROSPECTUS
GRAHAM CORPORATION
150,000 SHARES OF COMMON STOCK
($0.10 PAR VALUE)
OFFERED OR TO BE OFFERED BY CERTAIN SELLING SHAREHOLDERS OF
GRAHAM CORPORATION FOLLOWING THEIR ACQUISITION UNDER
THE 1995 INCENTIVE PLAN TO INCREASE SHAREHOLDER VALUE
Certain holders of Graham Corporation Common Stock may offer,
from time to time, up to 150,000 shares of Graham Common Stock which they have
acquired under the 1995 Incentive Plan to Increase Shareholder Value ("Plan").
The shares may be sold directly by the holder to purchasers or may be given by
the holder to donees, such as members of the holder's family or charitable
organizations, and then sold by the donee to the purchasers. Sales may occur
through the facilities of the American Stock Exchange, on which the shares are
listed, or may occur privately.
This Prospectus relates to 150,000 authorized shares of Graham Common
Stock registered for purchase under the Plan. Such shares are, at the date
hereof, either unissued shares or are held as treasury stock by Graham
Corporation (the "Company"). It is suggested that this Prospectus be retained
for future reference. This Prospectus contains a discussion of material risks in
connection with the purchase of shares of the Company. See "Risk Factors"
beginning on page 3.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS ANY SUCH
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 March 20, 1997
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended ("Exchange Act") and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Information, as of particular dates,
concerning directors and officers, their remuneration, the principal holders of
Graham Common Stock, and any material interest of such persons in transactions
with the Company is disclosed in proxy statements distributed to shareholders of
the Company and filed with the Commission. Such reports, proxy statements, and
other information can be inspected and copied at the offices of the Commission
at Room 1024, Judiciary Plaza, 450 Fifth Street N.W., Washington, D.C. 20549; at
Public Reference Facilities in the Chicago Regional Office, 500 West Madison
Street, Chicago, Illinois 60661; and at the New York Regional Office in Seven
World Trade Center, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth Street
N.W., Washington, D.C. 20549 at prescribed rates. Graham Common Stock is traded
on the American Stock Exchange. The Commission maintains a Web site
(http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission, such as the Company. Reports, proxy material and other information
concerning the Company may also be inspected at the offices of the American
Stock Exchange, 86 Trinity Place, New York, New York 10006.
The Company has filed with the Commission in Washington D.C.,
a Registration Statement under the Securities Act of 1933, as amended
("Securities Act"), with respect to the securities to which this prospectus
relates. As permitted by the rules and regulations of the Commission, this
prospectus does not contain all the information set forth in the Registration
Statement, including the exhibits thereto, which may be obtained from the Public
Reference Section of the Commission at 450 Fifth Street N.W., Washington, D.C.
20549, upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are incorporated by reference herein the Graham
Corporation Proxy Statement dated April 5, 1996, the Graham Corporation Annual
Report on 10-K for the year ended December 31, 1995 and the Registrant's
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 30, 1996,
June 30, 1996, and September 30, 1996 filed with the Commission pursuant to the
Exchange Act. The description of the class of securities offered under the Plan
is described in the Registration Statement on Form 8-A, as amended, filed by the
Company with the Commission pursuant to the Exchange Act. Such descriptions are
incorporated by reference herein.
All documents filed by the Company pursuant to Sections 13,
14, or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the securities made hereby are
incorporated herein by reference, and such documents shall be deemed 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 Prospectus to
the extent that a
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statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any 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 provide without charge to each person to whom
this Prospectus is delivered, upon request of any such person, a copy of any or
all of the foregoing documents incorporated herein by reference (other than
exhibits to such documents). Written requests shall be directed to Mr. William
A. Smith, Jr., General Counsel, Graham Corporation, 20 Florence Avenue, Batavia,
New York 10420. Telephone requests may be directed to (716) 343-2216.
The principal executive offices of the Company are located at
20 Florence Avenue, Batavia, New York 14020. The telephone number at such
offices is (716) 343-2216.
CERTAIN CONSIDERATIONS
RISK FACTORS
THE COMPANY. Graham Corporation was organized in 1983 as a Delaware
holding company and is the successor to Graham Manufacturing Co., Inc., now a
wholly owned subsidiary of the Company. Graham Manufacturing Co., Inc. was
organized in 1936 under the laws of the State of New York. The Company manages
the activities of various subsidiaries that are located in the United States and
the United Kingdom. The Company is primarily engaged in the custom manufacture
and design of vacuum and heat transfer equipment. The principal customers for
these products are large industrial corporations in the chemical, petrochemical,
petroleum refining and electric power generating industries. The Company's
products are sold through a combination of direct sales engineers and
independent sales representatives located in over 40 major cities in the United
States and abroad. Consolidated sales in 1995 were $49,480,000, resulting in net
income of $1,134,000 or $0.72 per share.
Graham's United States operation consists of one wholly-owned,
separately incorporated subsidiary, Graham Manufacturing Co., Inc. ("GMC")
located in Batavia, New York. GMC is a leading manufacturer of steam jet ejector
vacuum systems. In addition, GMC is a recognized manufacturer of surface
condensers for steam turbines, liquid ring vacuum pumps and various types of
heat exchangers such as Heliflow, plate and frame, and special types of nuclear
shell and tube heat exchangers. Graham's United Kingdom operation consists of
two subsidiaries, Graham Vacuum & Heat Transfer Limited and Graham Precision
Pumps Limited ("GPPL") in Congleton, Cheshire. U.K. sales were $5,494,000 in
1995 (converted at an exchange rate of $1.58 per British Pound Sterling).
CONCENTRATION OF CUSTOMERS IN CYCLICAL INDUSTRIES. Historically, almost
all of the Company's revenues have been derived from sales to corporations in
the chemical, petrochemical, petroleum refining and electrical power generating
industries. Corporations in these industries have historically experienced
cyclical periods of construction and expansion of their plants and facilities.
Currently, in the United States, these industries are experiencing a protracted
cycle of little expansion of existing facilities. For example, no new major
petroleum
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refining facilities have been constructed in the United States in 20 years.
Demand for the Company's products has increasingly come from the construction of
new facilities outside the United States and from the upgrading of existing
facilities within the United States. While the Company believes that demand for
its products will increase, there can be no assurance that the Company will be
successful in its efforts to continue to derive a greater portion of revenues
from outside the United States or that the cyclical downturn in the Company's
customers' industries will not continue.
FLUCTUATION OF FINANCIAL RESULTS. The Company's revenues and operating
results could fluctuate significantly from period to period. Given the
relatively large sales price of the Company's products and variations in profit
margins between product lines, a limited number of product orders may account
for a substantial portion of revenues and profits in any particular period. As a
result of these and other factors, the Company could experience significant
fluctuations in revenues and operating results in future periods.
TECHNOLOGICAL OBSOLESCENCE. The Company believes that its future
success will depend in part upon its ability to enhance existing products and to
develop and manufacture new products that meet new demands from its customers.
The failure to introduce new or enhanced products on a timely and
cost-competitive basis could have a material adverse effect on the Company's
financial condition and results of operation.
COMPETITIVE MARKETPLACE. The markets in which the Company operates are
composed of other global and regional competitors, some of which may have
greater financial, engineering, manufacturing or other resources than the
Company. While the Company believes that in the manufacture of steam jet
ejectors it is a leading manufacturer, the Company gathers a small percentage of
the market share in its other product areas. There can be no assurance that the
Company will have sufficient resources to continue as a leading manufacturer of
steam jet ejectors or that it will be successful in capturing additional market
share.
INCREASED NUMBER OF REGISTERED SHARES. Public trading in the Company's
Common Stock may be characterized by a small trading volume. The addition of a
substantial number of additional shares eligible for public trading may have the
effect of creating an excess of the supply of shares for sale over the demand
for shares to be purchased, which may lead to a decline of the prevailing prices
at which shares of the Common Stock may trade.
ANTI-TAKEOVER PROVISIONS
CORPORATE STRUCTURE. The Company's Certificate of Incorporation (the
"Certificate of Incorporation") and By-laws contain certain provisions that may
discourage potential takeover attempts that are not negotiated with the
Company's Board of Directors. As a result, these provisions may have the effect
of precluding takeover attempts that shareholders deem to be in their best
interests, or in which shareholders might otherwise have received a substantial
premium for their shares over the then-current market price, as well as making
it more difficult for shareholders to acquire majority representation on the
Board of Directors.
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These provisions provide, among other things: (1) that the Company's
Board of Directors be divided into three classes with staggered terms; (2) that
approval of the holders of 75% of the shares of stock entitled to vote, as well
as the approval of the majority of the holders of shares of stock entitled to
vote, if a corporation, person or other entity owns more than 50% of the shares
of stock entitled to vote, be obtained for consummation of certain business
combinations not approved in advance by the Company's Board of Directors (such
as the merger or dissolution of Company); (3) for the issuance of additional
shares of common stock or shares of preferred stock by the Company's Board of
Directors without the approval of the shareholders (including the issuance of
such shares in connection with a Shareholder Rights Plan); (4) that cumulative
voting shall not be permitted in connection with the election of directors; and
(5) that special meetings of shareholders may be called only by the Chairman of
the Board, the President or by two directors or more.
DELAWARE LAW. In general, Section 203 of the Delaware General
Corporation Law ("DGCL") prevents an "interested stockholder" (defined generally
as a person with 15% or more of a corporation's outstanding voting stock) from
engaging in a "business combination" (as defined in the DGCL) with a Delaware
corporation for three years following the date such person became an interested
stockholder.
The provision is not applicable when (i) prior to the date the
stockholder became an interested stockholder, the board of directors of the
corporation approved either the business combination or the transaction that
resulted in the stockholder becoming an interested stockholder, (ii) upon
consummation of the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the
outstanding voting stock of the corporation, not including shares owned by
directors who are also officers and by certain employee stock plans or (iii) on
or subsequent to the date the stockholder becomes an interested stockholder, the
business combination is approved by the board of directors of the corporation
and authorized at a meeting of stockholders, and not by written consent, by the
affirmative vote of the holders of at least two-thirds of the outstanding voting
stock entitled to vote thereon, excluding shares owned by the interested
stockholder.
The DGCL's restrictions generally do not apply to business combinations
with an interested stockholder that are proposed subsequent to the public
announcement of, and prior to the consummation or abandonment of, certain
mergers, sales of a majority of the corporation's assets or tender offers for
50% or more of the corporation's voting stock.
The DGCL allows corporations to elect not to be subject to the
provisions of the DGCL. The Company has not so elected.
VOTING CONTROL OF EXECUTIVE OFFICERS AND DIRECTORS. Directors and
executive officers of the Company currently hold or control the voting of
approximately 21.2% of the outstanding shares of Graham Common Stock either
directly or through participation in employee benefit plans. Management's
potential voting control could, together with additional stockholder support,
defeat stockholder proposals requiring a super majority vote. As a result, these
provisions may preclude or render more difficult takeover attempts that certain
stockholders may deem to be in their best interest and may tend to perpetuate
existing management.
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PROVISIONS OF REMUNERATION PLANS AND AGREEMENTS. Employment agreements
with certain management officials of the Company and certain provisions of the
Company's stock option plans may provide for benefits and cash payments in the
event of a change in control of the Company. These provisions may have the
effect of increasing the cost of acquiring the Company, thereby discouraging
future attempts to take over the Company.
POSSIBLE DILUTIVE EFFECT OF STOCK OPTIONS. Directors, officers and
employees of the Company have been granted options to purchase Graham Common
Stock and authorized but unissued shares have been reserved for issuance upon
exercise of such options. Such reserved shares amount to approximately 11.9% of
the outstanding Graham Common Stock. In addition, authorized but unissued shares
in an amount equal to approximately 7.0% of the outstanding Graham Common Stock
have been reserved for issuance pursuant to additional options that may be
granted pursuant to the Company's existing option plans. If all the options
granted but not exercised and which may be granted in the future were to be
exercised using authorized but unissued Graham Common Stock, the voting interest
of existing shareholders would be diluted by approximately 18.9%.
USE OF PROCEEDS
The shares will be offered by certain individuals who acquire
them upon exercise of options granted under the Plan for their personal
accounts. The proceeds from such sales will be used by them for their personal
benefit. The Company will not receive any portion of the payment for the shares.
DETERMINATION OF OFFERING PRICE
The purchase price of the shares offered hereby will be the
market price (plus customary or negotiated brokerage commissions) prevailing at
the time of the sale in the case of transactions on the American Stock Exchange
and negotiated prices related to market prices in private negotiated
transactions not on any securities exchange.
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SELLING SHAREHOLDERS
The shares offered hereby have been issued to optionees under the Plan
or will be issued upon exercise of options or stock appreciation rights under
the Plan. Not all optionees under the Plan are affiliates of the Company. The
directors and executive officers of the Company to whom options or stock
appreciation rights have been granted under the Plan are:
============================================================================================================================
OWNED OR TO
BE OWNED
UPON
EXERCISE OF NUMBER OF
OPTIONS NUMBER OF SHARES TO PERCENTAGE
NUMBER OF (WHETHER OR SHARES BE HELD OF CLASS TO
POSITION AT COMPANY OR SHARES NOT VESTED COVERED BY AFTER BE OWNED
SELLING AFFILIATES WITHIN THE PAST BENEFICIALLY ON MARCH 19, THIS OFFERING AFTER
SHAREHOLDER THREE YEARS OWNED(1) 1997) PROSPECTUS (2) OFFERING(3)
============================================================================================================================
Frederick D. Berkeley Chairman of the Board, 213,297 23,250 0 213,297 13.4%
President and Chief Executive
Officer
- ----------------------------------------------------------------------------------------------------------------------------
Alvaro Cadena President and Chief Operating 4,208 14,700 0 4,208 (4)
Officer Graham
Manufacturing Co., Inc.
("GMC"), Vice President of
Graham; previously Executive
Vice President of GMC
- ----------------------------------------------------------------------------------------------------------------------------
J. Ronald Hansen Vice President of Finance and 709 9,490 2,100 709 (4)
Chief Financial Officer;
previously Vice President of
Finance and Chief Financial
Officer of Al Tech Specialty
Steel Corp.
- ----------------------------------------------------------------------------------------------------------------------------
Joseph P. Gorman Vice President-Sales of GMC 1,530 10,500 2,100 1,530 (4)
- ----------------------------------------------------------------------------------------------------------------------------
Stephen P. Northrup Vice President-Engineering of 813 10,500 2,100 813 (4)
GMC
- ----------------------------------------------------------------------------------------------------------------------------
H. Russel Lemcke Director 10,000 10,500 4,500 10,000 (4)
- ----------------------------------------------------------------------------------------------------------------------------
Jerald D. Bidlack Director 2,250 10,500 4,500 2,250 (4)
- ----------------------------------------------------------------------------------------------------------------------------
Philip S. Hill Director 0 10,500 4,500 0 0
- ----------------------------------------------------------------------------------------------------------------------------
Robert L. Tarnow Director 300 10,500 4,500 300 (4)
- ----------------------------------------------------------------------------------------------------------------------------
Cornelius S. Van Rees Director 1,050 10,500 4,500 1,050 (4)
============================================================================================================================
(1) Beneficial ownership in this table includes the number of
shares of Company common stock which such person has the right
to acquire within 60 days after March 19, 1997 by the exercise
of options under the Plan.
(2) Assumes that all shares acquired or to be acquired upon
exercise of options under the Plan are sold.
(3) Percentage with respect to each person has been calculated on
the basis of the number of shares of Company Common Stock
outstanding as of March 19, 1997, without regard to the number
of shares of Company Common Stock which such person or any
person has the right to acquire by the exercise of stock
options.
(4) Less than 1%.
- 7 -
PLAN FOR DISTRIBUTION
The shares may be offered for sale on the American Stock
Exchange where they are listed. They may be offered from time to time in private
transactions. The Company does not expect to bear the expense of such sales.
LEGAL OPINIONS
The legal status of the shares of Graham Common Stock offered
hereby will be passed upon for the Company by Thacher Proffitt & Wood, New York,
New York.
EXPERTS
The consolidated financial statements and the related
consolidated financial statement schedules incorporated in this prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 1995 have been audited by Deloitte & Touche, LLP, independent
auditors, as stated in their reports, which are incorporated herein by
reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
SHAREHOLDER RIGHTS PLAN
The Company has adopted a Shareholder Rights Plan whereby one
share Purchase Right is attached to each outstanding share of Common Stock. Each
Purchase Right entitles the holder to purchase from the Company an additional
share of Common Stock for $46.67 per share, subject to adjustment. The Purchase
Rights become exercisable upon (i) the acquisition by a person or group of
persons of 20% or more of the Common Stock; or (ii) if a person or group of
persons commences a tentative offer for 30% or more of the Company's outstanding
Common Stock. The Company has the right to redeem the Purchase Rights for $0.10
per Purchase Right at any time prior to the close of business on the date the
Purchase Rights become exercisable.
After the Purchase Rights become exercisable, if the Company
is acquired in a business combination, or if at least half of the Company's
assets or earning power are sold, the Purchase Right would entitle its holder to
purchase stock of the acquirer (or Graham, if it were the surviving company) at
a discount of 50%. The number of shares that each Purchase Right would entitle
its holder to acquire at a discount would be the number of shares having a
market value equal to twice the exercise price of the Purchase Right.
The issuance of the Purchase Rights, while providing
flexibility in connection with a possible acquisition, could adversely affect,
among other things, the rights of existing shareholders, or could have the
effect of deferring, delaying or preventing a change in control of the Company,
without further action by the shareholders. The Company has no current plans to
redeem the Purchase Rights.
- 8 -
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of a corporation or other enterprise, against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. Similar indemnity is authorized for such person against expenses
(including attorney's fees) actually and reasonably incurred in connection with
the defense or settlement of any such threatened, pending or completed action or
suit if such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and provided
further that (unless a court of competent jurisdiction otherwise provides) such
person shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as authorized in each specific case upon a
determination by the shareholders or disinterested directors or by independent
legal counsel in a written opinion that indemnification is proper because the
indemnitee has met the applicable standard of conduct.
Section 145 of the DGCL further authorizes a corporation to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, against liability asserted against him, and incurred
by him in any such capacity, or arising out of his status as such, whether or
not the corporation would otherwise have the power to indemnify him under
Section 145 of the DGCL.
Article Fourteen of the Certificate of Incorporation of Graham
Corporation provides that a director shall not be liable for monetary damages
for breach of fiduciary duty to the fullest extent permitted by the Delaware
General Corporation Law, as amended. In addition, directors and officers of the
corporation are indemnified against any liabilities incurred, including expenses
incurred in defending a proceeding in advance of its final disposition, in his
capacity as a director or officer to the fullest extent permitted by the
Delaware General Corporation Law. The rights granted pursuant to the Certificate
of Incorporation are not exclusive of any rights granted by statute, agreement,
vote of shareholder or disinterested directors.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Act and is therefore unenforceable.
- 9 -
No person has been authorized to give
any information or to make any
representation not contained in this GRAHAM
Prospectus in connection with the offer CORPORATION
made by this Prospectus, and, if given
or made, such information or
representation must not be relied upon 150,000 SHARES
as having been authorized by Graham
Corporation. Prospectus nor any sale COMMON STOCK
made hereunder shall under any
circumstances create an implication ($0.10 PAR VALUE)
that there has been no change in the
affairs of Graham Corporation since
the date hereof or that the Offered or to be Offered by
information contained in this Certain Selling Shareholders of Graham
Prospectus is correct as of any date Corporation Following Their Acquisition
subsequent to the date of this under the 1995 Incentive Plan to Increase
Prospectus. This Prospectus does not Shareholder Value
constitute an offer or a solicitation
of an offer to buy any of the
securities offered hereby in any
jurisdiction to any person to whom
it is unlawful to make such offer
in such jurisdiction.
TABLE OF CONTENTS
AVAILABLE INFORMATION..........2
INCORPORATION OF
CERTAIN DOCUMENTS
BY REFERENCE...................2
CERTAIN CONSIDERATIONS.........3
USE OF PROCEEDS................6 PROSPECTUS
DETERMINATION OF
OFFERING PRICE.................6
SELLING SHAREHOLDERS.......... 7
PLAN FOR DISTRIBUTION .........8
LEGAL OPINIONS.................8
EXPERTS........................8
SHAREHOLDER RIGHTS PLAN........8
INDEMNIFICATION OF DATED: March 20, 1997
DIRECTORS AND OFFICERS.........9
- 10 -
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Batavia, State of New York on the 19th day of March,
1997.
GRAHAM CORPORATION
(Registrant)
By: /s/ Frederick D. Berkeley, III
------------------------------------
Frederick D. Berkeley, III
Chairman of the Board and Chief
Executive Officer
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 dates indicated.
Signature Title Date
--------- ----- ----
/s/ Frederick D. Berkeley, III Chairman of the Board and March 19, 1997
- --------------------------------- Chief Executive
Frederick D. Berkeley, III Officer/Director
/s/ Alvaro Cadena President and Chief March 19, 1997
- --------------------------------- Operating Officer/Director
Alvaro Cadena
/s/ J. Ronald Hansen Vice President - Finance March 19, 1997
- --------------------------------- and Chief Financial Officer
J. Ronald Hansen
/s/ H. Russel Lemcke Director March 19, 1997
- ---------------------------------
H. Russel Lemcke
/s/ Jerald D. Bidlack Director March 18, 1997
- ---------------------------------
Jerald D. Bidlack
/s/ Philip S. Hill Director March 18, 1997
- ---------------------------------
Philip S. Hill
/s/ Robert L. Tarnow Director March 19, 1997
- ---------------------------------
Robert L. Tarnow
/s/ Cornelius S. Van Rees Secretary/Director March 18, 1997
- ---------------------------------
Cornelius S. Van Rees
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION PAGE NO.
- ------ ----------- --------
4.1 1995 Graham Corporation Incentive Plan to Increase
Shareholder Value.................................................
4.2 Form of Option Agreement under the Plan for Employees
and Directors.....................................................
4.3 Certificate of Incorporation of Graham Corporation, as
amended, incorporated by reference to the Registrant's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1989 filed with the Commission pursuant
to the Exchange Act...............................................
4.4 By-laws of Graham Corporation, incorporated by
reference to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1995,
which was filed with the Commission pursuant to the
Exchange Act......................................................
4.5 Shareholder Rights Plan of Graham Corporation
incorporated by reference to the Registrant's Current
Report on Form 8-K filed on February 26, 1991, as
amended by Amendment No. 1 filed on Form 8 dated June
1, 1991...........................................................
5. Opinion of Thacher Proffitt & Wood, counsel for
Registrant, as to the legality of the securities being
registered........................................................
23.1 Consent of Thacher Proffitt & Wood (included in
Exhibit 5 hereof).................................................
23.2 Consent of Deloitte & Touche LLP..................................