As filed with the
Securities and Exchange Commission
on August 26, 1997
Registration No. 333-
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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
WINSTON RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Delaware 535 Fifth Avenue, New York, New York 10017 13-3134278
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(State or other (Address of Principal Executive Offices) (I.R.S. Employer
jurisdiction of Identification
incorporation or No.)
organization)
Winston Resources, Inc.
1996 Stock Plan
(Full title of the plan)
Seymour Kugler
Chief Executive Officer
Winston Resources, Inc.
535 Fifth Avenue
New York, New York 10017
(212) 557-5000
(Name, address and telephone number of agent for service)
Copy to:
Joel A. Klarreich, Esq.
Newman Tannenbaum Helpern Syracuse & Hirschtritt LLP
900 Third Avenue
New York, New York 10022
(212) 508-6700
CALCULATION OF REGISTRATION FEE
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Proposed
maximum
Title of securities Shares Proposed aggregate Amount of
to be to be maximum offering offering Registration
registered registered price per share price fee
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Common Stock
($.01 par value) 400,000 $4.3125(1) $1,725,000.00(1) $522.73
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(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculation the total registration fee. Computation
based upon the average of the bid and ask prices of the Common Stock as reported
on the American Stock Exchange on August 22, 1997 because the price at which the
options to be granted in the future may be exercised is not currently
determinable.
Page 1 of ___
Exhibit Index appears on page 9
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to Rule 428(b)(1), the information required by Item 1 and Item 2
of Part I is included in documents sent or given to each participant in the
Winston Resources, Inc. 1996 Stock Plan (the "Plan").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by Winston Resources, Inc. (the
"Registrant") with the Securities and Exchange Commission are hereby
incorporated by reference:
(a) The Registrant's latest annual report on Form 10-KSB for the fiscal
year ended December 31, 1996.
(b) All other reports filed by the Registrant pursuant to Sections 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, including the Registrant's reports on Form 10-Q for the periods
ended March 31, 1997 and June 30, 1997.
(c) The description of the Common Stock of the Registrant contained under
the caption, "Description of Registrant's Securities," in Item 9 of the
Registrant's Registration Statement No. 1-9629 on Form 10 (the "Exchange Act
Registration Statement"), which incorporates by reference the description of the
Common Stock of the Registrant contained under the caption, "Description of
Capital Stock," in the Prospectus included in the Registrant's Registration
Statement No. 33-14913 on Form S-1 (the "Securities Act Registration
Statement").
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities registered hereunder have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
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Item 6. Indemnification of Directors and Officers.
1. Section 145 of the General Corporation Law of Delaware permits a
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, whether civil, criminal, administrative or investigative, by reason
of the fact that he 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, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
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 interests of the corporation and, with respect to any criminal
action or proceeding, if he had no reasonable cause to believe his conduct was
unlawful. In the case of an action or suit by or in the right of the corporation
to procure a judgment in its favor, (i) such indemnification is limited to
expenses (including attorneys' fees) actually and reasonably incurred by such
person in the settlement of such action or suit, and (ii) no indemnification may
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless, and only to the
extent that, the Delaware Court of Chancery or the court in which such action or
suit is brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to above, or in defense of any claim, issue or matter
therein, Section 145 of the General Corporation Law entitles him to be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith. Expenses incurred by an officer or
director in defending a civil or criminal action, suit or proceeding may be paid
by the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it is ultimately determined that he is not
entitled to be indemnified by the corporation.
The indemnification and advancement of expenses permitted or required by
Section 145 of the General Corporation Law are not exclusive of other rights to
which directors and officers of a corporation may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise. Section
145 gives a corporation power to purchase and maintain insurance on behalf of
any person who may be indemnified by a corporation against any liability
asserted against him in any of the capacities referred to above, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under Section 145.
2. Article VI of the By-Laws of the Registrant requires it to indemnify
and advance expenses to any director, and permits it to indemnify and advance
expenses to any other person whom the Registrant may indemnify under Section 145
of the General Corporation Law under the circumstances and to the fullest extent
permitted by such Section.
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3. The Registrant presently maintains policies of insurance under which
the directors and officers of Registrant are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being, or having been, such
directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Number Document
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3.1.1 Restated Certificate of Incorporation of the Registrant, as filed
with the Secretary of State of Delaware on April 6, 1987
(Incorporated by reference to Registrant's Registration Statement
No. 33-14913, Exhibit 3.1)
3.1.2 Agreement and Plan of Merger dated as of April 15, 1987,
between Winston Resources, Inc. (New York) and the Registrant,
as filed with the Secretary of State of Delaware on April 20,
1987 (Incorporated by reference to Registrant's Registration
Statement No. 33-14913, Exhibit 3.2)
3.1.3 Certificate of Amendment of Restated Certificate of
Incorporation of the Registrant, as filed with the Secretary
of State of Delaware on June 11, 1993 (Incorporated by
reference to Registrant's Form 10-KSB for the year ended
December 31, 1993)
3.1.4 Composite Copy of Restated Certificate of Incorporation of the
Registrant, as amended (Incorporated by reference to
Registrant's Form 10-K for the year ended December 31, 1987,
Exhibit 3.3)
3.2 By-laws of the Registrant, as amended June 11, 1993 (Incorporated
by reference to Registrant's Form 10-KSB for the year ended
December 31, 1993)
4 Registrant's 1996 Stock Plan
5.1 Opinion of Counsel as to Legality of Securities Being Registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Richard A. Eisner & Company LLP
23.3 Consent of Counsel (contained in Exhibit 5.1 hereto)
24 Power of Attorney (see signature page)
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Item 9. Undertakings.
A. The 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 any liability under the
Securities Act of 1933, as amended (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; and
(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, 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 the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, 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 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions of the Registrant's By-Laws and Section
145 of the General Corporation Law of Delaware 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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
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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 New York, State of New York, on the 14th day of
August 1997.
WINSTON RESOURCES, INC.
By: /s/ Seymour Kugler
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Seymour Kugler,
Chairman of the Board and President
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SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Seymour Kugler and Jesse Ulezalka jointly
and severally, his attorneys-in-fact, each with full power of substitution, for
him in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
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/s/ Seymour Kugler August 14, 1997
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Seymour Kugler Chairman of the Board,
President, Principal
Executive Officer and
Director
/s/ Jesse Ulezalka August 14, 1997
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Jesse Ulezalka Chief Financial Officer
/s/ Reuben W. Abrams
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Reuben W. Abrams Director August 14, 1997
/s/ Martin Fischer August 14, 1997
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Martin Fischer Director
/s/ Alan E. Wolf
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Alan E. Wolf Vice President and Director August 14, 1997
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/s/ Martin Wolfson
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Martin Wolfson Director August 14, 1997
/s/ Gregg Kugler
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Gregg Kugler Vice President and Director August 14, 1997
/s/ Martin J. Simon
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Martin J. Simon Director August 14, 1997
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EXHIBIT INDEX
Exhibit Page
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Number Exhibit Number
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3.1.1 Restated Certificate of Incorporation of the Registrant, as --
filed with the Secretary of State of Delaware on April 6,
1987 (Incorporated by reference to Registrant's
Registration Statement No. 33-14913, Exhibit 3.1)
3.1.2 Agreement and Plan of Merger dated as of April 15, 1987, --
between Winston Resources, Inc. (New York) and the
Registrant, as filed with the Secretary of State of
Delaware on April 20, 1987 (Incorporated by reference to
Registrant's Registration Statement No. 33-14913, Exhibit
3.2)
3.1.3 Certificate of Amendment of Restated Certificate of --
Incorporation of the Registrant, as filed with the
Secretary of State of Delaware on June 11, 1993
(Incorporated by reference to Registrant's Form 10- KSB for
the year ended December 31, 1993)
3.1.4 Composite Copy of Restated Certificate of Incorporation of --
the Registrant, as amended (Incorporated by reference to
Registrant's Form 10-K for the year ended December 31,
1987, Exhibit 3.3)
3.2 By-laws of the Registrant, as amended June 11, 1993 --
(Incorporated by reference to Registrant's Form 10-KSB for
the year ended December 31, 1993)
4 Registrant's 1996 Stock Plan 10
5.1 Opinion of Counsel as to Legality of Securities Being
Registered 22
23.1 Consent of Ernst & Young LLP 24
23.2 Consent of Richard A. Eisner & Company LLP 26
23.3 Consent of Counsel (contained in Exhibit 5.1 hereto) *
24 Power of Attorney (see signature page) **
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* Contained in Exhibit 5.1 of this Registration Statement.
** See Page 7 of this Registration Statement.
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