SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
---------------------
March 22, 1999
Date of Report (Date of earliest event reported)
BESICORP LTD.
(Exact name of registrant as specified in its charter)
New York 0-25209 14-1809375
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
Incorporation)
1151 Flatbush Road, Kingston, New York 12401
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (914) 336-7700
Item 1. Changes in Control of Registrant
On March 22, 1999, Oldco (as defined) effected the Spin-Off (as
defined) of Newco (as defined). Prior to the Spin-Off, Newco was a wholly owned
subsidiary of Oldco. Pursuant to the Spin-Off, one share of Newco Common Stock
was distributed to the Entitled Holders (as defined) for each 25 shares of Oldco
Common Stock held by such persons. Cash was distributed in lieu of the issuance
of fractional shares. Mr. Michael F. Zinn, Chairman of the Board, Chief
Executive Officer and President of Newco (and who served in such capacities with
Oldco prior to the Merger (as defined)), owned as of January 31, 1999
approximately 51.7% of the Common Stock of Oldco and after giving effect to the
Spin-Off (and certain other transfers of Oldco's securities effected by him),
owns between 47.5% and 48.5% of the Newco Common Stock (without giving effect to
the shares of Newco Common Stock owned by the Zinn Family Charitable Trust
(ownerhip of which is disclaimed by Michael Zinn) which constitutes
approximately 8.2% of the outstanding shares of Newco Common Stock). The
Entitled Holders did not pay for the shares of Newco Common Stock distributed in
the Spin-Off. The executive officers and directors of Newco prior to the Spin-
Off (i.e., the directors and executive officers of Oldco prior to the Merger)
continue to serve in such capacities with Newco. See "Item 2 - Acquisition or
Disposition of Assets."
Item 2. Acquisition or Disposition of Assets
On March 22, 1999, Besicorp Group Inc. ("Oldco") and Besicorp Ltd.
("Newco"),effected the Contribution (as defined). The Contribution was followed
by the Spin-Off and the Merger (as defined).
The Contribution
Pursuant to the Contribution, Oldco transferred or caused to be
transferred to Newco (which was then a wholly owned subsidiary of Oldco) certain
of its subsidiaries (the "Distributed Subsidiaries") and assets and caused Newco
to assume certain liabilities, as described below. The transfer of the these
subsidiaries and assets and the assumption of these liabilities is referred to
herein as the "Contribution."
The Distributed Subsidiaries include all the subsidiaries and
affiliates of Oldco other than those which owned interests in the partnerships
(the "Partnerships") primarily those which formerly owned the power plants that
supplied electrical power and capacity to Niagara Mohawk Power Corporation. (The
subsidiaries that were not transferred to Newco are referred to collectively
herein as the "Remaining Subsidiaries".) The assets that were contributed to
Newco include (i) all of Oldco's assets pertaining to the photovoltaic and power
plant development businesses (including interests in the power plant projects
and initiatives in India, Brazil, Mexico, and Kingston, New York) and, with
certain exceptions, trade receivables, furniture, fixtures and equipment related
to these businesses; (ii) the amount necessary so that Newco and the Distributed
Subsidiaries had $1.75 million in cash; (iii) Oldco's interests in the
Partnerships; and (iv) all other assets not retained by Oldco. The liabilities
that were assumed by Newco or its subsidiaries were all the liabilities of Oldco
other than the Permitted Liabilities (as defined). The Permitted Liabilities are
(i) the actual or accrued liabilities of Oldco or any Remaining Subsidiary for
unpaid federal income taxes for the current fiscal year ended March 31, 1999
(the "Fiscal
Year") based on the consolidated net income of Oldco through the effective date
of the Merger; (ii) the liability of Oldco or its subsidiaries for New York
State Income Taxes for Oldco's Fiscal Year; and (iii) various intercompany
liabilities between Oldco and the Remaining Subsidiaries. Accordingly, all other
liabilities of Oldco were assumed by Newco or its subsidiaries. (The only
material liabilities that Newco is aware of are the contingent liabilities
arising out of legal proceedings to which Oldco is a party, indebtedness of
approximately $135,000 and accounts payable and similar indebtedness incurred in
the ordinary course of business.)
Contemporaneously with effecting the Contribution, one or more of
Oldco, Newco, Merger Sub (as defined), and Acquisition (as defined) entered into
the following agreements governing various matters and ongoing relationships
between Acquisition, the Surviving Corporation (i.e., Besicorp Group Inc.
following the Merger) and Newco following the Spin-Off and the Merger: (i) the
Indemnification Agreement (the "Indemnification Agreement"), which obligates
Newco to indemnify Merger Sub, Acquisition, the Surviving Corporation, and
certain other parties from any damage they suffer arising out of, among other
things, Oldco's breach of representations and warranties set forth in the Plan
of Merger (as defined) and certain liabilities, taxes and litigation of Oldco
other than the liabilities retained by the Surviving Corporation, and (ii) the
Escrow Agreement (the "Escrow Agreement"), which governs the $6.5 million placed
by Oldco in escrow to, among other things, (a) satisfy Newco's obligations under
the Indemnification Agreement and (b) provide for the payment of, among other
things, certain litigation and related costs. Following the fifth anniversary of
the closing of the Merger (i.e., March 22, 1999) and the satisfaction of certain
conditions, the remainder of the escrow fund, if any, will be released to Newco.
The Spin-Off
Immediately following the Contribution on March 22, 1999 (the "Spin-Off
Record Date"), the Board of Directors of Oldco declared the payment of a stock
dividend payable to the holders of record of Oldco Common Stock (the "Entitled
Holders") at the close of business on such date (the "Spin-Off"). The stock
dividend declared was one share of Newco Common Stock for every 25 shares of
Oldco Common Stock outstanding on the Spin-Off Record Date. No shares of Newco
Common Stock were issued with respect to shares of Oldco Common Stock held in
treasury. No fractional shares of Newco Common Stock were issued. Entitled
Holders, in lieu of fractional shares (but not whole shares) of Newco Common
Stock are to receive $1.72 in cash for each one twenty-fifth (1/25th) of a share
of Newco Common Stock they would have otherwise received and will receive, in
addition, such number of whole shares of Newco Common Stock as to which they are
entitled.
The Merger
Following the Spin-Off, the merger (the "Merger") contemplated by the
Agreement and Plan of Merger dated as of November 23, 1998 (as amended, the
"Plan of Merger"), by and among Oldco, BGI Acquisition LLC ("Acquisition"), a
Wyoming limited liability company, and BGI Acquisition Corp. ("Merger Sub"), a
New York corporation and a wholly owned subsidiary
of Acquisition, was consummated on March 22, 1999. As a result of the Merger,
Merger Sub was merged with and into Oldco, with Oldco being the surviving
corporation and wholly owned by Acquisition. Newco is obligated to indemnify
Merger Sub, Acquisition and certain other parties from damages they suffer
arising out of the breach of Oldco's representations and warranties in the Plan
of Merger (as defined) and the $6.5 million placed in escrow pursuant to the
Escrow Agreement to, among other things, satisfy such indemnification
obligation. Following the fifth anniversary of the closing of the Merger and the
satisfaction of certain conditions, the remainder of the escrow fund, if any,
will be released to Newco.
Item 7. Financial Statements and Exhibits
(a) Financial Statements
The financial statements required by Item 7(a) will be filed with the
Securities and Exchange Commission not later than June 7, 1999.
(b) Pro Forma Financial Information
The pro forma financial information required by Item 7(b) will be filed
with the Securities and Exchange Commission not later than June 7, 1999.
(c) Exhibits
2.1 Contribution and Distribution Agreement by and between Besicorp
Ltd. ("Newco") and Besicorp Group Inc. ("Oldco"). The exhibits and schedules to
such agreement are identified below:
Exhibits 3.3 the Lease
3.4-a Indemnification Agreement
3.4-b Escrow Agreement
5.2(a) Bills of Sale
Schedules 1.1(a) Contributed Realty
1.1(p) Claims
1.2(a) Contributed Subsidiaries
1.3(a) Section 1.3(a) Securities
1.3(b) Retained Instruments
1.4 Retained Subsidiaries
1.6 Retained Liabilities
1.7(b) Employee Plans
10.1 Form of Indemnification Agreement by and among the Company, BGI
Acquisition LLC ("Acquisition") and BGI Acquisition Corp. ("Merger Sub")1
10.2 Form of Escrow Agreement by and among the Newco, Acquisition, Oldco and
Merger Sub1
- ------------------
1 Incorporated by reference to the corresponding exhibit filed with
Besicorp Ltd.'s Form 10-SB filed with the Securities and Exchange
Commission on or about December 23, 1998.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
BESICORP LTD.
/s/Michael J. Daley
----------------
Michael J. Daley
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
Dated: April 6, 1999
Kingston, New York