As filed with the Securities and Exchange Commission on May 1, 2001
Registration No. 333-59346
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Amendment No.1 to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ELECTRIC FUEL CORPORATION
(Exact name of Registrant as specified in its charter)
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Delaware 95-4302784
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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Electric Fuel Corporation Matt Collins
632 Broadway, Suite 301 Electric Fuel Corporation
New York, New York 10012 632 Broadway, Suite 301
Tel: (212) 529-9200 Fax: (212) 529-5800 New York, New York 10012
(Address, including ZIP code, and Tel: (212) 529-9200 Fax: (212) 529-5800
telephone number, including (Address, including ZIP code, and
area code, of Registrant's telephone number, including area code,
principal executive offices) of agent for service)
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Copies of all communications, including communications
sent to the agent for service, to:
Thomas E. Willett, Esq. Yaakov Har-Oz, Adv.
Harris Beach LLP Electric Fuel Limited
130 East Main Street Western Industrial Zone
Rochester, New York 14604 AND Beit Shemesh 99000, Israel
Tel: (716) 232-4440 Tel: +(972-2) 990-6623
Fax: (716) 232-6925 Fax: +(972-2) 990-6688
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed Amount of
Amount to be offering price maximum aggregate registration
Title of each class of securities to be registered(1) registered per unit offering price(2) fee (3)(4)
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Common Stock, par value $0.01 per share (5) (5) $20,000,000 $426.17
Warrants to purchase Common Stock
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/1/ The common stock and warrants covered by this Registration Statement may be
sold or otherwise distributed separately or together. This Registration
Statement covers offers, sales and other distributions of the securities
listed in this table from time to time at prices to be determined, as well
as shares of common stock issuable upon the exercise of the common stock
purchase warrants.
/2/ Estimated solely for purposes of computing the amount of the registration
fee pursuant to Rule 457(o) under the Securities Act. In no event will the
aggregate public offering price of the securities registered hereby exceed
$20,000,000.
/3/ The registration fee has been calculated pursuant to Rule 457(o) under the
Securities Act.
/4/ Pursuant to Rule 429 under the Securities Act, 1,100,000 shares of common
stock and 600,000 warrants are being carried forward from Registration
Statement on Form S-3 (No. 333-49628 (originally filed November 9, 2000)),
as amended, which registration statement carried forward securities from
Registration Statement No. 333-33986 (originally filed April 4, 2000)), for
inclusion in the Prospectus filed herewith. Registration fees aggregating
$4,573.83 have previously been paid with respect to these "carried-forward"
securities. The fees for such securities were paid in 2000 and were
calculated using the registration fee for fiscal year 2000. The $426.17
registration fee is the difference between the registration fees previously
paid and the registration fee for securities being registered by this
Registration Statement.
/5/ The amount to be registered and the proposed maximum offering price per
unit have been omitted pursuant to Rule 457(o) under the Securities Act of
1933 and General Instruction II.D of Form S-3.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The information in this preliminary prospectus is not complete and may be
changed. We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell these securities and is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
Subject to completion, preliminary prospectus dated May 1, 2001
Electric Fuel/R/
Corporation
$20,000,000
Common Stock
Common Stock Warrants
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We may offer from time to time in one or more issuances, (1) shares of our
common stock and (2) warrants to purchase shares of our common stock. In this
Prospectus, we refer to the common stock and the warrants collectively as the
"Securities."
The common stock and the warrants may be offered and sold separately or
together. The aggregate public offering price of the Securities that we are
offering will not exceed $20,000,000. We will offer the Securities in an amount
and on terms that market conditions will determine at the time of the offering.
Our common stock is listed on the Nasdaq National Market under the ticker symbol
"EFCX." The last reported sale price for the common stock on April 18, 2001 as
quoted on the Nasdaq National Market was $3.00 per share.
See "Risk Factors" on page 3 for various risks that you should consider
before you purchase any securities.
We will provide you with the specific terms of the particular Securities
being offered in supplements to this prospectus. You should read this prospectus
and any supplement carefully before you invest. This prospectus may not be used
to sell Securities unless accompanied by a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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The date of this prospectus is , 2001
Table of Contents
Page
----
About this Prospectus ................................................ 2
Where You Can Find Additional Information ............................ 2
Incorporation of Documents by Reference .............................. 3
Risk Factors ......................................................... 3
Information Regarding Forward-Looking Statements ..................... 9
About Electric Fuel Corporation ...................................... 9
Use of Proceeds ...................................................... 11
Plan of Distribution ................................................. 11
Description of Capital Stock ......................................... 12
Description of Common Stock Warrants ................................. 14
Legal Matters ........................................................ 15
Experts .............................................................. 15
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Electric Fuel
Corporation ("we" or "Electric Fuel") filed with the Securities and Exchange
Commission using a "shelf" registration process. Using this process, we may
offer the Securities described in this prospectus in one or more offerings with
a total public offering price of up to $20,000,000. This prospectus provides you
with a general description of the Securities we may offer. Each time we offer
Securities, we will provide you a prospectus supplement and any pricing
supplement that will contain information about the specific terms of that
particular offering. The prospectus supplement or pricing supplement may also
add, update or change information contained in this prospectus. To obtain
additional information that may be important to you, you should read the
exhibits filed by us with this registration statement or our other filings with
the Securities and Exchange Commission. You also should read this prospectus and
any prospectus supplement or pricing supplement together with the additional
information described under the heading "Where You Can Find More Information."
We are offering to sell, and seeking offers to buy, the Securities only
in states where offers and sales are permitted.
Unless the context otherwise requires, references to us -- Electric
Fuel -- refer to Electric Fuel Corporation and our subsidiaries.
Our executive offices are located at 632 Broadway, Suite 301, New York,
New York 10012. Our telephone number at that address is (212) 529-9200, and our
Internet address is www.electric-fuel.com. Information on our website does not
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constitute part of this prospectus.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You can read and copy
any materials we file with the Securities and Exchange Commission at its Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549 and at its
regional offices located at Seven World Trade Center, New York, New York 10048
and at 500 West Madison Street, Chicago, Illinois 60661. You can obtain
information about the operations of the Securities and Exchange Commission
Public Reference Room by calling the Securities and Exchange Commission at
1-800-SEC-0330. The Securities and Exchange Commission also maintains a Website
that contains information we file electronically with the Securities and
Exchange Commission, which you can access over the Internet at
http://www.sec.gov.
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This prospectus is part of a registration statement we have filed with
the Securities and Exchange Commission relating to the Securities. As permitted
by Securities and Exchange Commission rules, this prospectus does not contain
all of the information we have included in the registration statement and the
accompanying exhibits we file with the Securities and Exchange Commission. You
may refer to the registration statement and the exhibits for
2
more information about us and the Securities. The registration statement
and the exhibits are available at the Securities and Exchange Commission's
Public Reference Room or through its Web site.
INCORPORATION OF DOCUMENTS BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information we incorporate by reference is an important part of this prospectus,
and later information that we file with the Securities and Exchange Commission
will automatically update and supersede some of this information. We incorporate
by reference the documents listed below, and any future filings we make with the
Securities and Exchange Commission under Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until we sell all of the Securities, or
until we terminate this offering. The documents we incorporate by reference are:
o our annual report on Form 10-K for the year ended December 31,
2000; and
o the description of our common stock contained in our registration
statement on Form 8-A, Commission File No. 0-23336, as filed with
the Securities and Exchange Commission on February 2, 1994.
We will provide to each person, including any beneficial owner, to whom
this prospectus and applicable prospectus supplement is delivered, upon request,
a copy of these filings (other than an exhibit to the filings unless we have
specifically incorporated that exhibit by reference into the filing), at no
cost, by writing or telephoning us at the following address:
Electric Fuel Corporation
632 Broadway, Suite 301
New York, New York 10012
Attention: Chief Executive Officer
(212) 529-9200
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We may only use this
prospectus to sell Securities if it is accompanied by a prospectus supplement.
We are offering to sell, and seeking offers to buy, these Securities only in
states where the offer is permitted. You should not assume that the information
in this prospectus or any applicable prospectus supplement is accurate as of any
date other than the date on the front of those documents.
RISK FACTORS
You should consider carefully the following risk factors in addition to
the other information in this prospectus before purchasing our common stock or
warrants. Investing in our common stock or warrants involves a high degree of
risk. Any of the following risks could seriously harm our business and could
result in a complete loss of your investment. See also the section entitled
"Information Regarding Forward-Looking Statements" on page 9, below.
We have had a history of losses and may incur future losses.
We were incorporated in 1990 and began our operations in 1991. We have
funded our operations principally from funds raised in each of the initial
public offering of our common stock in February 1994, the offering of our common
stock in February 1996, a private placement of our common stock in October 1996,
and recent private placements of our common stock in December 1999, January
2000, May 2000 and November 2000; funds from licensing arrangements; research
contracts and supply contracts; funds received under research and development
grants from the Government of Israel; and sales of Instant Power batteries,
Instant Power chargers, and lifejacket lights. We incurred significant operating
losses for the years ended December 31, 1996, 1997, 1998, 1999 and 2000, and
expect to continue to incur significant operating losses in 2001. These losses
may increase as we expand
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our research and development activities and establish production facilities,
and these losses may fluctuate from quarter to quarter. There can be no
assurance that we will ever achieve profitability or that our business will
continue to exist.
We need significant amounts of capital to operate and grow our business.
We require substantial funds to conduct the necessary research,
development and testing of our products; to establish commercial scale
manufacturing facilities; and to market our products. In order to satisfy
existing orders of batteries in commercial quantities, we need to implement our
automated production line and, in the future, may need to upgrade or expand our
automated production line to satisfy future orders. We plan to expand both sales
and production activities, which will require additional funding. We continue to
seek additional funding, including through the issuance of equity or debt
securities. However, there can be no assurance that we will obtain any such
additional financing in a timely manner and on acceptable terms. If additional
funds are raised by issuing equity securities, stockholders may incur further
dilution. If additional funding is not secured, we will have to modify, reduce,
defer or eliminate parts of our anticipated future commitments and/or programs.
We cannot assure you of market acceptance of our products.
In 2000, we began commercial deliveries of our cell phone battery and
charger products. However, our battery and charger for cell phones have not yet
been widely accepted by the consumer products market for this application.
Furthermore, while we have developed batteries and chargers for several models
of cell phones and PDAs, we do not have such products for many models. We cannot
assure you that the Electric Fuel cell phone battery or charger will be
competitive either in terms of price or performance or that we will be able to
sell our cell phone batteries or chargers in commercial quantities. While we
have successfully marketed our products to retailers such as Wal-Mart, certain
of our customers have indicated to us in response to slower than anticipated
initial sales results that we would benefit from educating consumers as to the
advantages of disposable batteries and chargers for cellphones and PDAs.
Other than our cell phone battery and charger and a signal light
powered by water-activated batteries for use in life jackets and other rescue
apparatus, we currently have no commercial products available for sale. While we
expect to increase production of our cell phone batteries and chargers to
commercial levels in 2001, significant resources will be required to develop our
capacity to produce cell phone batteries and chargers on a commercial scale.
Additional development will also be necessary in order to commercialize our
technology and each of the components of the Electric Fuel System for electric
vehicles and defense products. We cannot assure you that we will be able to
successfully develop, engineer or commercialize our products, technology or
system components, or that we will be able to develop products for commercial
sale or that, if developed, they can be produced in commercial quantities or at
acceptable costs or be successfully marketed. The likelihood of our future
success must be considered in light of the risks, expenses, difficulties and
delays frequently encountered in connection with the operation and development
of a relatively early stage business and with development activities generally.
We believe that public pressure and government initiatives are important
factors in creating an electric vehicle market. However, there can be no
assurance that there will be sufficient public pressure or that further
legislation or other governmental initiatives will be enacted, or that current
legislation will not be repealed, amended, or have its implementation delayed.
In addition, we are subject to the risk that even if an electric fuel vehicle
market develops, a different form of zero emission or low emission vehicle will
dominate the market. In addition, we cannot assure you that other solutions to
the problem of containing emissions created by internal combustion engines will
not be invented, developed and produced. Any other solution could achieve
greater market acceptance than electric vehicles. The failure of a significant
market for electric vehicles to develop would have a material adverse effect on
our ability to commercialize this aspect of our technology. Even if a
significant market for electric vehicles develops, there can be no assurance
that our technology will be commercially competitive within that market.
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We will need to develop the experience to manufacture our products in commercial
quantities and at competitive prices.
We currently have limited experience in manufacturing in commercial
quantities and have, to date, produced only limited quantities of components of
the batteries for electric vehicles. In order for us to be successful in the
commercial market, our products must be manufactured to meet high quality
standards in commercial quantities at competitive prices. The development of the
necessary manufacturing technology and processes will require extensive lead
times and the commitment of significant amounts of financial and engineering
resources, which may not be available to us. We cannot assure you that we will
successfully develop this technology or these processes. Moreover, we cannot
assure you that we will be able to successfully implement the quality control
measures necessary for commercial manufacturing.
The price of our common stock is volatile.
The market price of our common stock has been volatile in the past and
may change rapidly in the future. The following factors, among others, may cause
significant volatility in our stock price:
o Announcements by us, our competitors or our customers;
o The introduction of new or enhanced products and services by us or
our competitors;
o Changes in the perceived ability to commercialize our technology
compared to that of our competitors;
o Rumors relating to our competitors or us;
o Actual or anticipated fluctuations in our operating results; and
o General market or economic conditions.
Our field of business is highly competitive.
The competition to develop consumer batteries, defense and safety
products and electric vehicle battery systems, and to obtain funding for the
development of these products is, and is expected to remain, intense. Our
technology competes with other battery technologies, as well as other zinc-air
technologies. The competition consists of development stage companies, major
international companies and consortia of such companies, including battery
manufacturers, automobile manufacturers, energy production and transportation
companies, consumer goods companies and defense contractors, many of which have
financial, technical, marketing, sales, manufacturing, distribution and other
resources significantly greater than ours.
Various battery technologies are being considered for use in electric
vehicles, consumer batteries and defense and safety products by other
manufacturers and developers, including the following: lead-acid,
nickel-cadmium, nickel-iron, nickel-zinc, nickel-metal hydride, sodium-sulfur,
sodium-nickel chloride, zinc-bromine, lithium-ion, lithium-polymer, lithium-iron
sulfide, primary lithium, rechargeable alkaline and zinc-air. Additionally, some
manufacturers of primary alkaline batteries offer alkaline battery packs for
cell phone users.
Some of the components of our technology and our products pose potential safety
risks which could create potential liability exposure for us.
Some of the components of our technology contain elements that are known to
pose potential safety risks. Also, because electric vehicle batteries contain
large amounts of electrical energy, they may cause injuries if not handled
properly. In addition to these risks, and although we incorporate safety
procedures in our research, development and manufacturing processes, there can
be no assurance that accidents in our facilities will not occur. Any accident,
whether occasioned by the use of all or any part of our products or technology
or by our manufacturing operations, could adversely affect commercial acceptance
of our products and could result in significant production delays or claims for
damages resulting from injuries. Any of these occurrences would materially
adversely affect our operations and financial condition.
5
Failure to receive required permits from or to comply with the various
regulatory regimes we are subject to could adversely affect our business.
Regulations in Europe, Israel, the United States and other countries
impose various controls and requirements relating to various components of our
technology. While we believe that our current and contemplated operations
conform to those regulations we cannot assure you that we will not be found to
be in non-compliance. We have applied for, and received, the necessary permits
under the Israel Dangerous Substances Law, 5753-1993, required for the use of
potassium hydroxide and zinc metal. However, there can be no assurance that
changes in regulations will not impose costly compliance requirements on us or
otherwise subject us to future liabilities.
Our business is dependent on patents and proprietary rights that may be
difficult to protect and could affect our ability to compete effectively.
Our ability to compete effectively will depend on our ability to
maintain the proprietary nature of our technology and manufacturing processes
through a combination of patent and trade secret protection, non-disclosure
agreements and licensing arrangements. We hold patents, or patent applications,
covering elements of our technology in the United States and in Europe. In
addition, we have patent applications pending in the United States and in
foreign countries, including the European Community, Israel and Japan. We intend
to continue to file patent applications covering important features of our
technology. We cannot assure you, however, that patents will issue from any of
these pending applications or, if patents issue, that the claims allowed will be
sufficiently broad to protect our technology. In addition, we cannot assure you
that any of our patents will not be challenged or invalidated or that any of our
issued patents will afford protection against a competitor.
Litigation, or participation in administrative proceedings, may be
necessary to protect our patent position. This type of litigation can be costly
and time consuming, and this could harm us even if we were to be successful in
the litigation. The invalidation of patents owned by or licensed to us could
have a material adverse effect on our business. In addition, patent applications
filed in foreign countries are subject to laws, rules and procedures that differ
from those of the United States. Therefore, there can be no assurance that
foreign patent applications related to patents issued in the United States will
be granted. Furthermore, even if these patent applications are granted, some
foreign countries provide significantly less patent protection than the United
States. In the absence of patent protection, and despite our reliance upon our
proprietary confidential information, our competitors may be able to use
innovations similar to those used by us to design and manufacture products
directly competitive with our products. In addition, no assurance can be given
that others will not obtain patents that we will need to license or design
around. To the extent any of our products are covered by third-party patents, we
could require a license under such patents to develop and market our patents.
Despite our efforts to safeguard and maintain our proprietary rights,
we may not be successful in doing so. In addition, competition is intense, and
there can be no assurance that our competitors will not independently develop or
patent technologies that are substantially equivalent or superior to our
technology. Moreover, in the event of patent litigation, we cannot assure you
that a court would determine that we were the first creator of inventions
covered by our issued patents or pending patent applications or that we were the
first to file patent applications for those inventions. If existing or future
third-party patents containing broad claims were upheld by the courts or if we
were found to infringe third party patents, we may not be able to obtain the
required licenses from the holders of such patents on acceptable terms, if at
all. Failure to obtain these licenses could cause delays in the introduction of
our products or necessitate costly attempts to design around such patents, or
could foreclose the development, manufacture or sale of our products. We could
also incur substantial costs in defending ourselves in patent infringement suits
brought by others and in prosecuting patent infringement suits against
infringers.
We also rely on trade secrets and proprietary know-how that we seek to
protect, in part, through non-disclosure and confidentiality agreements with our
customers, employees, consultants, strategic partners and potential strategic
partners. We cannot assure you that these agreements will not be breached, that
we would have adequate remedies for any breach or that our trade secrets will
not otherwise become known or be independently developed by competitors.
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We are dependent on key personnel and our business would suffer if we fail to
retain them.
We are highly dependent on certain members of our management and
engineering staff, and the loss of the services of one or more of these persons
could adversely affect us. We are especially dependent on the services of our
President and Chief Executive Officer, Yehuda Harats, and our Chairman of the
Board of Directors and Chief Financial Officer, Robert S. Ehrlich. The loss of
either of these persons could have a material adverse effect on us. We are party
to employment agreements with Messrs. Harats and Ehrlich, each of which
agreements expires in 2002, with an option on our part to extend to 2003. We do
not have key-man life insurance.
We are subject to significant influence by some stockholders that may have the
effect of delaying or preventing a change in control.
As of April 15, 2001, our directors, executive officers and principal
stockholders and their affiliates collectively owned approximately 35% of the
outstanding shares of our common stock. As a result, these stockholders are able
to exercise significant influence over matters requiring stockholder approval,
including the election of directors and approval of significant corporate
transactions. This concentration of ownership may have the effect of delaying or
prevent a change in control.
If we are unable to manage our growth, our operating results will be impaired.
We are currently experiencing a period of development activity which
could place a significant strain on our personnel and resources. Our activity
has resulted in increased levels of responsibility for both existing and new
management personnel. Many of our management personnel have had limited or no
experience in managing growing companies. We have sought to manage our current
and anticipated growth through the recruitment of additional management and
technical personnel and the implementation of internal systems and controls.
However, our failure to manage growth effectively could adversely affect our
results of operations.
We may be subject to increased United States taxation.
We believe that we and our wholly-owned Israeli subsidiary, Electric
Fuel Limited, will be treated as personal holding companies for purposes of the
personal holding company (PHC) rules of the Internal Revenue Code of 1986. Under
the PHC rules, a PHC is subject to a special 39.6% tax on its "undistributed PHC
income," in addition to regular income tax. We believe that we and Electric Fuel
Limited have not had any material undistributed PHC income. However, no
assurance can be given that we and Electric Fuel Limited will not have
undistributed PHC income in the future.
Approximately 25.8% of the stock of Electric Fuel Limited was owned
(indirectly by application of certain attribution rules) as of April 15, 2001 by
two United States citizens. If 50% of our shares is ever acquired or deemed to
be acquired by five or fewer individuals (including, if applicable, those
individuals who currently own an aggregate of 25.8% of our shares) who are
United States citizens or residents, Electric Fuel Limited would satisfy the
foreign personal holding company (FPHC) stock ownership test under the Internal
Revenue Code, and we could be subject to additional U.S. taxes (including PHC
tax) on any "undistributed FPHC income" of Electric Fuel Limited. We believe
that Electric Fuel Limited has not had any material undistributed FPHC income.
However, no assurance can be given that Electric Fuel Limited will not become a
FPHC and have undistributed FPHC income in the future.
A significant portion of our operations takes place in Israel.
The offices and facilities of our principal subsidiary are located in
Israel. Although we expect that most of our sales will be made to customers
outside Israel, we are nonetheless directly affected by economic, political and
military conditions in that country. Accordingly, any major hostilities
involving Israel or the interruption or curtailment of trade between Israel and
its present trading partners could have a material adverse effect on our
operations. Since the establishment of the State of Israel in 1948, a state of
hostility has existed, varying in degree and intensity, between Israel and the
Arab countries. Historically, Arab states have boycotted any direct trade with
Israel and to varying degrees have imposed a secondary boycott on any company
carrying on trade with or doing business in Israel. Although in October 1994,
the states comprising the Gulf Cooperation Council (Saudi Arabia,
7
the United Arab Emirates, Kuwait, Dubai, Bahrain and Oman) announced that
they would no longer adhere to the secondary boycott against Israel, and Israel
has entered into certain agreements with Egypt, Jordan, the Palestine Liberation
Organization and the Palestinian Authority, no prediction can be made as to
whether a full resolution of these problems will be achieved or as to the nature
of any such resolution.
Many of our employees are currently obligated to perform annual reserve
duty in the Israel Defense Forces and are subject to being called for active
military duty at any time. No assessment can be made of the full impact of such
requirements on us in the future, particularly if emergency circumstances occur,
and no prediction can be made as to the effect on the Company of any expansion
of these obligations.
Any failure to obtain the tax benefits from the State of Israel that we expect
to receive could negatively impact our plans and prospects.
We benefit from various Israeli government programs, grants and tax
benefits, particularly as a result of the "approved enterprise" status of a
substantial portion of our existing facilities and the receipt of grants from
the Office of the Chief Scientist of the Israeli Ministry of Industry and Trade.
To be eligible for some of these programs, grants and tax benefits, we must
continue to meet certain conditions, including producing in Israel and making
specified investments in fixed assets. If we fail to meet such conditions in the
future, we could be required to refund grants already received, adjusted for
inflation and interest. From time to time, the government of Israel has
discussed reducing or eliminating the benefits available under approved
enterprise programs. We cannot assure you that these programs and tax benefits
will be continued in the future at their current levels or at all. The
Government of Israel has announced that programs receiving approved enterprise
status in 1996 and thereafter will be entitled to a lower level of government
grants than was previously available. The termination or reduction of certain
programs and tax benefits (particularly benefits available to us as a result of
the approved enterprise status of a substantial portion of our existing
facilities and approved programs and as a recipient of grants from the office of
the Chief Scientist) could have a material adverse effect on our business,
results of operations and financial condition. In addition, our Israeli
subsidiary has granted a floating charge over all of its assets as a security to
the State of Israel to secure its obligations under the approved enterprise
programs.
Exchange rate fluctuations between the dollar and the NIS may negatively affect
our earnings.
Although a substantial majority of our revenues and a substantial
portion of our expenses are denominated in U.S. dollars, a significant portion
of our costs, including personnel and facilities-related expenses, is incurred
in New Israeli Shekels (NIS). Inflation in Israel will have the effect of
increasing the dollar cost of our operations in Israel, unless it is offset on a
timely basis by a devaluation of the NIS relative to the dollar.
Our warrants will not be qualified or listed for trading.
There is no public trading market for our warrants, and as of now we do not
intend to take any steps to list our warrants on any established stock exchange
or a national market system, including without limitation the Nasdaq National
Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market. Therefore,
unless a trading market in the warrants were to develop, it will be very
difficult to sell the warrants other than in a face-to-face transaction at
privately negotiated prices.
A substantial number of our shares are available for sale in the public market
and sales of those shares could adversely affect our stock price.
Sales of a substantial number of shares of common stock into the public
market, or the perception that those sales could occur, could adversely affect
our stock price or could impair our ability to obtain capital through an
offering of equity securities. As of April 15, 2001, we had 21,980,610 shares of
common stock issued and outstanding. Of these shares, 14,932,347 are freely
transferable without restriction under the Securities Act of 1933 and 7,048,263
may be sold subject to the volume restrictions, manner-of-sale provisions and
other conditions of Rule 144 under the Securities Act of 1933.
8
Exercise of the warrants could adversely affect our stock price.
Holders of our warrants will probably exercise them only at a time
when the price of our common stock is higher than the exercise price of the
warrants. Accordingly, we may be required to issue shares of our common stock at
a price substantially lower than the market price of our stock. This could
adversely affect our stock price.
This prospectus must be kept current in order for our shares of common stock
underlying the warrants to be publicly sold.
Our shares of common stock to be issued upon exercise of the warrants
may be publicly sold only if, at the time of such sale, this prospectus is
current. Although we intend to keep this prospectus current, there can be no
assurances that we will, in fact, do so. In the absence of a current prospectus,
the value of the warrants and the shares issuable upon exercise of the warrants
could be substantially reduced.
Investors should not purchase our common stock with the expectation of receiving
cash dividends.
We currently intend to retain any future earnings for funding growth
and, as a result, do not expect to pay any cash dividends in the foreseeable
future.
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
When used in this prospectus, the words "expects," "anticipates,"
"estimates" and similar expressions identify forward-looking statements. We
believe that these statements are "forward-looking" statements within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. These statements, which include statements under the caption "Risk Factors"
and elsewhere in this prospectus, refer to the stage of development of our
products, the uncertainty of the market for disposable cell phone batteries,
significant future capital requirements and our plans to implement our growth
strategy, continue our research and development, expand our manufacturing
capacity, develop strategic relationships for marketing and other purposes and
carefully manage our growth. The forward-looking statements also include our
expectations concerning factors affecting the markets for our products.
These forward-looking statements are subject to risks and uncertainties
that could cause actual results to differ materially from the results that we
anticipate. These risks and uncertainties include, but are not limited to, those
risks discussed in this prospectus and in the documents incorporated by
reference in this prospectus.
We assume no obligation to update these forward-looking statements or
to update the reasons actual results could differ materially from the results
anticipated in the forward-looking statements.
You should rely only on the information in this prospectus and the
additional information described under the heading "Where You Can Find More
Information." We have not authorized any other person to provide you with
different information. If anyone provides you with different or inconsistent
information, you should not rely upon it. We are not making an offer to sell
these securities in any jurisdiction where the offer or sale is not permitted.
You should assume that the information in this prospectus was accurate on the
date of the front cover of this prospectus only. Our business, financial
condition, results of operations and prospects may have changed since that date.
ABOUT ELECTRIC FUEL CORPORATION
We are a world leader in primary and refuelable Zinc-Air fuel cell
technology, pioneering advancements in consumer electronics, electric vehicles
and defense and safety products.
We based our line of Instant Power disposable batteries for cellular
telephones on our patented Zinc-Air fuel cell technology. The batteries, which
come fully charged and ready to use right out of the pack, provide con-
9
sumers with up to five times more talk and stand-by time when compared with
conventional batteries (of equivalent size or weight). Instant Power disposable
batteries are currently compatible with select models of Ericsson, Motorola,
Nokia and Samsung cellphones and are on sale at retail outlets throughout the
United States, Europe and Israel, including at such well-known retailers as
Circuit City, CompUSA, Fred Meyer Stores, CarToys, and Wal-Mart (under the
EverActive brand name) , and other cellular and retail stores in the United
States, and at the Carphone Warehouse, BT Retail, and other cellular and retail
stores in the United Kingdom.
Additionally, we recently began selling our new Instant Power charger
for cellphones and PDAs, a pocket-sized recharger weighing less than three
ounces that plugs directly into a cellphone or PDA, allowing it to be recharged
and used on the move without an electrical outlet.
We are also engaged in the design, development and commercialization of
our proprietary battery technology for other portable consumer electronic
devices, such as camcorders, as well as for electric vehicles and defense and
safety product applications. We are also seeking ways to continue to
commercialize our disposable zinc-air battery technology for other such devices,
such as notebook and laptop computers.
We have been engaged in research and development in the field of
zinc-air electrochemistry and battery design for over ten years, as a result of
which we have developed our current technology and its applications. We have
successfully applied our technology to our Instant Power line of disposable
high-capacity zinc-air batteries and rechargers for cellular telephones. We have
also applied our technology to the development of a refuelable zinc-air battery
for powering zero emission electric vehicles, which we have successfully
demonstrated in "on-the-road" programs in Germany, Sweden, Italy, Israel and the
United States. Through these efforts, we have sought to position ourselves as a
world leader in the application of zinc-air technology to innovative primary and
refuelable battery systems.
While zinc-air technology has been in use for over a century in a great
variety of typically low-power devices (such as hearing aids), we have developed
technologies that provide our (environmentally-friendly) batteries with enhanced
performance in both power and energy at a low manufacturing cost. Our
high-energy, high-power zinc-air battery is composed of a zinc anode and an air
(oxygen reduction) cathode. It is different from most other battery technologies
in that one of the electrodes -- the air cathode -- is not consumed during
discharge, but instead acts as a kind of electrochemical membrane that extracts
oxygen from the atmosphere and introduces it into the cell. During discharge,
the oxygen is electrochemically reduced to hydroxide ions at the cathode, and
zinc at the anode is consumed by conversion to zinc oxide. In electric vehicles,
fresh zinc replaces the oxidized zinc in a regeneration process. In our
batteries and rechargers for consumer electronics devices, we construct the
entire pack from low-cost, recyclable components and thus can be disposed of in
an environmentally-safe manner.
To fully utilize our zinc-air battery technology for a wide selection
of applications, we operate in three business segments: Instant Power (formerly
Consumer Batteries), Electric Vehicles, and Defense and Safety Products.
Our Instant Power Division develops and has introduced our first
consumer products: disposable primary zinc-air batteries as a substitute for
lower performing and initially more expensive rechargeable batteries, and a
ready-to-use zinc-air charger for rechargeable cellphone batteries that gives
consumers the option to keep talking on an empty battery during the charging
process. We manufacture and market four different models of our Instant Power
disposable cellphone batteries, suitable for various models of cellphones
produced by Nokia, Motorola, Ericsson and Samsung. Additionally, we manufacture
and market the Instant Power charger for cellphones and PDAs, which lets
wireless users "charge without electricity" and keep talking or working while
recharging, even with a dead battery. These products are currently on sale at
retail outlets throughout the United States, the United Kingdom, certain
countries in Europe and Asia, and Israel. Other consumer and industrial
applications based on the same zinc-air cells are currently under development.
Through our Electric Vehicle Division, we are continuing to focus on
fleet applications of the zinc-air battery system with our partners in Europe
and the United States. The division is implementing, in cooperation with, among
others, General Electric, a program subcontracted to us by the U.S. federal
government for developing an all-electric battery-powered transit bus in Nevada
that is currently in Phase II of development, conducting evaluation of the
system and vehi-
10
cle performance. As of early 2001, the division is also cooperating with a
consortium of industrial companies in Germany to advance the use of zinc-air
technology in fleet vehicles through a demonstration project partially funded by
the German government.
Our Defense and Safety Products Division continues to expand the
development of other uses of the battery technology, including a portable
high-power zinc-air battery pack for the U.S. Army. This division also oversees
our water-activated safety light products (based on our patented
magnesium-cuprous chloride technology) for the commercial aviation and marine
markets and is pursuing further development of the safety products business.
While marketing and establishing automatic production facilities for
our existing products, we also intend to develop new products based on the same
zinc-air cell technology.
We conduct our research, development and production activities
primarily through Electric Fuel Limited at its facility in Beit Shemesh, Israel.
We also have a small battery research and development facility in Auburn,
Alabama that builds and tests prototype cells and batteries.
USE OF PROCEEDS
We cannot guarantee that we will receive any proceeds in connection
with this offering.
Unless we inform you otherwise in the prospectus supplement, we will
use the net proceeds from the sale of the Securities offered by this prospectus,
if any, for general corporate purposes. These purposes may include working
capital and capital expenditures. Pending their uses, we intend to invest the
net proceeds of this offering in interest-bearing bank accounts or in
short-term, interest-bearing, investment-grade securities.
PLAN OF DISTRIBUTION
We may sell the Securities offered under this prospectus through
underwriters, agents or dealers or directly to purchasers.
The distribution of the Securities may be effected from time to time in one
or more transactions:
o at a fixed price or prices, which may be changed from time to time;
o at market prices prevailing at the time of sale;
o at prices related to those prevailing market prices; or
o at negotiated prices.
Each prospectus supplement will describe the method of distribution of the
Securities and any applicable restrictions.
The applicable prospectus supplement will describe the terms of the
offering of the Securities, including the following:
o the name or names of any agents or underwriters;
o the public offering or purchase price;
o any discounts and commissions to be allowed or paid to the agent(s) or
underwriters;
o all other items constituting underwriting compensation;
o any discounts and commissions to be allowed or paid to dealers; and
o any exchanges on which the Securities will be listed.
11
Only the agents or underwriters named in the prospectus supplement are
agents or underwriters in connection with the Securities being offered pursuant
to the applicable prospectus supplement.
If the applicable prospectus supplement indicates, we will authorize
dealers or our agents to solicit offers by various institutions to purchase
offered Securities from us pursuant to contracts that provide for payment and
delivery on a future date. We must approve all institutions, but they may
include, among others:
o commercial and savings banks;
o insurance companies;
o pension funds;
o investment companies; and
o educational and charitable institutions.
The institutional purchaser's obligations under a contract will be subject
only to the condition that the purchase of the offered Securities at the time
delivery is allowed by any laws that govern the purchaser. The dealers and our
agents will not be responsible for the validity or performance of the contracts.
We may sell Securities directly to the public, without the use of
underwriters, dealers or agents.
Underwriters, dealers and agents participating in a sale of Securities may
be deemed to be underwriters as defined in the Securities Act of 1933, and any
discounts and commissions received by them and any profit realized by them on
resale of the Securities may be deemed to be underwriting discounts and
commissions under the Securities Act. We may have agreements with the agents,
underwriters and dealers to indemnify them against various civil liabilities,
including liabilities under the Securities Act, or to contribute to payments
that the agents, underwriters or dealers may be required to make as a result of
those civil liabilities.
Except for our common stock, which is currently listed on the Nasdaq
National Market system under the symbol "EFCX," unless we indicate differently
in a prospectus supplement, we will not list the Securities on any, or in the
case of our common stock, on any other, securities exchange. If we sell a
security offered under this prospectus to an underwriter for public offering and
sale, the underwriter may make a market for that security but is not obligated
to do so. Therefore, we cannot give any assurances to you concerning the
liquidity of any security offered under this prospectus.
Agents and underwriters and their affiliates may be customers of, engage in
transactions with, or perform services for us or our subsidiary companies in the
ordinary course of business.
DESCRIPTION OF CAPITAL STOCK
General
Our authorized capital stock consists of 100,000,000 shares of common
stock par value $.01 per share, and 1,000,000 shares of preferred stock, par
value $.01 per share. As of April 15, 2001, 21,980,610 shares of common stock
were issued and outstanding, 5,333 shares of common stock were held as treasury
shares, and no shares of preferred stock were issued and outstanding.
The additional shares of our authorized stock available for issuance might
be issued at times and under circumstances so as to have a dilutive effect
on earnings per share and on the equity ownership of the holders of our common
stock. The ability of our board of directors to issue additional shares of stock
could enhance the board's ability to negotiate on behalf of the stockholders in
a takeover situation but could also be used by the board to make a
change-in-control more difficult, thereby denying stockholders the potential to
sell their shares at a premium and entrenching current management. The following
description is a summary of the material provisions of
12
our capital stock. You should refer to our restated certificate of
incorporation, as amended, and bylaws for additional information.
Common Stock
The holders of common stock are entitled to one vote for each share
held of record on all matters submitted to a vote of stockholders. Except as
required under Delaware law or the rules of the Nasdaq National Market, the
rights of stockholders may not be modified otherwise than by a vote of a
majority or more of the shares outstanding. Subject to preferences that may be
applicable to any outstanding shares of preferred stock, the holders of common
stock are entitled to receive ratably any dividends as may be declared by the
board of directors out of funds legally available for the payment of dividends.
In the event of our liquidation, dissolution or winding up, the holders of
common stock are entitled to share ratably in all assets, subject to prior
distribution rights of the preferred stock, if any, then outstanding. Holders of
common stock have no preemptive rights or rights to convert their common stock
into any other securities. There are no redemption or sinking fund provisions
applicable to the common stock. All outstanding shares of common stock are fully
paid and non-assessable, and the shares of common stock to be issued in the
offering will be fully paid and non-assessable.
Preferred Stock
Our board of directors has the authority, within the limitations and
restrictions stated in our restated certificate of incorporation, to provide by
resolution for the issuance of shares of preferred stock, and to fix the rights,
preferences, privileges and restrictions thereof, including dividend rights,
conversion rights, voting rights, terms of redemption, liquidation preference
and the number of shares constituting any series of the designation of such
series. The issuance of preferred stock could have the effect of decreasing the
market price of the common stock, impeding or delaying a possible takeover and
adversely affecting the voting and other rights of the holders of our common
stock. At present, we have no plans to issue preferred stock.
Stock Options
As of April 15, 2001:
o options to purchase a total of 2,724,425 shares of common stock
were outstanding, 1,151,913 of which were vested and exercisable
within 60 days, at a weighted average exercise price of $3.82 per
share; and
o up to 3,523,907 additional shares of common stock may be issued
under our 1993 Stock Option and Restricted Stock Purchase Plan and
our Non-Employee Director Stock Option Plan.
Warrants
As of April 15, 2001, there were outstanding warrants to purchase a
total of 1,678,786 shares of common stock at a weighted average exercise price
of $9.96 per share.
Certain Charter Provisions
Provisions of our restated certificate of incorporation may have the
effect of making it more difficult for a third party to acquire, or of
discouraging a third party from attempting to acquire, control of us. These
provisions could limit the price that certain investors might be willing to pay
in the future for shares of our common stock. These provisions:
o divide our board of directors into three classes serving staggered
three-year terms;
o only permit removal of directors by stockholders "for cause," and
require the affirmative vote of at least 85% of the outstanding
common stock to so remove; and
13
o allow us to issue preferred stock without any vote or further
action by the stockholders.
The classification system of electing directors and the removal
provision may tend to discourage a third-party from making a tender offer or
otherwise attempting to obtain control of us and may maintain the incumbency of
our board of directors, as the classification of the board of directors
increases the difficulty of replacing a majority of the directors. These
provisions may have the effect of deferring hostile takeovers, delaying changes
in our control or management, or may make it more difficult for stockholders to
take certain corporate actions. The amendment of any of these provisions would
require approval by holders of at least 85% of the outstanding common stock.
DESCRIPTION OF COMMON STOCK WARRANTS
We may issue, together with common stock or separately, warrants for
the purchase of our common stock. The terms of each warrant will be discussed in
the applicable prospectus supplement relating to the particular series of
warrants. The form(s) of certificate representing the warrants, will be, in each
case, filed with the Commission as an exhibit to a document incorporated by
reference in the registration statement of which this prospectus is a part on or
prior to the date of any prospectus supplement relating to an offering of the
particular warrant.
The prospectus supplement relating to any series of warrants that are
offered by this prospectus will describe, among other things, the following
terms to the extent they are applicable to that series of warrants:
o the procedures and conditions relating to the exercise of the
warrants;
o the number of shares of our common stock, if any, issued with the
warrants;
o the date, if any, on and after which the warrants and any related
shares of our common stock will be separately transferable;
o the offering price of the warrants, if any;
o the number of shares of our common stock which may be purchased
upon exercise of the warrants and the price or prices at which the
shares may be purchased upon exercise;
o the date on which the right to exercise the warrants will begin
and the date on which the right will expire;
o a discussion of the material United States federal income tax
considerations applicable to the exercise of the warrants;
o call provisions of the warrants, if any; and
o any other material terms of the warrants.
Each warrant may entitle the holder to purchase for cash, or, in
limited circumstances, by effecting a cashless exercise for, the number of
shares of our common stock at the exercise price that is described in the
applicable prospectus supplement. Warrants will be exercisable during the period
of time described in the applicable prospectus supplement. After that period,
unexercised warrants will be void. Warrants may be exercised in the manner
described in the applicable prospectus supplement.
A holder of a warrant will not have any of the rights of a holder of
our common stock before the common stock is purchased upon exercise of the
warrant. Therefore, before a warrant is exercised, the holder of the warrant
will not be entitled to receive any dividend payments or exercise any voting or
other rights associated with shares of our common stock which may be purchased
when the warrant is exercised.
14
LEGAL MATTERS
Harris Beach LLP, Rochester, New York will pass upon the validity of
the Securities offered by this prospectus for us.
EXPERTS
Our consolidated financial statements for the fiscal years ended
December 31, 2000 and 1999, which have been incorporated by reference in this
prospectus, have been audited by independent accountants Kost Forer & Gabbay (a
member firm of Ernst & Young International Limited). Our consolidated financial
statements for the fiscal year ended December 31, 1998, which have also been
incorporated by reference in this prospectus, were audited by our former
independent accountants, Kesselman & Kesselman (a member firm of
PricewaterhouseCoopers International). Such financial statements have been so
included in reliance on the reports of such independent accountants given on the
authority of such firms as experts in accounting and auditing.
15
================================================================================
$20,000,000
Electric Fuel/R/
Common Stock
Common Stock Warrants
------------------------------
PROSPECTUS
------------------------------
, 2001
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable by
Electric Fuel in connection with the sale of common stock and warrants being
registered. All amounts are estimates except the SEC registration fee.
SEC Registration Fee .................. $ 426.17*
Legal Fees and Expenses ............... 10,000.00
Accounting Fees and Expenses .......... 1,000.00
Blue Sky Fees and Expenses ............ 2,500.00
Miscellaneous ......................... 1,500.00
----------
Total: ................................ $15,426.17
==========
- ---------------------------
* Registration fees in the aggregate amount of $4,573.83 relating to shares
of common stock and warrants were previously paid. The $426.17 registration
fee is the difference between the registration fees previously paid and the
registration fee for securities being registered by this registration
statement.
Item 15. Indemnification of Directors and Officers
Electric Fuel Corporation is a Delaware corporation. Section 102(b)(7)
of the Delaware General Corporation Law (the "DGCL") enables a corporation in
its original certificate of incorporation or an amendment thereto to eliminate
or limit the personal liability of a director to the corporation or its
stockholders for monetary damages for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit. The Company's Amended and Restated Certificate of Incorporation
("Certificate of Incorporation") and By-Laws contain provisions eliminating the
liability of directors to the extent permitted by the DGCL.
Section 145 of the DGCL provides that a corporation may 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 or investigative (other than an action by or in the right of the
corporation) 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, had no reasonable cause to believe his
conduct was unlawful. Section 145 further provides that a corporation similarly
may indemnify any such person serving in any such capacity who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure judgment in its
favor, against expenses actually and reasonably incurred in connection with the
defense or settlement of such action or suit 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 except that no indemnification shall 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 such other court in which such action or suit was 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.
Article 10 of the Company's Certificate of Incorporation provides that,
to the fullest extent permitted by the DGCL, the Company's directors shall not
be liable to the Company or its stockholders for monetary damages for any breach
of fiduciary duty as a director.
II-1
Article 11 of the Company's Certificate of Incorporation provides that
the Company shall, to the maximum extent permitted under the DGCL, indemnify any
person who was or is made a party or is threatened to be made a party to any
threatened, pending or completed action, suit, proceeding or claim, whether
civil, criminal, administrative or investigative, by reason of the fact that
such person is or was or has agreed to be a director or officer of the Company
or while a director or officer is or was serving at the request of the Company
as a director, officer, partner, trustee, employee, or agent of any corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, against expenses (including attorney's fees),
judgments, fines, penalties and amounts paid in settlement incurred in
connection with the investigation, preparation to defend or defense of such
action, suit, proceeding or claim.
The Company also maintains directors' and officers' insurance.
For the undertaking with respect to indemnification, see Item 17
herein.
Item 16. Exhibits
Exhibit
Number Description
- ------- -----------
*1.1 Form of Underwriting Agreement
/1/3.1 Registrant's Amended and Restated Certificate of Incorporation
/2/3.1.1 Amendment to Registrant's Amended and Restated Certificate of
Incorporation
/3/3.2 Amended and Restated By-Laws
/3/4.1 Specimen Certificates for shares of the Registrant's Common Stock,
$.01 par value
*4.2 Form of Common Stock Warrant
+5.1 Legal Opinion of Harris Beach LLP
++23.1 Consent of Kesselman & Kesselman
++23.2 Consent of Kost Forer & Gabbay
+23.3 Consent of Harris Beach LLP (contained in the opinion filed as
Exhibit 5.1)
++24.1 Power of Attorney (included as part of the signature page filed
herewith)
- ----------------------------
* To be filed by a report on Form 8-K pursuant to Item 601 of Regulation S-K
+ Filed herewith
++ Previously filed
/1/ Incorporated by reference to our Annual Report on Form 10-K for the year
ended December 31, 1998
/2/ Incorporated by reference to our Annual Report on
Form 10-K for the year ended December 31, 2000
/3/ Incorporated by reference to our Registration Statement on Form S-1
(Registration No. 33-73256), which became effective on February 23, 1994
Item 17. 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:
(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;
(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;
II-2
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above shall not
apply if 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 Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under 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.
(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 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
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions set forth in Item 15 above, 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.
II-3
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-3 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 this 30th day of
April, 2001.
ELECTRIC FUEL CORPORATION
By: /s/ Robert S. Ehrlich
------------------------------------------------
Name: Robert S. Ehrlich
Title: Chairman and Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Yehuda Harats* President, Chief Executive
------------------------------------- Officer and Director
Yehuda Harats (Principal Executive Officer) April 30 , 2001
------
/s/ Robert S. Ehrlich Chairman, Chief Financial April 30 , 2001
-------------------------------------- Officer and Director ------
Robert S. Ehrlich (Principal Financial Officer)
/s/ Avihai Shen* Vice President - Finance April 30 , 2001
------------------------------------- (Principal Accounting Officer) ------
Avihai Shen
/s/ Jay M. Eastman* Director April 30 , 2001
------------------------------------- ------
Dr. Jay M. Eastman
Director April , 2001
------------------------------------- ------
Leon S. Gross
/s/ Lawrence M. Miller* Director April 30 , 2001
--------------------------------------- ------
Lawrence M. Miller
/s/ Jack E. Rosenfeld* Director April 30 , 2001
-------------------------------------- ------
Jack E. Rosenfeld
/s/ Jeff Kahn*
-------------------------------------
Jeff Kahn Director April 30 , 2001
------
* /s/ Robert S. Ehrlich April 30 , 2001
------------------------------------- ------
Robert S. Ehrlich
Attorney-in-Fact
II-4
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
*1.1 Form of Underwriting Agreement
/1/3.1 Registrant's Amended and Restated Certificate of Incorporation
/2/3.1.1 Amendment to Registrant's Amended and Restated Certificate of
Incorporation
/3/3.2 Amended and Restated By-Laws
/3/4.1 Specimen Certificates for shares of the Registrant's Common Stock,
$.01 par value
*4.2 Form of Common Stock Warrant
+5.1 Legal Opinion of Harris Beach LLP
++23.1 Consent of Kesselman & Kesselman
++23.2 Consent of Kost Forer & Gabbay
+23.3 Consent of Harris Beach LLP (contained in the opinion filed as
Exhibit 5.1)
++24.1 Power of Attorney (included as part of the signature
page filed herewith)
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* To be filed by a report on Form 8-K pursuant to Item 601 of Regulation S-K
+ Filed herewith
++ Previously filed
/1/ Incorporated by reference to our Annual Report on Form 10-K for the year
ended December 31, 1998
/2/ Incorporated by reference to our Annual Report on Form 10-K for the year
ended December 31, 2000
/3/ Incorporated by reference to our Registration Statement on Form S-1
(Registration No. 33-73256), which became effective on February 23, 1994