Registration No. 33-_____
FORM S-8
SECURITIES AND EXCHANGE COMMISSION
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ELECTROSOURCE, INC.
(Exact name of issuer as specified in its charter)
Delaware 742466304
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3800B Drossett Drive
Austin, Texas 78744-1131
(Address of Principal Executive Offices) (Zip Code)
1994 STOCK OPTION PLAN
(Full title of plan)
Michael G. Semmens, President
Electrosource, Inc.
3800B Drossett Drive
Austin, Texas 78744-1131
(Name and address of agent for service)
(512) 445-6606
(Telephone number, including area code, of agent for service)
Copy to:
Bret Van Earp
Attorney at Law
100 Congress Avenue
Suite 1800
Austin, Texas 78701
Calculation of Registration Fee
Proposed Proposed
maximum maximum
Title of Amount to offering aggregate Amount of
securities to be price per offering registrati
be registered registered share price (1) on fee
Common Stock,
$.10 par 1,500,000 $1.875 $2,812,500 $969.83
value per shares
share
(1) Estimated solely for the purpose of determining the
registration fee and based upon the closing price quoted by NASDAQ
for a share of Electrosource, Inc. Common Stock on October 9, 1995.
An Exhibit Index is found on page 7.
Page 1 of 9 pages.
This registration statement relates to 1,500,000 shares of
Electrosource, Inc. Common Stock, $.10 par value per share ("Common
Stock") reserved for issuance upon exercise of options that have
been granted but not exercised or that may be granted pursuant to
the 1994 Stock Option Plan (the "Plan") of Electrosource, Inc. (the
"Company").
Incorporation of Documents by Reference
The following documents are hereby specifically incorporated by
reference into this registration statement:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994;
(2) All other reports filed by the Company pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 since
December 31, 1994;
(3) The description of the Company's Common Stock set forth
under the captions "Description of Electrosource, Inc. Common Stock"
and "Purposes and Effects of Certain Provisions of the
Electrosource, Inc. Certificate and the Electrosource, Inc. Bylaws"
in the Information Statement filed as Exhibit 28.1 to the Company's
Registration Statement on Form 10 filed October 19, 1987 (as amended
by Form 8 Amendments filed January 8, 1988 and January 13, 1988),
which description of the Company's Common Stock was incorporated by
reference into the Registration Statement on Form 10 in response to
Item 11, "Description of Registrant's Securities to be Registered,"
together with any subsequent amendment or report filed for the
purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to December 31,
1994, and prior to the filing of a post-effective amendment to this
registration statement indicating that all securities offered have
been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference into this
registration statement and to be part thereof from the date of
filing of such documents.
Description of Securities
Not applicable
Legal Matters
The validity of the Company Common Stock offered hereby will be
passed upon for the Company by Bret Van Earp, Attorney at Law, 100
Congress Avenue, Suite 1800, Austin, Texas 78701.
Experts
The financial statements of the Company appearing in the Company's
Current Report on Form 8-K dated October 10, 1995, have
been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon (which contained an explanatory paragraph
with respect to the Company's ability to continue as a going concern as
discussed in Note R to the financial statements) included therein
and incorporated herein by reference. Such financial statements
are, and audited financial statements to be included in subsequently
filed documents will be, incorporated herein in reliance upon the
reports of Ernst & Young LLP pertaining to such financial statements
(to the extent covered by consents filed with the Securities
and Exchange Commission) given upon the authority of such firm as
experts in accounting and auditing.
Interests of Named Experts and Counsel
Not Applicable
Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation provides that
a director of the Company will not be personally liable to the
Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except that such provisions will not
eliminate or limit the liability of a director (i) for a breach of
the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) with
respect to unlawful payments of dividends or unlawful stock
purchases or redemptions for which the director is liable under
Section 174 of the General Corporation Law of the State of Delaware,
or (iv) for any transaction from which the director derives an
improper personal benefit.
The Company's Bylaws provide that, to the extent permitted by law,
the Company will indemnify each of its directors, and authorize the
purchase of insurance with respect thereto. The Bylaws also provide
that the Company may indemnify its officers, employees or agents who
are made or threatened to be made defendants or respondents to any
threatened, pending or completed action, suit or proceeding due to
such person's service to the Company or to certain other entities at
the request of the Company, so long as such person acted in good
faith and in a manner he reasonably believed to be not opposed to
the best interests of the Company. Such indemnification may be made
only upon a determination that such indemnification is proper in the
circumstances because the person to be indemnified has met the
applicable standard of conduct to permit indemnification under the
law.
In addition to indemnification provided pursuant to the Company's
Restated Certificate of Incorporation and Bylaws, the Company has
entered into a Director Indemnification Agreement with each director
of the Company providing for, among other things, (i)
indemnification by the Company of each director to the full extent
authorized or permitted by Delaware statutes; (ii) maintenance by
the Company of director and officer insurance coverage for the
benefit of each director of up to $2,000,000, subject to
availability at premiums not substantially disproportionate to the
amount of coverage; (iii) indemnification by the Company of each
director in connection with settlements under certain circumstances;
(iv) procedures relating to independent review of determinations
regarding director indemnification (including special provisions in
case of a change in control of the Company); and (v) the advancement
of expenses to directors in connection with matters for which the
director is entitled to indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, or
otherwise, the Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding)
is asserted against the Company by such director, officer or
controlling person in connection with the securities being
registered, the Company 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.
Exemption from Registration Claimed
Not applicable
Exhibits
The following exhibits are filed with or incorporated by reference
into this registration statement:
Exhibit
4.1 Articles Four, Seven, and Eight of the
Restated Certificate of Incorporation of
Electrosource, Inc. (filed as Exhibit 3.1 to
registrant's Registration Statement on Form 10
filed October 19, 1987 as amended by Form 8
Amendments filed January 8, 1988 and January
13, 1988 and incorporated herein by reference)
4.2 1994 Stock Option Plan of Electrosource, Inc.
(filed as Exhibit 10.4 to Electrosource, Inc.
Quarterly Report on Form 10-Q filed August 14,
1995, and incorporated herein by reference)
5 Opinion of Bret Van Earp, Attorney at Law.
24.1 Consent of Ernst & Young LLP to incorporation by reference
of report of financial statements.
24.2 Consent of Bret Van Earp (included as part of
Exhibit 5)
Undertakings
The undersigned registrant hereby undertakes:
(a) 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 of 1933;
(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, reflect
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.
Provided, that paragraphs (a)(i) and (a)(ii) 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 Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(b) That, for purposes of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to section 13(a)
of section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or
Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3
of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim
financial information.
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 Austin, State
of Texas, on October 12, 1995.
ELECTROSOURCE, INC.
(Registrant)
By: /s/ Michael G. Semmens
Michael G. Semmens, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the date indicated.
Signature Title Date
/s/ Michael G. Semmens President and Chairman October 11, 1995
Michael G. Semmens of the Board of Directors
(Principal Executive Officer)
/s/ Charles L. Mathews Director October 11, 1995
Charles L. Mathews
/s/ Richard S. Williamson Director October 11, 1995
Richard S. Williamson
/s/ Todd Templeton Director October 11, 1995
Todd Templeton
/s/ Norman Hackerman Director October 11, 1995
Norman Hackerman
/s/ John Malone Director October 11, 1995
John Malone
Director October __, 1995
Thomas S. Wilson
/s/ John Akin Director October 11, 1995
John Akin
Director October __, 1995
Nathan Morton
Director October __, 1995
William R. Graham
/s/ Frank Butler Director October 11, 1995
Frank Butler
/s/ Michael Rosen Vice President, October 11, 1995
Michael Rosen Treasurer and Chief
Financial Officer
(Principal
Accounting and
Financial Officer)
EXHIBIT INDEX
Exhibit Sequentially
Numbered Page
4.1 Articles Four, Seven, and Eight of the
Restated Certificate of Incorporation of
Electrosource, Inc. (filed as Exhibit 3.1
to registrant's Registration Statement on
Form 10 filed October 19, 1987 as amended
by Form 8 Amendments filed January 8,
1988 and January 13, 1988 and
incorporated herein by reference)
4.2 1994 Stock Option Plan of Electrosource,
Inc. (filed as Exhibit 10.4 to
Electrosource, Inc. Quarterly Report on
Form 10-Q filed August 14, 1995, and
incorporated herein by reference)
5 Opinion re legality 8
24.1 Consent of Ernst & Young LLP 9
24.2 Consent of Bret Van Earp (included as
part of Exhibit 5)
October 4, 1995
Electrosource, Inc.
3800B Drossett Drive
Austin, Texas 78744
Re: Issuance of shares pursuant to 1994 Stock Option Plan
Gentlemen:
Reference is made to the registration statement on Form S-8 (the
"Registration Statement") filed with the Securities and Exchange
Commission by Electrosource, Inc. (the "Company") under the
Securities Act of 1933 relating to 1,500,000 shares of the Common
Stock, $.10 par value, ("Common Stock"), of the Company issuable
on the exercise of stock options granted pursuant to the 1994
Stock Option Plan of Electrosource, Inc. (the "Plan").
The opinions expressed herein are limited in all respects to the
substantive law of the State of Texas, the federal law of the
United States, and, to the extent applicable, the Delaware
General Corporation Law. We assume no responsibility as to the
application to or effect on the opinions expressed herein of the
laws of any other jurisdiction.
We have been furnished with and examined originals or copies,
certified or otherwise identified to our satisfaction, of all
such records of the Company, agreements and other instruments,
certificates of officers or representatives of the Company,
certificates of public officials, and other documents as we have
deemed necessary or desirable as a basis for the opinions
hereinafter expressed. As to questions of fact material to such
opinions, we have relied upon certificates of officers of the
Company where relevant facts were not independently verified or
established.
Based upon the foregoing, and subject in all respects to the
qualifications and limitations set forth herein, we are of the
opinion that the Common Stock will be, when issued upon exercise
of stock options in accordance with the terms of the Plan,
validly issued, fully paid, and non-assessable.
The foregoing opinion is premised upon representations made by
the Company to the effect that (i) the Company will at all times
maintain reserved and available sufficient authorized but
unissued shares to meet its obligations under the Plan, (ii) the
Common Stock issued upon exercise of stock options under the Plan
will be evidenced by appropriate certificates that have been
properly executed and delivered, and (iii) no option will be
granted under the Plan at an exercise price less than the par
value of the shares covered by such option.
The opinions expressed herein are rendered as of the date of
this opinion letter, and we expressly disclaim any obligation to
advise you of any changes or new developments occurring after the
date hereof that would or might affect any matters or opinions
set forth herein. This opinion letter is limited to the matters
stated herein, and no opinion is implied or may be inferred
beyond the matters expressly stated.
I consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name in the section
of the Registration Statement captioned "Legal Matters."
Very Truly Yours,
/s/ Bret Van Earp
Bret Van Earp
Consent of Ernst & Young, LLP
Independent Auditors
We consent to the reference to our firm under the
caption "Experts" in the Registration Statement (Form S-
8 No. 33-_______________) pertaining to the 1994 Stock
Option Plan of Electrosource, Inc. and to the
incorporation by reference therein of our report dated
February 13, 1995, except for Note Q, as to which the
date is March 10, 1995, and Note R, as to which
the date is October 6, 1995, with respect to the
financial statements and schedule of Electrosource,
Inc. included in its Current Report on Form 8-K dated
October 12, 1995, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Austin, Texas
October 11, 1995
