<PAGE>
As filed with the Securities and Exchange Commission on February 10, 2000.
Registration No. 333-95361
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2 to
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ELECTRIC FUEL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 95-4302784
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
885 Third Avenue, Suite 2900
New York, New York, 10022-4834
(2 12) 829-5536
(Address, including zip code, and telephone
number, including area code, of registrant's
principal executive offices)
Winthrop G. Minot, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Tel: (617) 951-7000
Fax: (617) 951-7050
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------
Please send copies of all communications
to:
Jane D. Goldstein, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Tel: (617) 951-7000
Fax: (617) 951-7050
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of the Registration Statement. If any of the
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, other than securities offered only in connection with dividend or interest
reinvestment plans, 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 filed 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. [ ]
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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<PAGE>
The information in this preliminary prospectus is not complete and may be
changed. These securities may not be sold 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 we are not seeking
offers to buy these securities in any state where the offer or sale is not
permitted.
Subject to Completion, dated February 10, 2000
---------------------------
3,235,000 Shares
Electric Fuel Corporation
Common Stock
---------------------------
This prospectus relates to the offer and sale of up to 3,235,000 shares of
common stock from time to time by certain of our stockholders listed below.
The common stock is listed on the Nasdaq National Market under the symbol
"EFCX". The last reported sale price for the common stock on February 8, 2000 as
quoted on the Nasdaq National Market was $9.50 per share.
Investing in the common stock involves a high degree of risk. Consider
carefully the "Risk Factors" beginning on page 1.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
---------------------------
The date of this prospectus is , 2000
<PAGE>
TABLE OF CONTENTS
Risk Factors........................................................... 1
The Company............................................................ 5
Recent Developments.................................................... 6
Use of Proceeds........................................................ 7
Selling Stockholders................................................... 7
Plan of Distribution................................................... 8
Legal Matters.......................................................... 8
Experts................................................................ 9
Where You Can Find More Information.................................... 8
Incorporation of Documents by Reference................................ 9
Information Regarding Forward-Looking Statements....................... 10
<PAGE>
RISK FACTORS
You should consider carefully the following risk factors in addition to the
other information in this prospectus before purchasing our common stock.
Investing in our common stock 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 10 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 licensing arrangements; research
contracts and supply contracts; funds received under research and development
grants from the Government of Israel; sales of Survivor Lights; and 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 and January 2000. We incurred significant operating losses for the
years ended December 31, 1996, 1997 and 1998 and the three quarters ended
September 30, 1999, expect that we incurred significant operating losses in the
fourth quarter of 1999 and expect to continue to incur significant operating
losses in 2000. These losses may increase as we expand 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.
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 expect our currently available
funds to be sufficient to fund our projected activities into the foreseeable
future. 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 the fourth quarter of 1999, we began small scale commercial deliveries
of our cell phone battery products. However, our battery for cell phones has not
yet been accepted by the consumer products market for this application.
Furthermore, while we have developed batteries for several models of Nokia,
Motorola and Ericsson cell phones, we do not have batteries for all models. We
cannot assure you that the Electric Fuel cell phone battery will be competitive
either in terms of price or performance or that we will be able to sell our cell
phone batteries in commercial quantities.
Other than our cell phone battery 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 to commercial levels in 2000, significant resources will be
required to develop our capacity to produce cell phone batteries on a commercial
scale. Additional development may 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.
1
<PAGE>
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.
We will need to develop the capacity and experience to manufacture our products
in commercial quantities and at competitive prices.
We currently have limited capacity for, or experience in, manufacturing in
commercial quantities and have, to date, produced only limited quantities of
components of the batteries for electric vehicles and limited amounts of
consumer batteries. 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 our financial and engineering resources. 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:
. Announcements by us, our competitors or our customers;
. Announcements of the introduction of new or enhanced products and
services by us or our competitors;
. Rumors relating to our competitors or us;
. Actual or anticipated fluctuations in our operating results; and
. 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 lithiom, rechargeable alkaline and zinc-air. Additionally, some
manufacturers of primary alkaline batteries offer alkaline battery packs for
cell phone users.
2
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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 which 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.
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 1993 Israeli Dangerous Substances Law 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 which 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 that 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.
3
<PAGE>
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.
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 2000. 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 January 20, 2000, our directors, executive officers and principal
stockholders and their affiliates collectively owned approximately 48% of the
outstanding shares of 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 EFC and EFL 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 EFC and EFL have not had any material undistributed
PHC income. However, no assurance can be given that EFC and EFL will not have
undistributed PHC income in the future.
Approximately 42.3% of the stock of EFL was owned (directly or
indirectly by application of certain attribution rules) as of January 20, 2000
by five United States citizens. If 50% of the shares of the Company is ever
acquired or deemed to be acquired by five or fewer individuals (including, if
applicable, those individuals who currently own an aggregate of 42.3% of the
Company) who are United States citizens or residents, EFL would satisfy the
foreign personal holding company ("FPHC") stock ownership test under the
Internal Revenue Code, and the Company could be subject to additional U.S. taxes
(including PHC tax) on any "undistributed FPHC income" of EFL. We believe that
EFL has not had any material undistributed FPHC income. However, no assurance
can be given that EFL 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
4
<PAGE>
1994, the states comprising the Gulf Cooperation Council (Saudi Arabia, 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 and the Palestine Liberation
Organization, 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 which received 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.
THE COMPANY
We design and develop our proprietary zinc-air technology for a number of
electronic products that have a high demand for energy and power from batteries.
We design and develop applications for our zinc-air technology principally for
portable consumer electronic devices, as well as electric vehicles and defense
and safety applications. To date, we have developed and brought to market
batteries for use in several different models of cell phones and certain defense
and safety applications. We are also participating in a U.S. federally-funded
program in Nevada to demonstrate the ability of our Electric Fuel battery system
to power buses.
Our technology has grown out of an intensive eight-year research and
development program in zinc-air technologies. Through these efforts, we have
sought to position ourselves as a leader in the application of zinc-air
technology to innovative, primary and refuelable battery systems.
Our high-energy, high-power zinc-air battery is composed of a zinc-anode
and an air (oxygen reduction) cathode. During discharge, oxygen from the air is
electrochemically reduced to hydroxide ions at the cathode, and zinc at the
anode is consumed by conversion to zinc oxide. While zinc-air technology has
been in use for over a century, we have developed unique technology that
provides our batteries with enhanced performance in both power and energy at a
low manufacturing cost.
To fully utilize our zinc-air battery technology for a wide selection of
applications, since 1998, we have operated our business in three segments:
Consumer Batteries, Electric Vehicles, and Defense and Safety Products.
5
<PAGE>
The Consumer Batteries division focuses on the primary, single use battery
as a substitute for the current lower performance, more expensive, rechargeable
batteries in consumer products. Our first product was a cell phone battery,
which became available for sale to consumers in the fourth quarter of 1999.
Based on our testing, our zinc-air electric fuel cell phone batteries provide
significantly more talk and standby time than conventional rechargable
batteries. Our batteries are ready to use on purchase without charging. We offer
our batteries for many models of Nokia, Ericsson and Motorola cell phones. We
are also seeking to develop batteries, employing our zinc-air technology, for
other portable consumer electronic devices. We are establishing and enlarging
our sales and marketing in this area.
The Electric Vehicle division is continuing to focus on fleet applications
of the zinc-air battery system with our partners in Europe and the United
States. In May 1998, we successfully completed a field test managed by the
German postal service of vehicles powered by our Electric Fuel battery. In a
program funded by the U.S. Department of Transportation, we are also developing
an all-electric transit bus in Las Vegas, Nevada. This bus will utilize an
all-electric battery/battery hybrid we are jointly developing with funding from
the Israeli-U.S. Bi-National Industrial Research and Development Foundation.
The Defense and Safety Products division focuses on the sale of our
water-activated, battery-powered survivor locator light products for the airline
and marine markets.
Our R&D and production activities are primarily carried out by our Israeli
subsidiary at its facility in Beit Shemesh, Israel. We also have a battery
research and development facility in Auburn, Alabama, near Auburn University.
This facility builds and tests prototype cells and batteries.
We were incorporated in Delaware in 1990. Unless the context requires
otherwise, all references to "us," "we," "our" and "Electric Fuel" refer
collectively to Electric Fuel Corporation; our wholly-owned subsidiary Electric
Fuel (E.F.L.) Limited, incorporated under the laws of Israel; Electric Fuel
GmbH, a German wholly-owned subsidiary of Electric Fuel (E.F.L.) Limited; and
other direct and indirect subsidiaries of ours. Our executive offices are
located at 885 Third Avenue, New York, New York 10022, and our telephone number
is (212) 829-5536. We maintain a website at www.electric-fuel.com. This
---------------------
reference to our website address does not constitute incorporation by reference
of the information contained on our website.
RECENT DEVELOPMENTS
On December 20, 1999, we announced that Telofonica de Argentina ordered
25,000 ZincAir disposable batteries for Nokia cell phones. Telofonica de
Argentina is a leading private Argentinian telecommunications operator. We
delivered these batteries in January 2000.
On December 28, 1999, we announced that pursuant to a Securities Purchase
Agreement, dated December 28, 1999, which we entered into with a group of
private investors, including Mr. Leon S. Gross, a director of Electric Fuel and
one of our existing shareholders, we issued 1,425,000 shares of common stock to
the investors at a price of $2.00 per share, for a total purchase price of
$2,850,000. We also issued warrants to purchase an additional 1,425,000 shares
of our common stock to the investors. Of these, warrants to purchase 950,000
shares of common stock have an exercise price of $1.25 per share and are
exercisable for a period of six months, and warrants to purchase 475,000 shares
have an exercise price of $4.50 per share and are exercisable for a period of
one year. The shares sold in this private placement, and the shares issuable
upon exercise of the warrants, are being registered for resale pursuant to the
Registration Statement of which this prospectus is a part.
On January 5, 2000, we entered into a Common Stock Purchase Agreement with
a separate group of private investors. Pursuant to this agreement, on January
10, 2000 we issued 385,000 shares of common stock to the investors at a price of
$2.50 per share, for a total purchase price of $962,000. The shares sold in this
private placement are being registered for resale pursuant to the Registration
Statement of which this prospectus is a part.
On January 18, 2000, we announced that we have agreed to participate in a
cooperative all-electric hybrid vehicle development and demonstration program in
Germany. The program will be implemented by a consortium comprising German
industrial firms such as Daimler Chrysler AG and Varta Batterie AG. During the
course of the four-year program, the German firms and academic institutions will
develop and demonstrate a hybrid vehicle design based on Daimler Chrysler cargo
vans. The vans will be powered by our refuelable zinc-air batteries as the main
energy storage, together with high-power booster batteries provided by Varta and
ultracapacitors under development by Dornier GmbH (a division of Daimler
Chrysler Aerospace) and by EPOC AG (formerly Siemens Matsushita Components).
6
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On January 24, 2000, we announced that we have opened a U.S. Sales and
Marketing Headquarters office in Woodbridge, New Jersey, from which we will
focus our sales of disposable zinc-air batteries for cell phones in North
America. We also announced that we have named Mitchell L. Horwitz Vice President
of North American Sales and Marketing. Mr. Horwitz will be responsible for cell
phone battery sales in the U.S., Canada and Mexico.
USE OF PROCEEDS
All net proceeds from the sale of the shares of common stock offered
hereunder will go to the stockholders who offer and sell them. We will not
receive any of the proceeds from this offering.
SELLING STOCKHOLDERS
The following table sets forth information known to us about the beneficial
ownership of each selling stockholder as of January 15, 2000, as to: (a) the
number of shares of common stock that are beneficially held by each selling
stockholder (giving effect to conversion of all warrants purchased in the
December 1999 offering) prior to the offering; (b) the maximum number of shares
that may be offered by each selling shareholder in this prospectus; and (c) the
number of shares of common stock that will be held by each selling shareholder
if he or she sells all of the shares that can be sold under this prospectus.
Other than Mr. Gross, no selling shareholder will hold over 1% of our
outstanding shares of common stock after this offering (assuming each
shareholder sells all of the shares that can be sold under this prospectus).
We can provide no assurance as to the number of shares that will be held by
each of the selling stockholders after this offering because each of the selling
stockholders may offer all or some part of the shares which he or she holds
pursuant to the offering contemplated by this prospectus, and because this
offering is not underwritten on a firm commitment basis.
<TABLE>
<CAPTION>
Shares beneficially
Shares beneficially owned Shares being owned
Selling Stockholder prior to this offering offered hereby After this offering
- ------------------- ---------------------- -------------- -------------------
<S> <C> <C> <C>
Gal Erez 480,000 480,000 0
Gadi Regev 180,000 180,000 0
Federman Holdings 300,000 300,000 0
Apax Mutavim 300,000 300,000 0
Leader Holdings and
Investments Ltd. 180,000 180,000 0
Suny Electronics Ltd. 180,000 180,000 0
Yosef Strogo 90,000 90,000 0
Dvir Katchman 90,000 90,000 0
Joe Nahumi 90,000 90,000 0
Dalia Pkornik 60,000 60,000 0
Shlomo Shefi 30,000 30,000 0
Shuki Hershkovitch 30,000 30,000 0
Uri Akerman 30,000 30,000 0
Moshe Nehoray 30,000 30,000 0
Volter Rozental 30,000 30,000 0
Leon Gross1 4,276,004 750,000 3,526,004
J.M. Holdings Limited 20,000 20,000 0
Keren Zaav Mutual 45,000 45,000 0
Fund Management
Company Ltd.
Menahem Raphael 57,500 57,500 0
Maatag Investments 100,000 100,000 0
</TABLE>
7
<PAGE>
<TABLE>
<S> <C> <C> <C>
Ltd.
David Dafni 47,500 47,500 0
Nisim Ben Asuli 15,000 15,000 0
Even Ari 45,000 45,000 0
Merlion Underwriters 35,000 35,000 0
Ltd.
Avraham Namdar 20,000 20,000 0
</TABLE>
- --------------------------------------------------------------------------------
1 Mr. Gross has been a member of our Board of Directors since March 1997.
Pursuant to a Voting Rights Agreement entered into in September 1996 with
Electric Fuel Corporation and Robert Ehrlich and Yehuda Harats, our Chairman and
President, respectively, Mr. Gross has the right to appoint one director to our
Board of Directors in addition to his right to serve on the Board of Directors.
Mr. Gross purchased 375,000 shares of common stock in our December 1999 private
placement, along with warrants to purchase an additional 375,000 shares. If
these warrants are exercised in full, resulting in an issuance of 375,000
shares, and if those shares are sold by Mr. Gross together with the 375,000
shares Mr. Gross purchased directly from us, Mr. Gross's holdings will total
3,526,004 shares, comprising 22% of our outstanding common stock (excluding from
our outstanding common stock the shares issuable under the warrants sold to the
other investors in the December 1999 transaction).
PLAN OF DISTRIBUTION
The shares offered for sale hereby may be sold from time to time by the
selling stockholders in one or more transactions on the Nasdaq National Market,
in the over-the-counter market, in negotiated transactions or in a combination
of these methods. These shares may be sold at fixed prices, at market prices
prevailing at the time of sale, at prices relating to prevailing market prices
or at negotiated prices. The selling stockholders may make sales directly to
purchasers or to or through broker-dealers which may act as agents or
principals. Broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from the selling stockholders. This
compensation, as to a particular broker-dealer, may be more or less than
customary commissions. In addition, any shares covered by this prospectus that
qualify for sale under Rule 144 of the Securities Act may be sold under Rule 144
rather than by means of this prospectus.
If necessary to comply with the securities laws of any state, the shares
will be sold only through brokers or dealers. In addition, in some states, the
shares may not be sold unless they have been registered or qualified for sale or
an exemption from registration or qualification is available and is complied
with.
Any broker-dealers who participate in a sale of the shares may be deemed to
be "underwriters" within the meaning of Sections 11 and 12 of the Securities Act
and Rule 10b-5 of the Securities Exchange Act of 1934 ("Exchange Act"), and any
commissions received by them, and proceeds of any sales by broker-dealers as
principals, may be deemed to be underwriting discounts and commissions under the
Securities Act. If any of the selling stockholders are deemed to be acting as an
underwriter, they may be subject to statutory liabilities of the Securities Act.
In addition, the selling stockholders and any other person participating in
the sale or distribution of the shares offered under this prospectus will be
subject to the Exchange Act and its rules and regulations, including, without
limitation, Rules 10b-5 and Regulation M. These provisions may limit the timing
of purchases and sales of any of the shares. In addition, any person engaged in
a distribution of the shares may not simultaneously engage in market-making
activities during the period beginning when he or she becomes a distribution
participant and ending upon his or her completion of participation in a
distribution. All of these factors may affect the marketability of the shares
and the ability of any person or entity to engage in market-making activities.
Electric Fuel has agreed to pay all expenses of the offering.
LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus will
be passed upon for us by Ropes & Gray, Boston, Massachusetts.
8
<PAGE>
EXPERTS
Kesselman & Kesselman, independent certified public accountants and a
member firm of PriceWaterhouseCoopers International, have audited our
consolidated financial statements included in our annual report on Form 10-K, as
amended, for the fiscal year ended December 31, 1998, as set forth in their
report, which is incorporated by reference in this prospectus and elsewhere in
the Registration Statement. Our financial statements are incorporated by
reference in reliance on Kesselman & Kesselman's report, given on their
authority as experts in accounting and auditing. Effective as of January 12,
2000, Kost Forer & Gabbay, a member of Ernst & Young International, have been
engaged as the Company's new principal independent accountants.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting requirements of the Exchange Act, and file
annual and quarterly reports, proxy and information statements and other
information with the Securities and Exchange Commission. These documents can be
inspected and copied at the public reference facilities maintained by the
Commission at its office at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, and at its regional offices at Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center,
Suite 1300, New York, New York 10048. Copies of these materials can be obtained
from the Public Reference section of the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition,
reports, proxy statements and other information that we electronically file with
the Commission are contained in the Commission's Internet Web site which is
http://www.sec.gov.
- ------------------
We have filed with the Commission a Registration Statement on Form S-3
relating to the common stock offered in this prospectus. This prospectus does
not contain all of the information in the Registration Statement and its
exhibits. The Registration Statement, its exhibits and the documents
incorporated by reference in this prospectus and their exhibits, all contain
information that is material to the offering of the common stock. Whenever a
reference is made in this prospectus to any of our contracts or other documents,
the reference may not be complete. You should refer to the exhibits that are a
part of the Registration Statement in order to review a copy of the contract or
documents.
INCORPORATION OF DOCUMENTS BY REFERENCE
The Commission allows us to incorporate by reference many of the documents
that we file. This permits us to disclose important information to you by
referencing these filed documents. Any information referenced in this way is
considered part of this prospectus. We are incorporating by reference in this
prospectus the following documents which we have filed with the Commission,
together with the filings that have amended them:
(a) Our Annual Report on Form 10-K for the fiscal year ended December 31,
1998;
(b) Our Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1999;
(c) Our Quarterly Report on Form 10-Q for the first fiscal quarter ended
June 30, 1999;
(d) Our Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1999;
(e) Our Current Report on Form 8-K dated January 7, 2000;
(f) Our Current Report on Form 8-K dated January 18, 2000;
(g) Our Current Report on Form 8-K dated January 24, 2000; and
(h) The description of our common stock contained in our Registration
Statement on Form 8-A filed with the Securities and Exchange
Commission on February 2, 1994.
All reports and other documents that we will file with the Commission under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus but before the termination of the offering of the common stock
hereunder will also be considered to be incorporated by reference into this
prospectus from the date of the filing of these reports and documents, and will
supersede the information herein. We undertake to provide without charge to each
person who receives a copy of this prospectus, upon written or oral request, a
copy of all of the preceding documents that are incorporated by reference (other
than exhibits, unless the exhibits are specifically incorporated by reference
into these documents). You may request a copy of these materials, at no cost, by
writing or telephoning us at the following address: Electric Fuel Corporation,
Attention: Robert S. Ehrlich, 885 Third Avenue, Suite 2900, New York, New York
10022, (212) 829-5536.
9
<PAGE>
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. Neither we or any of the selling
stockholders are 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.
10
<PAGE>
3,235,000 Shares
Electric Fuel Corporation
Common Stock
-----------------------
Prospectus
-----------------------
, 2000
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
We have agreed to bear the expenses of registering the shares for the
selling stockholders under the federal and state securities laws. The following
table sets forth the costs and expenses payable by Electric Fuel in connection
with the sale of common stock being registered. All amounts are estimates except
the SEC registration fee.
SEC registration fee.............................. $ 8,462.94
Legal fees and expenses*.......................... $ 27,000.00
Miscellaneous expenses*........................... $ 200,000.00
----------
Total*............................................ $ 235,462.94
- -----------------
* Estimated.
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 a 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
<PAGE>
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
Number Description
4.3(1) Specimen Certificates for shares of the Registrant's common
stock.
4.4+ Description of Capital Stock contained in the Registrant's
Amended and Restated Certificate of Incorporation.
4.4.1+ Amendment to Registrant's Restated Certificate of
Incorporation.
5.1+ Legal Opinion of Ropes & Gray.
10.1(2) Securities Purchase Agreement, dated December 28, 1999, by
and among Electric Fuel Corporation and the Purchasers
listed on Exhibit A thereto.
10.2(3) Common Stock Purchase Agreement, dated January 5, 2000, by
and among Electric Fuel Corporation and the Purchasers
listed on Exhibit A thereto.
23.1* Consent of Kesselman & Kesselman.
23.2+ Consent of Ropes & Gray (contained in the opinion filed as
Exhibit 5.1).
24.1+ Power of Attorney (included as part of the signature page
filed herewith).
* Filed herewith.
+ Previously filed.
(1) Incorporated by reference to Form S-1, File No. 33-73256, which became
effective on February 23, 1994.
(2) Filed as Exhibit 4a to the Company's Current Report on Form 8-K, filed
January 7, 2000, and incorporated by reference hereto.
(3) Filed as Exhibit 4a to the Company's Current Report on Form 8-K, filed
January 24, 2000, and incorporated by reference hereto.
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-2
<PAGE>
(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;
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
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on this
10th day of February, 2000.
ELECTRIC FUEL
By: /s/ Robert S. Ehrlich
-------------------------------------
Robert S. Ehrlich
Chairman of the Board of Directors and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed by the following persons on this 10th day of February, 2000 in
the capacities indicated.
Name and Signatures Title
YEHUDA HARATS*
-------------------------
Yehuda Harats President, Chief Executive Officer and Director
/s/ Robert S. Ehrlich
-------------------------
Robert S. Ehrlich Chairman and Chief Financial Officer
JAY M. EASTMAN*
-------------------------
Dr. Jay M. Eastman Director
LEON GROSS*
-------------------------
Leon S. Gross Director
LAWRENCE M. MILLER*
-------------------------
Lawrence M. Miller Director
JACK E. ROSENFELD*
-------------------------
Jack E. Rosenfeld Director
*By: /s/ Robert S. Ehrlich
-------------------------
Robert S. Ehrlich
Attorney-in-fact
II-4
<PAGE>
EXHIBIT INDEX
Exhibit Page
- ------- ----
Number Title of Exhibit Number
- ------ ---------------- ------
23.1 Consent of Kesselman & Kesselman.
<PAGE>
Exhibit 23.1
------------
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-3 of Electric Fuel Corporation of our report dated February
26, 1999 relating to the financial statements, which appear in the December 31,
1998 Annual Report on Form 10-K of Electric Fuel Corporation.
/s/ Kesselman & Kesselman
-------------------------------------
Kesselman & Kesselman
Certified Public Accountants (Israel)
Jerusalem, Israel
February 9, 2000
