<TABLE>
<CAPTION>
<S> <C>
As Filed with the Securities and Exchange Commission on January 28, 2000
Registration No. 333-______
====================================================================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
--------------
FORM S-8 / S-3
REGISTRATION STATEMENT
(including registration of shares for resale by means of a Form S-3 Prospectus)
Under
The Securities Act of 1933
--------------
U.S. ELECTRICAR, INC.
(Exact name of registrant as specified in its charter)
California 95-3056150
(State Incorporation) (I.R.S. Employer Identification No.)
19850 South Magellan Drive
Torrance, California 90502
(Address of principal executive offices)
1996 STOCK OPTION PLAN
SHARES ISSUED AS COMPENSATION
CARL D. PERRY
Chief Executive Officer
U. S. ELECTRICAR, INC.
19850 South Magellan Drive
Torrance, California 90502
(Name and address of agent for service)
(310) 527-2800
(Telephone number, including area code, of agent for service) Copy to:
Donald C. Reinke, Esq.
Bay Venture Counsel, LLP
1999 Harrison Street, Suite 1300
Oakland, California 94612
510-273-8750
-----------------------
</TABLE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Per Aggregate Offering Amount of
Securities to be Registered Registered Share Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value per share:
subject to outstanding options under
the 1996 Stock Option Plan; 40,331,818 $ 0.21(1) $ 8,469,682(1) $2,236.00
reserved under the 1996 Stock Option
Plan; 4,668,182 $ 0.55(2) $ 2,567,500(2) $ 677.82
issued to employees as compensation
808,400 $ 0.55(3) $ 444,620(3) $ 117.82
===================================================================================================================================
<FN>
(1) Estimated in accordance with Rule 457 (h) solely for the purpose of calculating the registration fee on the basis of the
weighted average exercise price of $0.21 per share for outstanding options to purchase a total of 40, 331,818 shares of Common
Stock
(2) $0.55 per share (which is the average of the high and low prices of Registrant's Common Stock as reported on the OTC Bulletin
Board on January 21, 2000) for 4, 668, 182 shares of Common Stock reserved for issuance thereunder.
(3) Estimated in accordance with Rule 457 (h) solely for the purpose of calculating the registration fee on the basis of $0.55 per
share, which is the average of the high and low prices of Registrant's Common Stock as reported on the OTC Bulletin Board on
January 21, 2000.
------------------------------------------------------------------------------
====================================================================================================================================
</FN>
</TABLE>
<PAGE>
PART I.
INFORMATION REQUIRED IN THE 10 (a) PROSPECTUS
EXPLANATORY NOTE
At our Annual Meeting held on May 9, 1997, our shareholders approved
our 1996 Stock Option Plan. The options granted under the 1996 Plan may be
either incentive stock options ("ISOs") as defined in Section 422 of the
Internal Revenue Code of 1986, as amended, or options not intended to qualify as
incentive stock options ("Non-Qualified Options"). The authorized number of
shares reserved for issuance under the 1996 Plan was 15,000,000. Our
shareholders increased the authorized number of shares from 15,000,000 shares to
45,000,000 shares on July 29, 1999. This registration statement contains a
Reoffer Prospectus prepared in accordance with the requirements of Part I of
Form S-3. The prospectus covers offers and sales of shares of common stock, no
par value of U.S. Electricar, Inc. by: (i) employees, directors and consultants
of U.S. Electricar with respect to shares of our common stock that are reserved
under our 1996 Plan or that may be issued upon the exercise of currently
outstanding options granted under our 1996 Plan; and (ii) Messieurs. Kang and
Goodarzi with respect to 808,404 shares of our common stock that may be issued
to them upon the exercise of options granted to them as compensation. These
shareholders are identified below in the section entitled "The Selling
Shareholders." Options or shares of common stock also may be issued under the
1996 Plan in amounts and to persons not presently known by us. Such information,
when know, may be included in an amendment to this prospectus.
The 1996 Plan provide for the grant of stock options to employees,
directors and consultants of U.S. Electricar. The option price with respect to
ISOs may not be less than 100% of the fair market value of the underlying shares
on the date of grant of the option. However, in the case of an ISO granted to a
person owning over 10% of the common stock, the option price may not be less
than 110% of such fair market value. The exercise price or the Non-Qualified
Options may not be less than 85% of the fair market value. The fair market value
is the closing sale price of the Common Stock as reported on the National
Association of Securities Dealers Bulletin Board on the last market trading day
prior to the time of the grant. The aggregate fair market value (determined at
the time of grant) of the common stock subject to ISOs may not exceed $100,000.
ISOs are exercisable over the exercise period specified in the applicable option
agreement, but in no event may such period exceed five years from the date of
grant. In the case of an ISO granted to any person owning over 10% of the common
stock, the exercise period may not exceed five years from the date of grant.
Non-Qualified Options are exercisable over a period of up to five years from the
date of grant. Options granted under the 1996 Plan are generally nontransferable
and, with certain exceptions in the event of the death or disability of the
optionee, options granted under the 1996 Plan generally terminate ninety days
after termination of an optionee's employment with us. The 1996 Stock Option
Plan, as amended, is an exhibit to our Annual Report on Form 10-K filed with the
Securities and Exchange Commission on October 29, 1999 and should be read in
connection herewith.
REOFFER PROSPECTUS
U.S. ELECTRICAR, INC.
808,404 SHARES OF COMMON STOCK
Issued to Messieurs. Kang and Goodarzi as Compensation
This prospectus relates to the offering of up to 808,404 shares of our
common stock which may be sold from time to time in one or more transactions by
Messieurs. Don Kang and Gholam A. Goodarzi, employees of U.S. Electricar.
Messieurs. Kang and Goodarzi are also identified below in the section entitled
"The Selling Shareholders."
We will not receive any proceeds from the sale by the selling
shareholders of the shares covered by this prospectus.
1
<PAGE>
The selling shareholders will sell the shares at prices which are
current when the sales take place or at other prices upon which the parties
agree. The selling shareholders may or may not use brokers and dealers in these
transactions, but will pay brokerage fees or commissions if relevant. We will
pay all of the expenses associated with the registration of the shares and this
prospectus.
Our Common Stock is traded on the over-the-counter market and quoted on
the National Association of Securities Dealers (NASD) Bulletin Board under the
symbol "ECAR." On January 21, 2000, the closing sale price of our Common Stock
on the OTC Bulletin Board was $0.55 per share.
Investment in our common stock involves risk. See "risk factors" beginning on
page 5 of this prospectus.
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.
The date of this prospectus is January 28, 2000.
2
<PAGE>
TABLE OF CONTENTS
Page
Prospectus ................................................................ 4
U. S. Electricar .......................................................... 5
Risk Factors .............................................................. 5
Disclosure Regarding Forward-Looking Statements ........................... 10
Use of Proceeds ........................................................... 10
The Selling Shareholders .................................................. 10
Plan of Distribution ...................................................... 11
Legal Matters ............................................................. 12
Experts ................................................................... 12
Documents Incorporated by Reference ....................................... 12
Where to Find More Information About U.S. Electricar ...................... 13
Indemnification and the SEC's Position on Enforceability .................. 13
Information Required in Registration Statement ............................ 13
Signatures ................................................................ 16
Power of Attorney ......................................................... 17
Index to Exhibits ......................................................... 18
3
<PAGE>
PROSPECTUS
You should read the entire prospectus, especially the risks discussed
under "Risk Factors" beginning on page 5 of this prospectus and the other
information incorporated by reference in this prospectus before making an
investment decision.
4
<PAGE>
U.S. ELECTRICAR
Our principal executive offices are located at 19850 South Magellan
Drive, Torrance, California 90502. The telephone number at that location is
(310) 527-2800.
U.S. Electricar designs, develops and markets electric and hybrid
electric drive-trains and their related components as well as alternative fuel
vehicles. The drive-trains incorporate our proprietary Panther technology which
consists of an electric motor and electronic controls that regulate the flow of
electricity to and from the batteries (at various voltage and amperages) to
propel the vehicle. We are also developing new battery technologies based on our
Panther(TM) technology that are so precise that they could be used for battery
conditioning. Other components such as air conditioning, heat pump units,
electro-hydraulic power steering units are being developed and designed by us.
We are currently focusing our development efforts primarily in the following
areas:
o Technical proposals and program development under the U.S.
government's Defense Advanced Research Project Agency and the
Department of Transportation;
o Power Control and Drive Systems and related technologies;
o Shuttle and Transit Bus integration and development; and
o Subsystem development (i.e., climate control, power
management).
We have made our Panther(TM) technology available to third party
vendors for integration into their own products. We are also offering
BatterCare(TM), a battery management system to Original Equipment Manufacturers.
We have several key contracts with the U.S. government's Defense Advanced
Research Project Agency and the Department of Transportation, including the
analysis of a new plastic lithium ion vehicle battery concept, testing of
advanced vehicle batteries and development of an airport electric passenger tram
system. We also have several major engineering contracts with Hyundai Motor
Company to design, develop and test electric drive-trains and related products.
Hyundai Motor Company is also contracting with us for the development of an
advanced charging unit and a hybrid electric vehicle.
RISK FACTORS
You should carefully consider the risks described below before making
an investment decision. The risks and uncertainties described below are not the
only ones facing us. Additional risks and uncertainties not presently known to
us or that we currently deem immaterial may also impair our business operations.
This prospectus also contains "forward-looking" statements which involve risks
and uncertainties. Our actual results could differ materially from those
anticipated in these forward-looking statements as a result of certain factors,
including those set forth below and elsewhere in this prospectus.
If we do not raise significant additional capital, we will be unable to
commercialize our products or to fund continuing operations.
We need substantial working capital to fund our operations. As of
October 31, 1999, we had an accumulated deficit of $85,686,000. Our long-term
capital requirements will depend on numerous factors, including among others,
the extent and progress of additional development and manufacturing activities
related to electric vehicles. During the three years ended July 31, 1999, we
obtained approximately $3 million (net of debt repayments) in cash from
financial activities through private placements of common stock and Series A
preferred stock, the exercise of options and warrants, and the issuance of
convertible subordinated notes payable and secured convertible bonds and notes.
During the fiscal year ended July 31, 1999, we received $200,000 from a European
investor group in the form of a short-term, non-interest bearing promissory
note. Unless we are successful in our efforts to establish collaborative
agreements to sell our electric and hybrid drive-trains and electric vehicles,
our cash resources will be used to satisfy our existing liabilities, and we will
therefore be unable to fund our operations, which may result in significant
delay of our planned activities or the cessation
5
<PAGE>
of operations. Even if we are successful in these efforts to raise additional
funds, such funds may not be adequate to fund our operations on a long-term
basis. We expect that we will continue to incur losses through 2000 and will
have to rely extensively on cash from external financing.
We will need to obtain additional funding through public or private
equity or debt financing, collaborative agreements or from other sources to
continue our research and development activities, fund operating expenses and
commercialize our products. If we raise additional funds by issuing equity
securities, current stockholders may experience significant dilution. If we
obtain additional funds through collaborative agreements, we may be required to
relinquish rights to certain of our technologies, products or marketing
territories that we would otherwise seek to develop or commercialize ourselves.
We may be unable to obtain adequate financing on acceptable terms when needed.
If we are unable to obtain adequate funds, we may be required to reduce
significantly our spending and delay, scale back or eliminate one or more of our
research, development, or commercialization programs, which would have a
material adverse effect on our business, financial condition and results of
operations.
We cannot predict our future profitability.
We have spent substantial amounts of money on research, development,
administrative and other costs associated with our efforts to become an
international manufacturer and distributor of electric vehicles. We are
obligated to perform research and development activities under development and
licensing agreements. We intend to continue increasing certain of our operating
expenditures, including our research and development and sales and marketing. We
cannot assure you that we will generate a sufficient level of revenue to offset
these expenditures or achieve or sustain profitability, or that we will be able
to adjust spending in a timely manner to respond to any unanticipated decline in
revenue due to the fact that our expenditures for sales and marketing and
research and development are, in the short term, relatively fixed. Our ability
to increase revenues or achieve profitability in the future will depend on our
ability to increase sales of our products, reduce the cost of manufacturing, and
successfully introduce and sell enhanced versions of our existing products and
new products.
Our operating results are likely to fluctuate in future periods and may fail to
meet the expectations of securities analysts or investors.
Our annual and quarterly operating results have fluctuated in the past
and may fluctuate significantly in the future as a result of numerous factors,
some of which are outside of our control. These factors include:
o market acceptance of our products;
o competitive pressures, including pricing pressures from our
partners and competitors;
o the timing or cancellation of key contracts;
o the timing of new product by us, our partners or our
competitors;
o variations in the mix of products offered by us;
o changes in the pricing policies of our suppliers;
o the availability and cost of key components; and
o the timing of personnel hiring.
We may also experience substantial period to period fluctuations in
future operating results and declines in gross margin as a result of the erosion
of average selling prices for electric propulsion systems and components for
electric and hybrid vehicles due to a number of factors, including competition
and rapid technological change. We anticipate that average selling prices for
our products will decrease over time due to competitive pressures. Decreasing
average selling prices could cause us to experience decreased revenues despite
an increase in the number of units sold. We cannot assure you that we will be
able to sustain or improve our gross margins in the future, or that we will be
able to offset future price declines with cost reductions.
6
<PAGE>
As a result of these and other factors, it is possible that in some
future period our operating results will be below the expectations of securities
analysts and investors. In that event, the trading price of our common stock
would likely decline.
Product liability claims asserted against us in the future could exceed our
insurance coverage and result in substantial liability.
Our business exposes us to potential product liability risks that are
inherent in the development, testing, manufacture, marketing and sale of motor
vehicles. Product liability insurance for the motor vehicles industry generally
is expensive. Our present product liability insurance coverage, which includes
coverage for acts by third parties, including manufacturers of our product, may
not be adequate. We will also need to increase our insurance coverage as we
further develop our products, and we may be unable to obtain adequate insurance
coverage against all potential claims at a reasonable cost. Some of our
development and manufacturing agreements contain insurance and indemnification
provisions pursuant to which we could be held accountable for certain
occurrences. If we are subject to product liability claims for which we have
inadequate insurance, we could be required to use a large amount of cash, which
would then not be available for funding operations or development and
commercialization of our products.
Our market is subject to rapid technological change.
The electric vehicle industry is still in its infancy. These products
encompass a wide variety of technologies aimed at both consumer and commercial
markets. The critical role of technology in this market is demonstrated through
several product offerings. Applied technologies range from direct current (DC)
motor drives to alternate current (AC) induction motor drives, from conversion
vehicles to purpose-built (OEM) vehicles, from lead-acid batteries to more
advanced power storage technologies and from traditional materials to more
advanced composite materials. As the industry matures, key technologies and
capabilities are expected to play critical competitive roles. If we do not meet
these technological changes and challenges by introducing new products, our
product line will become obsolete which would have a material adverse effect on
our business, financial condition and results of operations. We cannot assure
you that we will be able to respond quickly and effectively to technological
change.
The market in which we operate is highly competitive, and we may not be able to
compete effectively.
The competition to develop and market electric vehicles has increased
during the last year. There are many large and small companies, both domestic
and foreign, now in, poised to enter, or entering this industry. Most of the
major domestic and foreign automobile manufacturers (1) have produced
design-concept electric vehicles, and/or (2) have developed improved electric
storage, propulsion and control systems, and/or (3) are now entering or planning
to enter into production. Several non-automotive companies are also developing
improved electric storage, propulsion and control systems. Our most immediate
competitors are: Solectria, Inc., Siemens AG, and Lockheed Martin, Inc. Our
future prospects will be highly dependent upon the successful development and
introduction of new products that are responsive to market needs and can be
manufactured and sold at a profit. The development of hybrid-electric and
alternative fuel vehicles, such as compressed natural gas, fuel cells and hybrid
cars poses a competitive threat to us in markets for low emission vehicles but
not in markets where government mandates call for zero emission vehicles. Growth
of the present limited demand for electric vehicles depends upon the ability of
electric and hybrid-electric vehicles to successfully compete with vehicles
powered with internal combustion engines on price and performance. There can be
no assurance that we will be able to successfully develop or market new products
that will compete effectively.
Some of our competitors and potential competitors have substantially
greater name recognition and technical, financial and marketing resources than
we do, and we can give you no assurance that we will be able to compete
effectively in our target markets. As a result, they may be able to undertake
more extensive marketing campaigns, adopt more aggressive pricing policies and
devote substantially more resources to developing new products than we can. We
cannot
7
<PAGE>
assure you that we will have the financial resources, technical expertise or
marketing, manufacturing, and support capabilities to compete successfully. This
competition could result in price reductions, reduced profit margins and loss of
market share, which could materially and adversely affect our business,
financial condition and results of operations.
Our success depends on environmental initiatives and legislation to promote the
use of alternative fuel vehicles.
Federal legislation was enacted to promote the use of alternative fuel
vehicles, including electric vehicles. Several states have also adopted
legislation that sets deadlines for the introduction of zero emission vehicles
("ZEVs"). The State of California delayed the mandated introduction of ZEVs from
1998 to 2003, but still retained the original required percentage of ZEVs and
now hybrid-electric vehicles for 2003 at 10%. The State of California estimates
that a combination of 100,000 electric and hybrid electric vehicles will be
required to meet the State's 2003 mandate. The U.S. Department of Energy also
modified their rules governing how state fleets and utility fleets must comply
with the Energy Policy Act of 1992 on alternative fuel transportation programs.
A reverse in the trend requiring the use of non-polluting or low emission
vehicles could have a material adverse effect on our business, financial
condition and results of operations.
Our reliance on key contracts.
Net sales of $2,774,000 for 1999 increased $836,000 or 43% from
$1,938,000 in 1998. Two primary factors caused this increase. First, in 1999, we
sold a technology license to Hyundai Heavy Industries for $600,000. Second, the
Company increased engineering, development and testing of electric and hybrid
drive-trains and related components in conjunction with Hyundai Motor Company of
Korea and the U.S. Government through United States Postal Service, Defense
Advanced Research Project Agency and the Department of Transportation programs.
Of the Company's total sales for 1999, $1,954,000, or 70% were revenues realized
on engineering contracts with Defense Advanced Research Project Agency, the
Hyundai Group of Korea and other customers. Although we anticipate deriving
further development contracts from these relationships as well as utilizing
Hyundai Heavy Industries to manufacture our drive systems for international
sales, we cannot assure you that these events will occur. Our business,
financial condition and result of operations if we cannot develop joint ventures
with global vehicle and bus manufacturers, or other strategic partnership will
be adversely affected.
Our ability to protect our intellectual property may affect our ability to
compete.
Our future success and ability to compete is dependent in part upon our
proprietary technology. We rely on a combination of copyright, patent, trademark
and trade secrets laws and nondisclosure agreements to establish and protect our
proprietary technology. We currently hold one United States patent and have one
United States patent application pending and several United States trademark and
service mark applications pending. However, we cannot assure you that patents or
trademarks will be issued with respect to pending or future patent and trademark
applications or that our patents will be upheld as valid or will prevent the
development of competitive products or that any actions we have taken will
adequately protect our intellectual property rights.
We generally enter into confidentiality agreements with our employees,
consultants, customers and potential customers to limit the disclosure and use
of our proprietary information. Despite our efforts to protect our proprietary
rights, unauthorized parties may attempt to copy or otherwise obtain or use our
products or technology. We also cannot assure you that our competitors will not
independently develop technologies that are substantially equivalent or superior
to our technology. In addition, the laws of some foreign countries do not
protect our proprietary rights to the same extent as do the laws of the United
States.
We are also subject to the risk of adverse claims and litigation
alleging infringement of the intellectual property rights of others. We cannot
assure you that third parties will not assert infringement claims in the future
with respect to
8
<PAGE>
our current or future products. Any such assertion, regardless of its merit,
could require us to pay damages or settlement amounts and could require us to
develop non-infringing technology or acquire licenses to the technology that is
the subject of asserted infringement. This litigation or potential litigation
could result in product delays, increased costs or both. In addition, the cost
of any litigation and the resulting distraction of our management resources
could have a material adverse effect on our business, results of operations or
financial condition. We also cannot assure you that any licenses of technology
necessary for our business will be available or that, if available, these
licenses can be obtained on commercially reasonable terms. Our failure to obtain
these licenses could have a material adverse effect on our business, results of
operations and financial condition.
The liquidity and marketability of our stock.
Our stock is currently traded on National Association of Securities
Dealers, Inc.'s OTC Bulletin Board. Although our securities are included on the
OTC Bulletin Board, there can be no assurance that a regular trading market for
the securities will be sustained in the future. The OTC Bulletin Board is an
unorganized, inter-dealer, over-the-counter market which provides significantly
less liquidity than The Nasdaq Stock Market, and quotes for stocks included on
the OTC Bulletin Board are not listed in the financial sections of newspapers as
are those for The Nasdaq Stock Market. Therefore, prices for securities traded
solely on the OTC Bulletin Board may be difficult to obtain. The reduced
liquidity of our stock and the reduced public access to quotations for our stock
could depress the market price of our stock.
"Penny Stock" regulations may impose restrictions on marketability of our stock.
The Securities and Exchange Commission has adopted regulations which
generally define "penny stock" to be any equity security that is not traded on a
national securities exchange or Nasdaq and that has a market price of less than
$5.00 per share or an exercise price of less than $5.00 per share, subject to
certain exceptions. In the past, our securities that are included on the OTC
Bulletin Board have traded at less than $5.00 per share, our stock may therefore
become subject at any time to rules that impose additional sales practice
requirements on broker-dealers who sell such securities to persons other than
established customers and accredited investors. Accredited investors generally
include investors that have assets in excess of $1,000,000 or an individual
annual income exceeding $200,000, or, together with the investor's spouse, a
joint income of $300,000. For transactions covered by these rules, the
broker-dealer must make a special suitability determination for the purchase of
such securities and have received the purchaser's written consent to the
transaction prior to the purchase. Additionally, for any transaction involving a
penny stock, unless exempt, the rules require, among other things, the delivery,
prior to the transaction, of a risk disclosure document mandated by the SEC
relating to the penny stock market and the risks associated therewith. The
broker-dealer must also disclose the commission payable to both the
broker-dealer and the registered representative, current quotations for the
securities and, if the broker-dealer is the sole market-maker, the broker-dealer
must disclose this fact and the broker-dealer's presumed control over the
market. Finally, monthly statements must be sent disclosing recent price
information for the penny stock held in the account and information on the
limited market in penny stocks. Consequently, the penny stock rules may restrict
the ability of broker-dealers to sell our securities and may affect the ability
of stockholders to sell our securities in the secondary market.
Volatility of our stock price.
The price of our common stock has been particularly volatile and will
likely continue to fluctuate in the future. Announcements of technological
innovations, regulatory matters or new commercial products by us or our
competitors, developments or disputes concerning patent or proprietary rights,
publicity regarding actual or potential product results relating to products
under development by us or our competitors, regulatory developments in both the
United States and foreign countries, public concern as to the safety and the
future of electric vehicles, and economic and other external factors, as well as
period-to-period fluctuations in financial results, may have a significant
impact on the market price of our common stock. In addition, from time to time,
the stock market experiences significant price and volume fluctuations
9
<PAGE>
that may be unrelated to the operating performance of particular companies or
industries. The market price of our common stock, like the stock prices of many
publicly traded smaller companies, has been and may continue to be highly
volatile.
Dependence on key personnel.
Our future success depends largely on the continued service of our
management, key product and application engineers and technical sales support
personnel as well as our ability to identify, hire and retain additional senior
personnel. We face intense competition for qualified personnel, and we cannot be
certain that we will successfully attract and retain additional qualified
personnel in the future. In particular, our success is highly dependent upon the
personal abilities of our senior management and technical personnel. We do not
have employment contracts with any of our executive officers. We believe that
our future success will depend in large part upon our continued ability to hire,
retain and motivate highly skilled employees who are in great demand. We cannot
assure you that we will be able to do so. We do not anticipate that we will pay
cash dividends on our common stock. We have never declared or paid any cash
dividends on our common stock and do not anticipate paying cash dividends on our
common stock in the foreseeable future. In addition, our debt securities contain
limitations on our ability to declare and pay cash dividends.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes "forward-looking statements" including
statements containing the words "believes," anticipates," "expends" and words of
similar import. All statements other than statements of historical fact included
in this prospectus, including without limitation, statements under "Prospectus
Summary," "Risk Factors," "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and "Business" in documents incorporated by
reference herein and located elsewhere herein, regarding U.S. Electricar or any
of the transactions described herein, including the timing, financing,
strategies and effects of these transactions, are forward-looking statements.
Although we believe that the expectations reflected in these forward-looking
statements are reasonable, we can give no assurance that these expectations will
prove to have been correct. Important factors that could cause actual results to
differ materially from expectations are disclosed in this prospectus, including,
without limitation, in conjunction with the forward-looking statements in this
prospectus and/or under "Risk Factors." We do not intend to update these
forward-looking statements.
USE OF PROCEEDS
The shares covered by this prospectus are being offered by the selling
shareholders and not by us. As a result, we will not receive any proceeds from
the sale of the shares.
SELLING SHAREHOLDERS
The selling shareholders listed below have or will acquire the shares
being registered pursuant to the exercise of options previously granted to them
by U.S. Electricar. The selling shareholders acquired beneficial ownership of
their respective shares through the purchase of restricted securities.
The following table shows, in each case as of January 21, 2000:
o the name of each selling shareholder;
o how many shares of common stock the selling shareholder
beneficially owns;
10
<PAGE>
o how many shares of common stock the selling shareholder can
resell under this prospectus; and assuming a selling
shareholder sells all of the share of common stock listed next
to his or her name, how many shares the selling shareholder
will beneficially own after completion of the offering.
We have calculated the number of shares each selling shareholder
"beneficially owns" in accordance with Rule 13d-3 under the Exchange Act.
Beneficial ownership as defined in Rule 13d-3 does not necessarily indicate
beneficial ownership for any other purpose. Under Rule 13d-3, a person
beneficially owns all shares as to which he or she has either sole or shared
voting power or sole or shared investment power, as well as all shares which
they have the right to acquire within 60 days of the calculation date by
exercising any stock option or other right. Since the list below speaks as of
January 21, 2000, beneficial ownership therefore includes all shares which the
selling shareholder has the right to acquire within 60 days of January 21, 2000
(i.e., on or before March 22, 2000). Shares beneficially owned by each selling
shareholder represent less than one percent (1%) of our outstanding common
stock.
<TABLE>
<CAPTION>
Shares which May be Sold Shares Beneficially
Selling Shareholder Shares Beneficially Owned Under this Prospectus Owned after Offering
- -------------------------- -------------------------------- ------------------------------ -------------------------
<S> <C> <C> <C>
Gholam Abas Goodarzi 404,200 404,200 -0-
Don Kang 404,200 404,200 -0-
</TABLE>
PLAN OF DISTRIBUTION
We have been advised by the selling shareholders that they intend to
sell all or a portion of the shares from time to time in the National
Association of Securities Dealers, Inc.'s over-the-counter Bulletin Board and
that sales will be made at prices prevailing on the OTC Bulletin Board at the
time of such sales. The selling shareholders may also make private sales
directly or through a broker or brokers, who may act as agent or as principal.
Further, the selling shareholders may choose to dispose of the shares by gift to
a third party or as a donation to a charitable or other non-profit entity. In
connection with any sales, the selling shareholders and any brokers
participating in such sales may be deemed to be underwriters within the meaning
of the Securities Act.
Any broker-dealer participating in such transaction as agent may
receive commissions from the selling shareholder (and, if such broker acts as
agent for the purchaser of such shares, from such purchaser). Broker-dealers may
agree with the selling shareholders to sell a specified number of shares at a
stipulated price per share, and to the extent such a broker-dealer is unable to
do so acting as agent for the selling shareholders, to purchase as principal any
unsold shares at the price required to fulfill the broker-dealer commitment to
the selling shareholders. Broker-dealers who acquire shares as principal may
thereafter resell such shares from time to time in transactions (which may
involve crosses and block transactions and which may involve sales to and
through other broker-dealers, including transactions of the nature described
above) in the over-the-counter market, in negotiated transactions or otherwise
at market prices prevailing at the time of sale or at negotiated prices, and in
connection with such resales may pay to or receive from the purchasers of such
shares commissions computed as described above.
Any securities covered by this prospectus which qualify for sale
pursuant to Rules 144 and 701 under the Securities Act may be sold under Rule
144 rather than pursuant to this prospectus. In general, under Rule 144 as
currently in effect, a person (or persons whose shares are aggregated),
including any person who may be deemed to be our "affiliate", is entitled to
sell within any three month period "restricted shares" beneficially owned by him
or her in am amount that does not exceed the greater of (i) one percent of the
then outstanding shares of common stock or (ii) the average weekly trading
volume in shares of common stock during the four calendar weeks preceding such
sale, provided that at least one year has elapsed since such shares were
acquired from our affiliate. Sales are also subject to certain requirements as
to the manner of sale, notice and availability of current public information
regarding us. However, a person who has not been our "affiliate" at any time
within three months prior to the
11
<PAGE>
sale is entitled to sell his or her shares without regard to the volume
limitations or other requirements of Rule 144, provided that at least one year
has elapsed since such shares were acquired from us or our affiliate. In
general, under Rule 701 as currently in effect, any employee, consultant or
advisor of us who purchases shares from us in connection with a compensatory
stock or option plan or other written agreement relates to compensation is
eligible to resell such shares in reliance on Rule 144, but without compliance
with certain restrictions contained in Rule 144.
There can be no assurance that the selling shareholders will sell any
or all of the shares hereunder.
LEGAL MATTERS
The validity of the Shares of common stock offered hereby will be
passed upon by Bay Venture Counsel, LLP, Oakland, California, counsel for U.S.
Electricar.
EXPERTS
The financial statements incorporated by reference in this prospectus
by reference to the annual report on Form 10-K for the year ended July 31, 1999,
have been so incorporated herein in reliance on the report of Moss Adams LLP,
given on the authority of said firm as experts in auditing and accounting.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We are
incorporating by reference in this prospectus the following documents:
o our annual report on Form 10-K for our fiscal year ended July 31, 1999;
o our quarterly reports on Form 10-Q for the quarter ended October 31,
1999;
o our registration statement on Form S-1, as amended dated July 31, 1994;
and
o our registration statement on Form 8-A dated August 12, 1994.
We are also incorporating by reference in this prospectus all reports
and other documents that we file after the date of this prospectus pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior
to the termination of the offering of securities under this prospectus. These
reports and documents will be incorporated by reference in and considered to be
a part of this prospectus as of the date of filing of such reports and
documents.
Any statement contained in this prospectus or in a document which is
incorporated by reference herein and will be modified or superseded for purposes
of this prospectus to the extent that a statement in any document that we file
after the date of this prospectus that also is incorporated by reference herein
modifies or supersedes such prior statement. Any such statement so modified or
superseded will not, except as so modified or superseded , constitute a part of
this prospectus.
This prospectus incorporates by reference documents which are not
presented in this prospectus or delivered to you with it. You may request, and
we will send to you, without charge, copies of these documents, other than
exhibits to these documents, which we will send to you for a reasonable fee.
Requests should be directed to the Office of the Secretary, 19850 South Magellan
Drive, Torrance, California 90502 (telephone 310-527-2800).
12
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
<TABLE>
<CAPTION>
We file annual quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy materials that we have
filed with the SEC, including the registration statement, at the following SEC
public reference rooms:
<S> <C> <C>
Judiciary Plaza 7 World Trade Center Northwest Atrium Center
450 Fifth Street, N.W, Suite 1300 500 West Madison Street, Room 1024 Suite 1400
Washington, D.C. 20549 New York, New York 10048 Chicago, Illinois 60661
</TABLE>
You can also obtain copies of filed documents, at prescribed rates, by
mail from the Public Reference Section of the SEC at its Judiciary Plaza
location, listed above, or by telephone at 1-800-SEC-0330 or electronically
through the SEC's Web Site at http://www.sec.gov.
We furnish our stockholders with annual reports containing our audited
financial statements and with proxy material for our annual meetings complying
with the proxy requirements of the Securities Exchange Act of 1934.
INDEMNIFICATION AND THE SEC'S POSITION ON ENFORCEABILITY
Section 317 of the California General Corporation Law authorizes a
corporation to indemnify its directors and officers. This may under certain
circumstances include indemnification for liabilities arising under the
Securities Act as well as for expenses incurred in that regard. Our certificate
of incorporation and bylaws provide for the indemnification of present and
former directors and employees and agents of U.S. Electricar to the extent
permitted by the California General Corporation Law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling us
pursuant to the foregoing provisions, we have been informed that, in the opinion
of the SEC, such indemnification is against public policy as expressed in the
Securities Act of 1933 and is therefore unenforceable.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
All documents subsequently filed by the Registrant pursuant to sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents.
The following documents and information previously filed with the
Securities and Exchange Commission by the Registrant are hereby incorporated by
reference in this Registration Statement:
13
<PAGE>
o our annual report on Form 10-K for our fiscal year ended July 31, 1999;
o our quarterly reports on Form 10-Q for the quarters ended October 31,
1999;
o our registration statement on Form S-1, as amended dated July 31, 1994;
and
o our registration statement on Form 8-A dated August 12, 1994.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities have been sold of
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation limits, to the maximum
extent permitted by California law, the liability of directors for monetary
damages. The Registrant's Bylaws provide that the company shall indemnify its
officers, directors, employees, and other agents to the fullest extent permitted
by California law.
Section 317 of the California General Corporation law provides that a
corporation may indemnify a director, officer, employee, or agent made or
threatened to be made a party to a proceeding by reason of the fact that he or
she was a director, officer, employee or agent of the corporation or was serving
at the request of the corporation, against expenses actually and reasonably
incurred by him or her in connection with such proceeding if he or she acted in
good faith and in a manner he or she reasonably believed to be in the best
interests of the corporation and with respect to any criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 1996 Stock Plan, as amended, and form of Stock Option
Agreement thereunder.*
5.1 Opinion of Bay Venture Counsel, LLP, as to legality of
securities being registered.
23.1 Consent of Moss Adams, LLP, independent accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-2).
*Incorporated by reference to the Registrant's Annual Report on Form 10-K filed
on October 29, 1999.
14
<PAGE>
Item 9. Undertakings.
(a) The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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 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 foregoing provisions, 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.
15
<PAGE>
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, U.S.
Electricar, Inc., a corporation organized and existing under the laws of the
State of California, certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8/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 Torrance, State of California, on this
28th day of January, 2000.
U.S. ELECTRICAR, INC.
By: /s/ Carl D. Perry
----------------------------------------------------
Carl D. Perry, President and Chief Executive Officer
16
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Carl D. Perry as his attorney-in-fact,
with full power of substitution for him in any and all capacities to sign any
amendments to this Registration Statement on Form S-8/S-3, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact, or his substitutes, may do or cause to be done by virtue
hereof.
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Carl D. Perry January 28, 2000
- --------------------------
Carl D. Perry President, Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Carl D. Perry January 28, 2000
- ---------------------------
Carl D. Perry Acting Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Anthony Rawlinson
- --------------------------- January 28, 2000
Anthony Rawlinson Chairman of the Board
- ---------------------------
Malcom Currie Director
/s/ Edwin O. Riddell January 28, 2000
- ---------------------------
Edwin O. Riddell Director
- ---------------------------
John J. Micek III Director
/s/Donald H. Dreyer January 28, 2000
- ---------------------------
Donald H. Dreyer Director
</TABLE>
17
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1 1996 Stock Plan, as amended, and form of Stock Option Agreement
thereunder.*
5.1 Opinion of Bay Venture Counsel, LLP, as to legality of securities being
registered.
23.1 Consent of Moss Adams, LLP, independent accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-2).
*Incorporated by reference to the Registrant's Annual Report on Form 10-K filed
on October 29, 1999.
18
EXHIBIT 5
BAY VENTURE COUNSEL, LLP
Attorneys at Law
Lake Merritt Plaza Building
1999 Harrison Street, Suite 1300
Oakland, California 94612
Telephone (510) 273-8750
Facsimile (510) 834-7440
January 28, 2000
U.S. Electricar, Inc.
19850 South Magellan Drive
Torrance, California 90502
Re: Registration Statement on Form S-8\S-3
Gentlemen:
As outside counsel to U.S. Electricar, a California corporation (the
"Company"), we have been asked by the Company to review the Registration
Statement on Form S-8\S-3 to be filed by the Company with the Securities and
Exchange Commission on, or about, January 28, 2000 (the "Registration
Statement"). This is in connection with the registration under the Securities
Act of 1933, as amended, of forty-five million (45,000,000) shares of the
Company's Common Stock (the "Plan Shares"), outstanding or reserved for issuance
pursuant to the 1996 Stock Option Plan and 808,400 shares (the "Resale Shares")
to be sold by certain shareholders listed in the Registration Statement (the
"Selling Shareholders")
As your outside counsel, we have examined the proceedings and such
other documents as we have deemed necessary relating to the issuance of
45,000,000 Plan Shares and sale of the 808,400 Resale Shares.
In rendering this opinion, we have assumed, without investigation, the
genuineness of all signatures; the correctness of all certificates; the
authenticity of all documents submitted to us as originals; the conformity to
original documents of all documents submitted to us as certified, photostatic or
facsimile copies and the authenticity of the originals of such copies; and the
accuracy and completeness of all records made available to us by, or on behalf
of, the Company. In addition, we have assumed, without investigation, the
accuracy of the representations and statements as to factual matters made by the
Company, its officers and employees, and public officials. Nothing has come to
our attention, however, which would lead us to question the accuracy or
completeness of such representations, warranties or statements.
In rendering the opinion hereinafter expressed, we have examined and
relied upon such documents and instruments as we have deemed necessary and
appropriate. It is our opinion that the Resale Shares and the Plan Shares when
issued and sold in the manner described in the Registration Statement and in
accordance with the resolutions adopted by the Board of Directors of the Company
,will be validly issued, fully paid and nonassessable.
We are admitted to practice law only in the State of California, and we
express no opinion concerning any law other than the law of the State of
California. This opinion is intended solely for your benefit and is not to be
relied upon by any other person, firm, or entity without our prior written
consent.
We consent to the use of this opinion as an Exhibit to the Registration
Statement, and further consent to all references to this Firm in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ Bay Venture Counsel, LLP
BAY VENTURE COUNSEL, LLP
19
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8/S-3 of our report, dated September 17, 1999, on our audits of the
financial statements of U.S. Electricar, Inc., as of July 31, 1999 and 1998, and
for each of the three years ended July 31, 1999, which report is included in the
Company's Annual Report on Form 10-K for the year ended July 31, 1999. We also
consent to the reference to our Firm under the caption, "Experts," in the
prospectus.
/s/ Moss Adams LLP
Santa Rosa, California
January 27, 2000
