SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
Energy Power Systems Limited
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(Exact Name of Registrant as Specified in Its Charter)
Ontario, Canada Not Applicable
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(Jurisdiction of incorporation) (IRS Employer Identification
No.)
2 Adelaide Street West
Toronto, Ontario M5H 1L6
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of
securities
pursuant to Section 12(b) of the pursuant to Section 12(g) if the
Exchange Act and is effective pursuant Exchange Act and is effective
to General Instruction A.(c), pursuant to General Instruction
please check the following box. |X| A.(d), please check the
following box. |_|
SECURITIES ACT REGISTRATION STATEMENT FILE NUMBER TO WHICH THIS FORM RELATES:
N/A
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(If applicable)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Common Shares, no par value American Stock Exchange, Inc.
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
None
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(Title of Class)
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The common shares of Energy Power Systems Limited (the "Company") to
be
registered on the American Stock Exchange, Inc. (the "Exchange") is
the
Company's common shares, no par value per share (the "Common Shares").
Each share of Common Shares entitles the holder thereof to one vote on
all
matters submitted to a vote of the Shareholders.
The Company is authorized to issue an unlimited number of
Common Shares, of which 10,578,645 shares were outstanding as of
May 17, 2002. In addition, the Company is authorized to issue an
unlimited number of shares of "blank check" Class A Preferred
Shares issuable in Series with such rights, preferences and
privileges as may be determined from time-to-time by the
Company's Board of Directors, subject to the basic provisions for
the Class A Preferred Shares that are applicable to each series
as contained in the Articles of the Company. On November 17,
1998, the Company amended its articles of incorporation to
authorize the first series of the Class A Preferred Shares, an
unlimited number of Class A Preferred Shares, Series 1 (the
"Series 1 Shares"). The Series 1 Shares are non-cumulative,
convertible, non-voting and redeemable, at a price ranging from
Cdn $2.20 to Cdn $3.00 per share, at the option of the Company.
As of the date of this Annual Report none of the Series 1 Shares
have been issued. On February 2, 2001 the Company amended its
Articles to authorize the second series of the Class A Preferred
Shares, an unlimited number of Class A Preferred Shares, Series 2
(the "Series 2 Shares") ranking senior with the Series 1 Shares
to the Common Shares. The Series 2 Shares are cumulative,
convertible, voting and redeemable, at Cdn $1.00 per Series 2
Share after 5 years from issuance. As of May 17, 2002 there were
nil Series 2 Shares outstanding.
A description of the rights, preferences and privileges
relating to each class of the Company's shares is as follows:
Dividend Rights.
Series 1 Shares. The Company's Articles provide that an
annual preferential dividend equal to $0.20 per share for each
Series 1 Share shall be declared from available legal capital
each year; provided, however, that if such capital is not
available, the related dividend is extinguished and is not
cumulative. The preferential dividend on Series 1 Shares must be
paid before any dividend or distribution on the Common Shares.
Series 2 Shares. The Company's Articles provide that an
annual preferential 5% cumulative cash dividend per share for
each Series 2 Share, exclusive of any other series of Preference
Shares shall be declared from available legal capital each year.
The preferential dividend on Series 2 Shares must be paid before
any dividend or distribution on the Common Shares or any other
class or series of Preferred shares.
Voting Rights. Neither the Company's Articles nor its
Bylaws provide for the election or reelection of directors at
staggered intervals. The holders of Common Shares have equal
voting rights at meetings of the Company's shareholders. Each
holder of a Common Share shall have one vote for each Common
Share held at any meeting of the Company's shareholders. The
holders of the Series 2 Shares shall be entitled as such to
receive notice of and to attend and to vote at any meeting of
shareholders of the Company. Each holder of a Series 2 Share
shall have one vote for each Series 2 Share held at any meeting
of the Company's shareholders.
The Series 1 Shares are non-voting with three exceptions:
(i) if any preferred dividends have been declared but remain
unpaid, the Company may not pay dividends on Common Shares or
redeem Common Shares, unless such action is approved by a two-
thirds majority vote of the Series 1 Shares, (ii) if any
preferred dividends have been declared but remain unpaid, the
Company may not create or issue any equity shares equal to or
superior to the Series 1 Shares, unless such action is approved
by a two-thirds majority vote of the Series 1 Shares, and (iii)
the Series 1 shareholders are entitled to notice of, and
attendance and voting at, any shareholders' meeting relating to
the winding up or dissolution of the Company.
Conversion Rights.
Series 1 Shares. The Company's Articles provide that the
Series 1 Shares are convertible into Common Shares at the rate of
one Common Share for each Series 1 Share converted.
Series 2 Shares. The Company's Articles provide that the
holder of Series 2 Shares may, at the holder's option, convert
such shares into units (the "Units"). Each Unit is comprised of
one Common Share and one common share purchase warrant (the
"Warrants"). The conversion rate during the first 30 months
after issuance is one Unit for each 1.25 Series 2 Shares being
converted, with each Warrant included in the Unit exercisable at
$1.50 to acquire one Common Share for a period of 2 years.
Thereafter, each Series 2 Share is convertible into one Unit at
the 10 day weighted average trading price of the Common Shares of
the Company prior to conversion (the "Conversion Price"), with
each Warrant included in the Unit exercisable at a price equal to
the Conversion Price plus 10% to acquire one Common Share for a
period of 2 years.
Rights to Share in Any Surplus in the Event of Liquidation.
Under the Company's Articles, upon the dissolution, winding up or
liquidation of the Company, holders of Series 2 Shares are
entitled to receive a sum equivalent to the amount paid for the
Series 2 Shares plus any declared but unpaid dividends, prior to
any distribution to the holders of Common Shares or shares
ranking junior to the Series 2 Shares, and holders of Series 1
Shares are entitled to receive a sum equivalent to the amount
paid for the Series 1 Shares plus any declared but unpaid
dividends, prior to any distribution to the holders of Common
Shares or shares ranking junior to the Series 1 Shares. Holders
of Series 1 and 2 Shares are not entitled to share in any further
distribution of the assets or property of the Company. Holders
of the Common Shares are entitled to receive any remaining
property of the Company upon dissolution, after the noted
liquidation preference.
Redemption Provisions. Under the Company's Articles the
Company may redeem the Series 1 Shares at any time on notice to
holders of the Series 1 Shares, at a price per share ranging from
$2.20 to $3.00, depending on the date of the redemption. Upon
receipt of such notice, each holder of Series 1 Shares may elect
to convert the shares to Common Shares, at a formula defined in
the Articles, rather than have the shares redeemed. Apart from
the limitations contained in the Articles, the Company's
redemption of Series 1 Shares is governed by the Ontario Business
Corporations Act.
Under the Company's Articles, after five years from March
30, 2001 the holders of the Series 2 Shares shall be entitled to
require the Company to redeem, subject to the requirements of the
Ontario Business Corporations Act, the whole or any part of the
Series 2 Shares, at a price per share of $1.00. In addition, the
Company may redeem at any time from the date of issuance of the
Series 2 Shares the whole or any part of the then outstanding
Series 2 Shares upon payment for each Series 2 Share to be
redeemed of $1.00 plus all declared and unpaid dividends thereon.
Upon receipt of such notice, each holder of Series 2 Shares may
elect to convert the shares to Common Shares, at a formula
defined in the Articles, rather than have the shares redeemed.
Apart from the limitations contained in the Articles, the
Company's redemption of Series 2 Shares is governed by the
Ontario Business Corporations Act.
Other Provisions. Neither the Company's Articles nor its
Bylaws contain sinking fund provisions, provisions allowing the
Company to make further capital calls with respect to any
shareholder of the Company, or provisions which discriminate
against any holders of securities as a result of such shareholder
owning a substantial number of shares.
Annual general meetings of the Company's shareholders are
held on such day as is determined by resolution of the directors.
(Bylaws, Paragraph 45). Special meetings of the Company's
shareholders may be convened by order of the Chairman or Vice-
Chairman of the Board, the Managing Director, the President if he
is a director, a Vice-President who is a director, or the board
of directors. (Bylaws, Paragraph 46). Shareholders of record
must be given notice of such special meeting not less than 33
days nor more than 50 days before the date of the meeting.
Notices of special meetings of shareholders must state the nature
of the business to be transacted in detail and must include the
text of any special resolution or bylaw to be submitted to the
meeting. (Bylaws, Paragraph 47). The Company's board of
directors is permitted to fix a record date for any meeting of
the shareholders (Bylaws, Paragraph 51) that is between 35 and 50
days prior to such meeting.. The only persons entitled to
admission at a meeting of the shareholders are shareholders
entitled to vote, the Company's directors, the Company's
auditors, and others entitled by law, by invitation of the
chairman of the meeting, or by consent of the meeting. (Bylaws,
Paragraph 50).
Neither the Articles nor the Bylaws of the Company discuss
limitations on the rights to own securities or exercise voting
rights thereon, and there is no provision of the Company's
Articles or Bylaws that would delay, defer or prevent a change in
control of the Company, or that would operate only with respect
to a merger, acquisition, or corporate restructuring involving
the Company or any of its subsidiaries. The Company's Bylaws do
not contain a provision indicating an ownership threshold above
which shareholder ownership must be disclosed.
With respect to the matters discussed in this Item 10B, the
law applicable to the Company is not significantly different from
United States law. With the exception of the voting rights of
Series 1 holders noted above, neither the Articles nor the Bylaws
contain provisions governing changes in capital that are more
stringent than the conditions required by Ontario law.
The Company's corporation number as assigned by Ontario is
1186693. The Company's Articles of Amalgamation (as amended, the
"Articles") state that there are no restrictions on the business
the Company may carry on, but do not contain a stated purpose or
objective.
No Director of the Company is permitted to vote on any
resolution to approve a material contract or transaction in which
such Director has a material interest. (Bylaws, Paragraph 17).
Neither the Articles nor the Bylaws of the Company limit the
directors' power, in the absence of an independent quorum, to
vote compensation to themselves or any members of their body.
The Bylaws provide that directors shall receive remuneration as
the board of directors shall determine from time to time.
(Bylaws, Paragraph 15). Neither the Articles nor the Bylaws of
the Company discuss the retirement or non-retirement of directors
under an age limit requirement or the number of shares required
for director qualification.
Under the Articles and Bylaws, the board of directors may,
without the authorization of the shareholders, (i) borrow money
upon the credit of the Company; (ii) issue, reissue, sell or
pledge debt obligations of the Company; whether secured or
unsecured (iii) give a guarantee on behalf of the Company to
secure performance of obligations; and (iv) charge, mortgage,
hypothecate, pledge or otherwise create a security interest in
all currently owned or subsequently acquired real or personal,
movable or immovable, tangible or intangible, property of the
Company to secure obligations of the Company.
Except for certain provisions of the Articles relating to
the Class A Preferred Shares described above, neither the
Articles nor the Bylaws of the Company address the process by
which the rights of holders of stock may be changed. Thus the
general provisions of the Ontario Business Corporations Act
apply.
ITEM 2. EXHIBITS.
Not applicable.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Energy Power Systems Limited
Date: May 21, 2002 By: /s/ James C. Cassina
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James C. Cassina
President and Chief Executive
Officer