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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c) of the
Securities Exchange Act of 1934
Check the appropriate box:
[_] Preliminary Information Statement
[_] Confidential, for Use of the Commission Only (as permitted by Rule
14c-5(d)(2))
[X] Definitive Information Statement
ZAP
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(Name of Registrant as Specified In Its Charter)
Payment of Filing Fee (Check the appropriate box)
[X] No fee required.
[_] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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3) Per unit price or other underlying value of transaction computed pursuant
to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is
calculated and state how it was determined):
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4) Proposed maximum aggregate value of transaction:
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5) Total fee paid:
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[_] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
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2) Form, Schedule or Registration Statement No.:
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3) Filing Party:
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4) Date Filed:
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INFORMATION STATEMENT
OF
ZAP
501 FOURTH STREET
SANTA ROSA, CALIFORNIA 95401
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
This Information Statement is first being furnished on or about November
15, 2004 to the holders of record as of the close of business on September 30,
2004 (referred to in this Information Statement as the "Record Date") of the
common stock of ZAP (referred to in this Information Statement as "we", "us",
"our" or "ZAP").
Our Board of Directors has approved, and a total of nine shareholders
owning in the aggregate 13,068,474 shares of common stock outstanding as of the
Record Date have consented in writing to, the action described below. Such
approval and consent constitute the approval and consent of a majority of the
total number of shares of outstanding common stock and are sufficient under the
California General Corporations Laws (the "California Corporations Code") and
our Bylaws to approve the action. Accordingly, the action will not be submitted
to the other shareholders of ZAP for a vote. This Information Statement is being
furnished to shareholders to provide you with certain information concerning the
actions in accordance with the requirements of the Securities Exchange Act of
1934 and the regulations promulgated thereunder, including Regulation 14C.
The date of this Information Statement is November 15, 2004.
GENERAL
We will pay all costs associated with the distribution of this Information
Statement, including the costs of printing and mailing. We will reimburse
brokerage firms and other custodians, nominees and fiduciaries for reasonable
expenses incurred by them in sending this Information Statement to the
beneficial owners of our common stock.
We will only deliver one Information Statement to multiple shareholders
sharing an address unless we have received contrary instructions from one or
more of the shareholders. We will promptly deliver a separate copy of this
Information Statement to a shareholder at a shared address to which a single
copy of the document was delivered upon oral or written request to:
ZAP
Attn: Secretary
501 Fourth Street Santa Rosa, California 95401
Telephone No.: 707-525-8658
Shareholders may also address future requests for separate delivery of
Information Statements and/or annual reports by contacting us at the address
listed above.
INFORMATION ON CONSENTING SHAREHOLDERS
Pursuant to our Bylaws and the California Corporations Code, a vote by the
holders of at least a majority of our outstanding common shares is required to
effect the action described in this Information Statement. Each share of common
stock is entitled to one vote. As of the Record Date, we had 25,251,430 voting
shares of common stock issued and outstanding of which a majority of such shares
voting in favor of the action are required to pass the shareholder resolution
for this action.
Of the common stock outstanding and entitled to vote on the Record Date,
51.75% of such shares were voted in favor of the action.
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The following shareholders voted in favor of the action, pursuant to
California Corporations Code Section 902, as follows:
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NAME OF COMMON NUMBER OF COMMON SHARES DATE OF WRITTEN
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SHAREHOLDER VOTED IN FAVOR OF THE ACTION CONSENT
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Mercatus & Partners, Ltd. 2,941,176 October 13, 2004
Steven M. Schneider 2,900,000 October 8, 2004
Jeff Banks 2,700,000 October 9, 2004
Daka Development Ltd. 1,176,028 October 14, 2004
Gary Starr 1,034,739 October 8, 2004
Ridgewood ZAP LLC 705,136 October 12, 2004
Atocha Land LLC 611,395 October 22, 2004
Fusion Capital Fund II, LP 500,000 October 12, 2004
Jeff Schneider 500,000 October 14, 2004
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Total: 13,068,474
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NOTICE TO SHAREHOLDERS OF ACTION
APPROVED BY CONSENTING SHAREHOLDERS
THE ACTION
The Board of Directors of the company has determined to amend and restate
the company's Articles of Incorporation to vest in the Board of Directors the
right to designate and determine the rights and preferences of any series of
preferred stock the company may undertake to issue and sell in the future,
without the necessity of obtaining shareholder approval. The Amended and
Restated Articles of Incorporation (the "Amendment and Restatement"), which is
the subject of this shareholder action, does not increase the number of shares
of common stock or preferred stock available for issuance under the Articles of
Incorporation as currently in effect. A copy of the Amendment and Restatement is
attached hereto for your reference.
REASON FOR AMENDMENT AND RESTATEMENT
Our Board of Directors believes it is in the best interests of the company
to provide the Board the right from time to time to create, designate and
determine the rights and privileges of one or more new series of preferred stock
of the company without the need to obtain further shareholder approvals. One or
more new series of preferred stock may be created in connection with fund
raising activities or contractual obligations of the company, or for issuances
in any circumstance where our Board determines that the issuance of preferred
shares benefits the company. Under the Articles of Incorporation as presently in
effect, the creation of any new series of preferred stock would require the
approval of a majority of the outstanding shares of common stock of the company.
The necessity of a shareholder vote at an annual or special meeting in
connection with the determination of a new series of preferred stock would, in
the view of the Board of Directors, create unnecessary delays and costs, and
inhibit the company's ability to act quickly in negotiating and closing on
transactions involving a newly authorized series of preferred stock. Under the
Amendment and Restatement, the Board of Directors can from time to time create,
issue and sell one or more new series of preferred stock of the company without
further shareholder action.
EFFECT OF THE PROPOSAL/ADVANTAGES AND DISADVANTAGES
The Amendment and Restatement will permit our Board of Directors from time
to time to authorize and create the rights and preferences of one or more series
of preferred stock without the necessity and related costs and delays of either
calling a special shareholders' meeting or waiting for the regularly scheduled
annual meeting of shareholders in order to authorize and create such new series
of preferred stock. Our Board believes that eliminating such costs and delays
benefits the company in its ability to proceed quickly with opportunities
connected with the issuance of preferred stock.
The Board of Directors may authorize, issue and sell one or more new series
of preferred stock that has rights and preferences superior to that of the
common stock, or which could dilute the holdings of the common shareholders if
the preferred stock is convertible into common stock. The Board would not
require shareholder approval to create such superior rights and preferences.
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SECTION 903 OF THE CALIFORNIA CORPORATIONS CODE
Section 903 of the California Corporations Code permits the amendment of a
corporation's articles of incorporation to allow for an amendment or restatement
of the articles of incorporation so long as the holders of at least a majority
of the issued and outstanding shares entitled to vote on the action, approve the
action. In this instance, the shareholders entitled to vote are the common
shareholders. A majority of such shareholders voted in favor of the action.
EFFECTIVE DATE
The Amended and Restated Articles of Incorporation will become effective
upon the filing of the Amended and Restated Articles of Incorporation with the
California Secretary of State. Under federal securities laws, we cannot file the
Restated Articles of Incorporation until at least 20 days after mailing this
Information Statement.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth selected information regarding the
beneficial ownership of the company's common stock computed as of September 30,
2004, by: each of our "Named Executive Officers"; each of our directors; each
person known to us to own beneficially more than 5% of any class of our
securities; and the group comprised of our current directors and executive
officers. The term "named executive officer" includes the Chief Executive
Officer and the Chief Financial Officer. We believe that each individual or
entity named has sole investment and voting power with respect to shares of
common stock indicated as beneficially owned by them, subject to community
property laws where applicable, and except where otherwise noted. Unless
otherwise indicated, the address of each shareholder is 501 Fourth Street, Santa
Rosa, California 95401. Beneficial ownership including the number and percentage
of shares owned is determined in accordance with Rule 13d-3 and 13d-5 under the
Securities Exchange Act of 1934 (the "Exchange Act") and is generally determined
by voting power and/or investment power with respect to securities.
COMMON STOCK
(VOTING)
NAME AND ADDRESS OF BENEFICIAL OWNERS, --------------------------------
DIRECTORS AND NAMED EXECUTIVE OFFICERS AMOUNT %
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Steven M. Schneider (1) 14,781,214 39.8%
Chief Executive Officer and Director
Gary Starr (2) 5,185,081 17.6%
Chairman of the Board
Renay Cude 343,758 *
Secretary and Director
William R. Hartman 232,669 *
Chief Financial Officer
Louis Auletta 27,950 *
Director
Guy Fieri 15,730 *
Director
Daka Development Ltd. (3) 4,970,470 17.3%
Fusion Capital Fund II, LLC (4) 3,000,000 11.9%
Jeff Banks (5) 3,200,000 12.6%
Ridgewood ZAP LLC (6) 2,704,287 9.9%
Mercatus & Partners, Ltd (7) 2,941,176 11.6%
Directors and Executive Officers,
as a group (6 members) 20,586,402 57.6%
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(1) Includes 11,670,104 shares of common stock issuable upon the exercise of
various warrants and 211,110 shares of stock upon the exercise of stock
options.
(2) Includes 3,817,535 shares of common stock issuable upon the exercise of
various warrants and 327,778 shares of stock upon the exercise of stock
options.
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(3) The address for Daka Development is Unit C 8/F Leroy Plaza, 15 Cheung Shun
Street, Chung Sha Wan Kin, Hong Kong.
(4) Includes 2,500,000 warrants to purchase common stock at an average exercise
of $3.70 per share, expiring on or about November 1, 2009. Pursuant to the
terms of the warrant, Fusion Capital is not entitled to exercise the
warrants to the extent such exercise would cause the aggregate number of
shares of common stock beneficially owned by the Fusion Capital to exceed
9.9% of the outstanding shares of the common stock following such exercise.
The address for Fusion Capital is 222 Merchandise Mart Plaza, Suite 9-112,
Chicago, IL 60654.
(5) Jeffrey and Karen Banks are Trustees of the Banks Living Trust, and
exercise voting and disposition power over these shares.
(6) Includes 1,989,000 shares of common stock issuable upon the exercise of
certain warrants. Robert Swanson exercises voting and investment control
over Ridgewood ZAP LLC. The address for Ridgewood ZAP LLC, is 947 Linwood
Avenue, Ridgewood, New Jersey, 07450.
(7) Stock was provided as collateral for a working capital loan, which did not
fund. In December 2003, the shareholder reported to the Company that the
stock certificates were lost which has been reported to the transfer agent.
The stock certificates have not been cancelled as of September 30, 2004.
Dwight Parscale exercises voting and investment control over these shares.
The address for Mercatus & Partners is 188 Green Lane, Northwood,
Middlesex, United Kingdom.
INTERESTS OF CERTAIN PERSONS IN OR IN OPPOSITION TO THE MATTERS TO BE ACTED UPON
No director, executive officer, or any associate thereof, or any other
person has any interest, direct or indirect, by security holdings or otherwise,
in the Amended and Restated Certificate of Incorporation referenced herein which
is not shared by the majority of the shareholders of the company.
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act and must file reports, proxy statements and other information with the
Securities and Exchange Commission. The reports, information statements and
other information we file with the Commission can be inspected and copied at the
Commission Public Reference Room, 450 Fifth Street, N.W. Washington, D.C. 20549.
You may obtain information on the operation of the Public Reference Room by
calling the SEC at (800) SEC-0330. The Commission also maintains a Web site
(http://www.sec.gov) that contains reports, proxy, and information statements
and other information regarding registrants, like us, which file electronically
with the Commission.
SIGNATURE
Pursuant to the requirements of the Exchange Act of 1934, as amended, the
Registrant has duly caused this Information Statement to be signed on its behalf
by the undersigned hereunto authorized.
By Order of the Board of Directors
/s/ Steven M. Schneider
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Steven M. Schneider,
Chief Executive Officer
November 15, 2004
Santa Rosa, California
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ATTACHMENT 1
RESOLUTIONS APPROVED ON SEPTEMBER 28, 2004
BOARD OF DIRECTORS
RESOLVED, that the Corporation be and hereby is authorized to create two
classes of Stock as follows: Common Stock and Preferred Stock; that the
Corporation shall have authority to authorize and issue 100,000,000 shares
of Common Stock, entitling the holder of such stock to one vote per share;
and the Corporation shall have authority to authorize and issue 50,000,000
shares of Preferred Stock which may be divided and issued from time to time
in one or more series pursuant to a resolution or resolutions of the Board
of Directors providing for such issue (authority to do so being hereby
expressly vested in the Board of Directors); that the Board of Directors is
further authorized, subject to limitations prescribed by law, to fix the
designations, determinations, powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, of any wholly unissued
series of Preferred Stock, including without limitation authority to fix by
resolution or resolutions the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption, redemption price or
prices, and liquidation preferences of any such series, and the number of
shares constituting any such series and the designation and determination
thereof, or any of the foregoing; that the Board of Directors is further
authorized to increase (but not above the total number of authorized shares
of the class) or decrease (but not below the number of shares of any such
series then outstanding) the number of shares of any series previously
designated, the number of which was fixed by it, subsequent to the issuance
of shares of such series then outstanding, subject to the powers,
preferences and rights, and the qualifications, limitations and
restrictions thereof stated in the Articles of Incorporation as amended or
the resolution of the Board of Directors originally fixing the number of
shares of such series.
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ATTACHMENT 2
VOTE OF THE SHAREHOLDERS BY WRITTEN CONSENT
WHEREAS, it is deemed to be in the best interests of the Corporation and
its Shareholders that the Articles of Incorporation be amended and restated
follows:
"ARTICLE I: NAME
The name of the corporation is ZAP.
ARTICLE II: PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the California Corporations Code
other than, the banking business, the trust company business, or the practice of
a profession permitted to be incorporated by the California Corporations Code.
ARTICLE III: AUTHORIZATION OF SHARES
The Corporation shall have authority to issue shares as follows:
1. Common Stock. The Corporation may issue 100,000,000 shares of Common
Stock. Each share of Common Stock shall entitle the holder thereof to one (1)
vote on each matter submitted to a vote of the shareholders.
2. Preferred Stock. The Corporation may issue 50,000,000 shares of
Preferred Stock, which may be divided and issued from time to time in one or
more series pursuant to a resolution or resolutions of the Board of Directors
providing for such issue (authority to do so being hereby expressly vested in
the Board of Directors). The Board of Directors is further authorized, subject
to limitations prescribed by law, to fix the designations, determinations,
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, of any wholly unissued series of Preferred Stock,
including without limitation authority to fix by resolution or resolutions the
dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption, redemption price or prices, and liquidation preferences of
any such series, and the number of shares constituting any such series and the
designation thereof, or any of the foregoing.
The Board of Directors is further authorized to increase (but not above the
total number of authorized shares of the class) or decrease (but not below the
number of shares of any such series then outstanding) the number of shares of
any series previously designated, the number of which was fixed by it,
subsequent to the issuance of shares of such series then outstanding, subject to
the powers, preferences and rights, and the qualifications, limitations and
restrictions thereof stated in the Articles of Incorporation or the resolution
of the Board of Directors originally fixing the number of shares of such series.
ARTICLE IV: BYLAWS
The Board of Directors of the corporation shall have the power to adopt,
amend or repeal Bylaws of the corporation.
ARTICLE V: ELECTION OF DIRECTORS
Election of directors need not be by written ballot unless required by law.
ARTICLE VI: LIABILITY OF DIRECTORS
(A) Limitation of Directors' Liability. The liability of the directors of
the Corporation for monetary damages shall be eliminated to the fullest extent
permissible under California law.
(B) Indemnification of Corporate Agents. The Corporation is authorized to
provide indemnification of agents (as defined in Section 317 of the California
Corporations Code) to the fullest extent permissible under California law.
(C) Repeal or Modification. Any amendment or repeal or modification of the
foregoing provisions of this Article VI by the shareholders of the Corporation
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification."
NOW, THEREFORE BE IT VOTED, that the foregoing amendment and restatement
text is hereby approved, adopted and ratified in its entirety.
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ATTACHMENT 3
The Articles of Incorporation, as amended, of this corporation shall be
amended and restated in full as follows:
ARTICLE I: NAME
The name of the corporation is ZAP.
ARTICLE II: PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California other than, the banking business, the trust company business, or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE III: AUTHORIZATION OF SHARES
The Corporation shall have authority to issue shares as follows:
1. Common Stock. The Corporation may issue 100,000,000 shares of Common
Stock. Each share of Common Stock shall entitle the holder thereof to one (1)
vote on each matter submitted to a vote of the stockholders.
2. Preferred Stock. The Corporation may issue 50,000,000 shares of
Preferred Stock, which may be divided and issued from time to time in one or
more series pursuant to a resolution or resolutions of the Board of Directors
providing for such issue (authority to do so being hereby expressly vested in
the Board of Directors). The Board of Directors is further authorized, subject
to limitations prescribed by law, to fix the designations, determinations,
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, of any wholly unissued series of Preferred Stock,
including without limitation authority to fix by resolution or resolutions the
dividend rights, dividend rate, conversion rights, voting rights, rights and
terms of redemption, redemption price or prices, and liquidation preferences of
any such series, and the number of shares constituting any such series and the
designation thereof, or any of the foregoing.
The Board of Directors is further authorized to increase (but not above the
total number of authorized shares of the class) or decrease (but not below the
number of shares of any such series then outstanding) the number of shares of
any series previously designated, the number of which was fixed by it,
subsequent to the issuance of shares of such series then outstanding, subject to
the powers, preferences and rights, and the qualifications, limitations and
restrictions thereof stated in the Articles of Incorporation or the resolution
of the Board of Directors originally fixing the number of shares of such series.
ARTICLE IV: BYLAWS
The Board of Directors of the corporation shall have the power to adopt,
amend or repeal Bylaws of the corporation.
ARTICLE V: ELECTION OF DIRECTORS
Election of directors need not be by written ballot unless required by law.
ARTICLE VI: LIABILITY OF DIRECTORS
(A) Limitation of Directors' Liability. The liability of the directors of
the Corporation for monetary damages shall be eliminated to the fullest extent
permissible under California law.
(B) Indemnification of Corporate Agents. The Corporation is authorized to
provide indemnification of agents (as defined in Section 317 of the California
Corporations Code) to the fullest extent permissible under California law.
(C) Repeal or Modification. Any amendment or repeal or modification of the
foregoing provisions of this Article VI by the shareholders of the Corporation
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification."
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