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As filed with the Securities and Exchange Commission on February 5, 2001
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ULTRA MOTORCYCLE COMPANY
(Exact name of registrant as specified in its charter)
CALIFORNIA 33-0140149
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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3810 WACKER DRIVE
MIRA LOMA, CALIFORNIA 91752
(Address of Principal Executive Offices)
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ULTRA MOTORCYCLE COMPANY
2000 STOCK OPTION PLAN
(Full title of the plan)
ANNE TODD
CONTROLLER
ULTRA MOTORCYCLE COMPANY
3810 WACKER DRIVE
MIRA LOMA, CALIFORNIA 91752
(Name and address of agent for service)
(909) 360-2500
(Telephone number, including area code,
of agent for service)
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Copies of communications to:
HOWARD J. UNTERBERGER, ESQ.
CHRISTINA LYCOYANNIS, ESQ.
MILLER & HOLGUIN
1801 CENTURY PARK EAST
SEVENTH FLOOR
LOS ANGELES, CALIFORNIA 90067
(310) 556-1990
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED OFFERING PRICE PER SHARE PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock 1,000,000 $.21875(2) $218,750(2) $54.68(2)
shares(1)(4)
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Options to purchase 650,000 (3) (3) (3)
Common Stock options(3)(4)
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</TABLE>
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(1) These shares underlie options issuable under the Ultra Motorcycle Company
2000 Stock Option Plan (the "Plan"). The number of shares of Common Stock
being registered is the maximum aggregate number of shares presently
issuable upon exercise of options issued under the Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h) promulgated under the
Securities Act of 1933, as amended (the "Securities Act"). The price per
share and aggregate offering price are based upon the average of the high
and low price of the Company's Common Stock as reported on February 2, 2001
on the OTC Bulletin Board.
(3) These are the remaining options that are issuable under the Plan. No
additional fee for registration of these options is required by virtue of
Rule 457(g).
(4) The registration statement also includes an indeterminable number of
additional shares of Common Stock and options that may become issuable
under the Plan by virtue of anti-dilution adjustment provisions of the
Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
need not be filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"), but will be sent or given to employees as specified by
Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Ultra Motorcycle Company, a California
corporation (the "Company") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference into this Registration Statement:
(a) The Company's annual report on Form 10-KSB for the year ended December
31, 1999.
(b) The Company's quarterly report on Form 10-QSB for the quarters ended
March 31, 2000, June 30, 2000 and September 30, 2000.
(c) The Company's proxy statement filed in final form with the Commission
on November 9, 2000 in connection with the Company's annual meeting of
shareholders held on December 15, 2000.
(d) The Company's report on Form 8-K dated January 18, 2000 and filed as of
January 26, 2000.
(e) The Company's report on Form 8-K dated January 31, 2000 and filed as of
February 15, 2000.
(f) The Company's report on Form 8-K dated April 4, 2000 and filed as of
April 7, 2000.
(g) The Company's report on Form 8-K dated January 17, 2001 and filed as of
February 2, 2001.
(h) The description of the Company's class of Common Stock which is
registered under Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as set forth in Item 1 of the Company's registration
statement on Form 8-A filed under the Exchange Act on March 17, 1987
(incorporating by reference the text under "Description of Securities" in the
Company's Form S-18 registration statement No. 33-9879-LA filed on October 30,
1986, which is also incorporated herein by this reference), and updated by (i)
footnote 8 to the Consolidated Financial Statements in the Company's Form 10-QSB
report for the quarter ended September 30, 1996; (ii) paragraph one of Item 2,
Part II ("Changes in Securities"), of the Company's Form 10-QSB report for the
quarter ended September 30, 1997; and (iii) footnote 11 to the Consolidated
Financial Statements in the Company's Form 10-QSB report for the quarter ended
March 31, 1998.
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All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this registration statement and
prior to the filing of a post-effective amendment to this registration statement
which indicates that all securities offered hereunder have been sold, or which
deregisters all securities then remaining unsold under this registration
statement, shall be deemed to be incorporated by reference in the registration
statement and to be a part hereof from the date of filing of 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 Company's Bylaws and Section 317 of the California General Corporation
Law provide for indemnification of directors and officers against certain
liabilities. Officers and directors of the Company are indemnified generally
against expenses, judgments, fines and other amounts actually and reasonably
incurred in connection with actions, suits or proceedings, whether civil or
criminal, provided that it is determined that they acted in good faith and in a
manner they reasonably believed to be in the best interests of the Company, and,
in any criminal matter, had reasonable cause to believe that their conduct was
not unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
4.1 Articles of Incorporation, as amended, of Registrant (formerly
known as HDL Communications)(1)
4.2 Certificate of Amendment of Articles of Incorporation dated June
21, 1996(2)
4.3 Certificate of Correction of Certificate of Amendment of
Articles of Incorporation dated July 25, 1997(3)
4.4 Certificate of Determination of Series B Convertible Preferred
Stock(3)
4.5 Certificate of Determination of Series C Convertible Preferred
Stock(4)
4.6 Certificate of Determination of Series D Convertible Preferred
Stock(5)
4.7 Bylaws, as amended, of Registrant(1)
4.8 Form of Certificate of Common Stock of Registrant(6)
4.9 2000 Ultra Motorcycle Company Stock Option Plan(7)
5.1 Form of Opinion of Miller & Holguin as to the legality of the
securities being registered
23.1 Consent of Singer Lewak Greenbaum & Goldstein LLP
23.2 Consent of Miller & Holguin (included in its opinion filed as
Exhibit 5.1)
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(1) Previously filed as an exhibit to Registrant's registration statement on
Form SB-2 (No. 33-92294) filed with the Commission on May 31, 1995.
(2) Previously filed as an exhibit to Registrant's Form 10-KSB report for
the fiscal year ended December 31, 1996 filed with the Commission on
April 15, 1997.
(3) Previously filed as an exhibit to Registrant's Form 10-QSB report for
the fiscal quarter ended September 30, 1997 filed with the Commission on
November 14, 1997
(4) Previously filed as an exhibit to Registrant's Form 10-QSB report for
fiscal quarter ended March 30, 1998 filed with the Commission on May 15,
1998.
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(5) Previously filed as an exhibit to Registrant's registration statement on
Form S-3 (No. 333-72167) as filed with the Commission on February 11,
1999.
(6) Previously filed as an exhibit to Registrant's Form 10-KSB report for
the fiscal year ended December 31, 1998 filed with the Commission on
April 15, 1999.
(7) Previously filed as Appendix B to Registrant's proxy statement filed in
final form with the Commission on November 9, 2000 in connection with
the Company's annual meeting of shareholders held on December 15, 2000.
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ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933 (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of such
registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in such registration statement. Notwithstanding
the foregoing, any increase or decrease in
volume of securities offered (if the total
dollar value of securities offered would not
exceed that which was registered) and any
deviation from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b)
promulgated under the Securities Act if, in the
aggregate, the changes in volume and price
represent no more than a 20% change in the
maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in
such effective registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in such registration statement or any
material change to such information in such
registration statement;
Provided, however, that paragraphs (1)(a)(i) and
(1)(a)(ii) do not apply if the information required to
be included in a post-effective amendment by those
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paragraphs is contained in periodic reports filed with
or furnished to the Securities and Exchange Commission
by the registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by
reference in such 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 herein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(h) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Mira Loma, State of California, on the 5th day of
February, 2001.
ULTRA MOTORCYCLE COMPANY
By: /s/ Harold L. Collins
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Harold L. Collins
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Harold L. Collins President and Chief Executive Officer February 5, 2001
----------------------------------- (Principal Executive Officer) and
Harold L. Collins Director
/s/ Anne Todd Controller (Principal Financial and February 5, 2001
----------------------------------- Accounting Officer)
Anne Todd
/s/ John Russell Director February 5, 2001
-----------------------------------
John Russell
/s/ Humbert Powell Director February 5, 2001
-----------------------------------
Humbert Powell
/s/ Kenneth Schwartz Director February 5, 2001
-----------------------------------
Kenneth Schwartz
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4.1 Articles of Incorporation, as amended, of Registrant
(formerly known as HDL Communications)(1)
4.2 Certificate of Amendment of Articles of Incorporation dated
June 21, 1996(2)
4.3 Certificate of Correction of Certificate of Amendment of
Articles of Incorporation dated July 25, 1997(3)
4.4 Certificate of Determination of Series B Convertible
Preferred Stock(3)
4.5 Certificate of Determination of Series C Convertible
Preferred Stock(4)
4.6 Certificate of Determination of Series D Convertible
Preferred Stock(5)
4.7 Bylaws, as amended, of Registrant(1)
4.8 Form of Certificate of Common Stock of Registrant(6)
4.9 2000 Ultra Motorcycle Company Stock Option Plan(7)
5.1 Form of Opinion of Miller & Holguin as to the legality of
the securities being registered
23.1 Consent of Singer Lewak Greenbaum & Goldstein LLP
23.2 Consent of Miller & Holguin (included in its opinion filed
as Exhibit 5.1)
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(1) Previously filed as an exhibit to Registrant's registration statement on
Form SB-2 (No. 33-92294) filed with the Commission on May 31, 1995.
(2) Previously filed as an exhibit to Registrant's Form 10-KSB report for the
fiscal year ended December 31, 1996 filed with the Commission on April 15,
1997.
(3) Previously filed as an exhibit to Registrant's Form 10-QSB report for the
fiscal quarter ended September 30, 1997 filed with the Commission on
November 14, 1997
(4) Previously filed as an exhibit to Registrant's Form 10-QSB report for
fiscal quarter ended March 30, 1998 filed with the Commission on May 15,
1998.
(5) Previously filed as an exhibit to Registrant's registration statement on
Form S-3 (No. 333-72167) as filed with the Commission on February 11, 1999.
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(6) Previously filed as an exhibit to Registrant's Form 10-KSB report for the
fiscal year ended December 31, 1998 filed with the Commission on April 15,
1999.
(7) Previously filed as Appendix B to Registrant's proxy statement filed in
final form with the Commission on November 9, 2000 in connection with the
Company's annual meeting of shareholders held on December 15, 2000.
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EXHIBIT 5.1
[MILLER & HOLGUIN LETTERHEAD]
February 5, 2001
Ultra Motorcycle Company
3810 Wacker Drive
Mira Loma, CA 91752
Re: Ultra Motorcycle Company (the "Company") --
Registration Statement on Form S-8
-------------------------------------------
Ladies and Gentlemen:
Our opinion has been requested in connection with the registration
statement on Form S-8 with which this opinion is being filed as an exhibit (the
"Registration Statement") relating to the issuance of up to 1,000,000 shares
(the "Option Shares") of the Company's common stock, no par value, and 650,000
options (the "Options") pursuant to the Ultra Motorcycle Company 2000 Stock
Option Plan (the "Plan").
We have examined a copy of the Plan and such corporate records and other
documents and have made such examination of law as we have deemed relevant.
Based on and subject to the above, it is our opinion that the Options and
Option Shares, when issued pursuant to the terms of the Plan, will be duly
authorized, legally issued, fully paid and non-assessable.
We are members of the Bar of the State of California, and we do not express
any opinion herein concerning any law other than the law of the State of
California and the federal law of the United States.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
MILLER & HOLGUIN
By: /s/ Miller & Holguin
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS
[CONTACT SINGER LEWAK]