As filed with the Securities and Exchange Commission on December 14, 2004
Registration Number 333-118574
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8/A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
(Amendment No. 1)
ADVANCED BATTERY TECHNOLOGIES, INC.
-------------------------------------------------
(Exact name of Registrant as specified in Charter)
Delaware 22-2497491
------------------------------------------------------------------
(State of Incorporation) I.R.S. Employer I.D. Number)
425 Washington Blvd., Ste. 2205, Jersey City, NJ 07310
-------------------------------------------------------
(Address of Principal Executive Offices)
2004 EQUITY INCENTIVE PLAN
--------------------------
(Full Title of Plan)
JOHN C. LEO
Advanced Battery Technologies, Inc.
100 Wall Street, 15th Floor
New York, NY 10005
(212) 232-0120 ext. 221
-------------------------------------------------------
(Name, Address and Telephone Number of Agent for Service)
Copy to:
ROBERT BRANTL, ESQ.
322 Fourth Street
Brooklyn, NY 11215
(718) 768-6045
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount to Offering Aggregate Amount of
to be be Price per Offering Registration
Registered Registered (1) per Share (2) Price (2) Fee
---------------------------------------------------------------------------
Common Stock, 5,000,000 shares $3.25 $16,250,000 $2,058.88
$.001 par value
---------------------------------------------------------------------------
(1) This Registration Statement also covers an indeterminable number of
additional shares that may be issued as a result of an adjustment in the
shares in the event of a stock split, stock dividend or similar capital
adjustment, as required by the Plan.
(2) The price stated is estimated solely for purposes of calculation of the
registration fee and is the product resulting from multiplying 5,000,000
shares by $3.25, the closing price of shares of the Common Stock on the
OTC Bulletin Board on August 25, 2004.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Advanced Battery Technologies, Inc. is incorporating by reference the
following documents previously filed with the Securities and Exchange
Commission:
(a) Advanced Battery Technologies's Annual Report on Form 10-KSB for the
fiscal year ended June 30, 2003;
(b) Advanced Battery Technologies's Quarterly Report on Form 10-QSB for
the fiscal quarter ended September 30, 2003;
(c) Advanced Battery Technologies's Quarterly Report on Form 10-QSB for the
fiscal quarter ended December 31, 2003;
(d) Advanced Battery Technologies's Quarterly Report on Form 10-QSB for the
fiscal quarter ended March 31, 2004;
(e) Advanced Battery Technologies's Quarterly Report on Form 10-QSB for the
fiscal quarter ended June 30, 2004;
(f) Advanced Battery Technologies's Quarterly Report on Form 10-QSB for the
fiscal quarter ended September 30, 2004;
(g) Advanced Battery Technologies's Current Report on Form 8-K dated May 6,
2004;
(h) the description of Advanced Battery Technologies's Common Stock
contained in its Registration Statement on Form S-1 (No. 29466310).
Advanced Battery Technologies is also incorporating by reference all
documents hereafter filed by Advanced Battery Technologies pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Robert Brantl, Esq., counsel to Advanced Battery Technologies, has
passed upon the validity of the shares registered pursuant to this
Registration Statement. Mr. Brantl holds no interest in the securities of
Advanced Battery Technologies.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation to provide indemnification to a director, officer,
employee or agent of the corporation, including attorneys' fees, judgments,
fines and amounts paid in settlement, actually and reasonably incurred by him
in connection with such action, suit or proceeding, if such party acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful as determined in accordance with the statute, and except that with
respect to any action which results in a judgment against the person and in
favor of the corporation the corporation may not indemnify unless a court
determines that the person is fairly and reasonably entitled to the
indemnification. Section 145 further provides that indemnification shall be
provided if the party in question is successful on the merits.
-2-
Our certificate of incorporation provides that the corporation shall
indemnify any and all persons whom it shall have power to indemnity under the
General Corporation Law of the State of Delaware from and against any and all
of the expenses, liabilities or other matters referred to in or covered by of
the General Corporation Law of the State of Delaware, both as to action in his
official capacity and as to action in another capacity while holding such
officer, and shall continue as to a person who has ceased to be director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 2004 Equity Incentive Plan
5 Opinion of Robert Brantl, Esq.
23.1 Consent of Rosenberg Rich Baker Berman & Co., C.P.A., P.A.
23.2 Consent of Robert Brantl, Esq. is contained in his opinion, filed as
Exhibit 5.
Item 9. Undertakings.
Advanced Battery Technologies 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 of 1933, 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;
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) 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.
-3-
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of Advanced Battery Technologies pursuant to the provisions of the
Delaware General Corporation Law or otherwise, Advanced Battery Technologies
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Advanced Battery
Technologies of expenses incurred or paid by a director, officer or
controlling person of Advanced Battery Technologies 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,
Advanced Battery Technologies 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 Act and will be governed by the
final adjudication of such issue.
REOFFER PROSPECTUS
ADVANCED BATTERY TECHNOLOGIES, INC.
5,000,000 Shares of Common Stock
The shares are being offered by persons who are officers, directors or
otherwise control persons of Advanced Battery Technologies, Inc. They
acquired the shares from Advanced Battery Technologies, either as the
recipients of grants of stock or by exercising stock options issued to them by
Advanced Battery Technologies.
The selling shareholders intend to sell the shares into the public market
from time to time. The shareholders will negotiate with the market makers
for Advanced Battery Technologies' common stock to determine the prices
for each sale. They expect each sale price to be near to the market price at
the time of the sale.
Advanced Battery Technologies' common stock is listed for trading on the
OTC Bulletin Board under the trading symbol "ABAT.OB."
PURCHASE OF ADVANCED BATTERY TECHNOLOGIES COMMON STOCK INVOLVES
SUBSTANTIAL RISK. PLEASE SEE "RISK FACTORS," WHICH BEGINS ON PAGE 2.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary
is a criminal offense.
Advanced Battery Technologies, Inc.
425 Washington Blvd., Suite 2205
Jersey City, NJ 07310
212-232-0120 x. 221
The date of this prospectus is December 14, 2004
TABLE OF CONTENTS
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . .-2-
SELLING SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . .-6-
OTHER AVAILABLE INFORMATION. . . . . . . . . . . . . . . . . .-7-
INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . .-8-
RISK FACTORS
You should carefully consider the risks described below before buying
our common stock. If any of the risks described below actually occurs, that
event could cause the trading price of our common stock to decline, and you
could lose all or part of your investment.
I. RISKS ATTENDANT TO OUR BUSINESS
WE MAY BE UNABLE TO GAIN A SUBSTANTIAL SHARE OF THE MARKET FOR BATTERIES.
We have only one product line, rechargeable polymer lithium-ion batter
ies. We first marketed our batteries in the Spring of 2004, and have reported
$1,085,058 in revenue for the first nine months of 2004. There are many
companies, both large and small, involved in the market for rechargeable
batteries. It will be difficult for us to establish a reputation in the
market so that manufacturers chose to use our batteries rather than those of
our competitors. Unless we are able to expand our sales volume significantly,
we will not be able to operate efficiently and our business will fail.
WE MAY BE UNABLE TO SATISFY OUR CURRENT DEBTS.
Our current liabilities are far in excess of the book value of our
current assets. At September 30, 2004 our current liabilities totaled
$2,036,687 and our current assets totaled $662,238, only $188,484 of which
were liquid assets. We are engaged in efforts to negotiate compromises and
extensions with our major creditors. If those negotiations are unsuccessful,
however, our business may fail.
WE LACK SUFFICIENT CAPITAL TO FULLY CARRY OUT OUR BUSINESS PLAN.
In order to make our operations cost-efficient, it is necessary that we
expand our operations. At the present time, however, our capital resources
are sparse. In order to expand our operations, we will need an infusion of
capital to fund the build-out of our manufacturing facility and an accumulation
of inventory. We are engaged in discussions with potential sources of
capital, and have recently obtained a $2.4 Million loan. It is not clear
whether the proceeds of that loan will be sufficient to permit us to expand to
an efficient operating point.
OUR BUSINESS AND GROWTH WILL SUFFER IF WE ARE UNABLE TO HIRE AND RETAIN
KEY PERSONNEL THAT ARE IN HIGH DEMAND.
-2-
Our future success depends on our ability to attract and retain highly
skilled engineers, technical, marketing and customer service personnel,
especially qualified personnel for our operations in China. Qualified
individuals are in high demand in China, and there are insufficient experienced
personnel to fill the demand. Therefore we may not be able to successfully
attract or retain the personnel we need to succeed.
WE MAY NOT BE ABLE TO ADEQUATELY PROTECT OUR INTELLECTUAL PROPERTY,
WHICH COULD CAUSE US TO BE LESS COMPETITIVE.
We are continuously designing and developing new technology. We rely on
a combination of copyright and trade secret laws and restrictions on
disclosure to protect our intellectual property rights. Unauthorized use of
our technology could damage our ability to compete effectively. In China,
monitoring unauthorized use of our products is difficult and costly. In
addition, intellectual property law in China is less developed than in the
United States and historically China has not protected intellectual property
to the same extent as it is protected in other jurisdictions, such as the
United States. Any resort to litigation to enforce our intellectual property
rights could result in substantial costs and diversion of our resources, and
might be unsuccessful.
WE MAY HAVE DIFFICULTY ESTABLISHING ADEQUATE MANAGEMENT AND FINANCIAL
CONTROLS IN CHINA.
The Peoples Republic of China has only recently begun to adopt the
management and financial reporting concepts and practices that investors in
the United States are familiar with. We may have difficulty in hiring and
retaining employees in China who have the experience necessary to implement
the kind of management and financial controls that are expected of a United
States public company. If we cannot establish such controls, we may
experience difficulty in collecting financial data and preparing financial
statements, books of account and corporate records and instituting business
practices that meet U.S. standards.
CAPITAL OUTFLOW POLICIES IN CHINA MAY HAMPER OUR ABILITY TO PAY
DIVIDENDS TO SHAREHOLDERS IN THE UNITED STATES.
The Peoples Republic of China has adopted currency and capital transfer
regulations. These regulations require that we comply with complex regulations
for the movement of capital. Although Chinese governmental policies were
introduced in 1996 to allow the convertibility of RMB into foreign currency
for current account items, conversion of RMB into foreign exchange for capital
items, such as foreign direct investment, loans or securities, requires the
approval of the State Administration of Foreign Exchange. We may be unable to
obtain all of the required conversion approvals for our operations, and
Chinese regulatory authorities may impose greater restrictions on the conver-
tibility of the RMB in the future. Because most of our future revenues will be
in RMB, any inability to obtain the requisite approvals or any future
restrictions on currency exchanges will limit our ability to fund our business
activities outside China or to pay dividends to our shareholders.
WE HAVE LIMITED BUSINESS INSURANCE COVERAGE.
The insurance industry in China is still at an early stage of develop
ment. Insurance companies in China offer limited business insurance products,
and do not, to our knowledge, offer business liability insurance. As a result,
we do not have any business liability insurance coverage for our operations.
Moreover, while business disruption insurance is available, we have determined
that the risks of disruption and cost of the insurance are such that we do not
require it at this time. Any business disruption, litigation or natural
disaster might result in substantial costs and diversion of resources.
-3-
TRADE BARRIERS AND TAXES MAY HAVE AN ADVERSE EFFECT ON OUR BUSINESS AND
OPERATIONS.
We may experience barriers to conducting business and trade in our
targeted markets in the form of delayed customs clearances, customs duties and
tariffs. In addition, we may be subject to repatriation taxes levied upon the
exchange of income from local currency into foreign currency, as well as
substantial taxes of profits, revenues, assets or payroll, as well as value-
added tax. The markets in which we plan to operate may impose onerous and
unpredictable duties, tariffs and taxes on our business and products. Any of
these barriers and taxes could have an adverse effect on our finances and
operations.
CURRENCY FLUCTUATIONS MAY ADVERSELY AFFECT OUR BUSINESS.
We generate revenues and incur expenses and liabilities in Chinese RMB.
However we report our financial results in the United States in U.S. Dollars.
As a result, we are subject to the effects of exchange rate fluctuations
between these currencies. Recently, there have been suggestions made to the
Chinese government that it should adjust the exchange rate and end the linkage
that in recent years has held the RMB-U.S. dollar exchange rate constant. If
the RMB exchange rate is adjusted or is allowed to float freely against the
U.S. dollar, our revenues, which are denominated in RMB, may fluctuate
significantly in U.S. dollar terms. We have not entered into agreements or
purchased instruments to hedge our exchange rate risks.
II. RISKS ATTENDANT TO OUR MANAGEMENT
OUR BUSINESS DEVELOPMENT WOULD BE HINDERED IF WE LOST THE SERVICES OF
OUR CHAIRMAN.
Zhiguo Fu is the Chief Executive Officer of Advanced Battery Technolo
gies and of its operating subsidiary, HeilongJiang ZhongQiang Power Tech Co,
Ltd. Mr. Fu is responsible for strategizing not only our business plan but
also the means of financing it. Mr. Fu has also, from time to time, provided
his personal funds to meet the working capital needs of HeilongJiang
ZhongQiang Power Tech Co, Ltd. If Mr. Fu were to leave Advanced Battery
Technologies or become unable to fulfill his responsibilities, our business
would be imperiled. At the very least, there would be a delay in the
development of Advanced Battery Technologies until a suitable replacement for
Mr. Fu could be retained.
ADVANCED BATTERY TECHNOLOGIES IS NOT LIKELY TO HOLD ANNUAL SHAREHOLDER
MEETINGS IN THE NEXT FEW YEARS.
Delaware corporation law provides that members of the board of
directors retain authority to act until they are removed or replaced at a
meeting of the shareholders. A shareholder may petition the Delaware Court
of Chancery to direct that a shareholders meeting be held. But absent such
a legal action, the board has no obligation to call a shareholders meeting.
Unless a shareholders meeting is held, the existing directors elect
directors to fill any vacancy that occurs on the board of directors. The
shareholders, therefore, have no control over the constitution of the board
of directors, unless a shareholders meeting is held.
Since it became a public company, Advanced Battery Technologies has
never held an annual meeting of shareholders. Management does not expect
-4-
to hold annual meetings of shareholders in the next few years, due to the
expense involved. The current members of the Board of Directors were
appointed to that position by the current and previous directors. If other
directors are added to the Board in the future, it is likely that the
current directors will appoint them. As a result, the shareholders of
Advanced Battery Technologies will have no effective means of exercising
control over the operations of Advanced Battery Technologies.
RELATED PARTY TRANSACTIONS MAY OCCUR ON TERMS THAT ARE NOT FAVORABLE
TO ADVANCED BATTERY TECHNOLOGIES.
Zhiguo Fu, directly and through his family, controls over 45% of the
outstanding common stock of Advanced Battery Technologies. For the
foreseeable future, therefore, he will control the operations of Advanced
Battery Technologies. Mr. Fu also owns 30% of the outstanding stock of
HeilongJiang ZhongQiang Power Tech Co, Ltd., and was responsible for
structuring the transaction in which Advanced Battery Technologies acquired
its 70% of HeilongJiang ZhongQiang Power Tech Co, Ltd. From time to time,
Mr. Fu has loaned money to HeilongJiang ZhongQiang Power Tech Co, Ltd., and
contributed to its capital, when needed. It is likely that Mr. Fu will
engage in other transactions with Advanced Battery Technologies and/or
HeilongJiang ZhongQiang Power Tech Co, Ltd., including transfers of all or
part of his interest in HeilongJiang ZhongQiang Power Tech Co, Ltd. to
Advanced Battery Technologies. It is unlikely that the Board of Directors
will obtain independent confirmation that the terms of such related party
transactions are fair. If the terms are unfair to Advanced Battery
Technologies, the transactions could harm our operating results.
Your ability to bring an action against us or against our directors,
or to enforce a judgment against us or them, will be limited because we
conduct all of our operations in China and because most of our directors
reside outside of the United States.
We conduct substantially all of our operations in China through our
wholly-owned subsidiary. Most of our directors reside in China and
substantially all of the assets of those persons are located outside of the
United States. As a result, it may be difficult or impossible for you to
bring an action against us or against these individuals in the United
States in the event that you believe that your rights have been infringed
under the securities laws or otherwise. Even if you are successful in
bringing an action of this kind, the laws of the United States and of China
may render you unable to enforce a judgment against our assets or the
assets of our directors.
III. RISKS ATTENDANT TO THE MARKET FOR OUR COMMON STOCK.
THE VOLATILITY OF THE MARKET FOR ADVANCED BATTERY TECHNOLOGIES COMMON
STOCK MAY PREVENT A SHAREHOLDER FROM OBTAINING A FAIR PRICE FOR HIS SHARES.
The common stock of Advanced Battery Technologies at the present time
has only a small number of market makers. As a result, the market price
for our common stock is volatile, at times moving over 20% in one day.
Unless and until the market for our common stock grows and stabilizes, the
common shares you purchase will remain illiquid. A shareholder in Advanced
Battery Technologies who wants to sell his shares, therefore, runs the risk
that at the time he wants to sell, the market price may be much less than
the price he would consider to be fair.
-5-
ADVANCED BATTERY TECHNOLOGIES WILL BE QUOTED ON THE OTC BULLETIN
BOARD FOR THE IMMEDIATE FUTURE.
Advanced Battery Technologies does not meet the eligibility
requirements for listing on the NASDAQ Stock Market. Until we meet those
standards and are accepted into the NASDAQ Stock Market, or unless we are
successful in securing a listing on the American Stock Exchange or some
other exchange, Advanced Battery Technologies common stock will be quoted
only on the OTC Bulletin Board. Such a listing is considered less
prestigious than a NASDAQ Stock Market or an exchange listing, and many
brokerage firms will not recommend Bulletin Board stocks to their clients.
This situation may limit the liquidity of your shares.
ONLY A SMALL PORTION OF THE INVESTMENT COMMUNITY WILL PURCHASE "PENNY
STOCKS" SUCH AS ADVANCED BATTERY TECHNOLOGIES COMMON STOCK.
Advanced Battery Technologies' common stock is defined by the SEC as
a "penny stock" because it trades at a price less than $5.00 per share.
Many brokerage firms will discourage their customers from purchasing penny
stocks, and even more brokerage firms will not recommend a penny stock to
their customers. Most institutional investors will not invest in penny
stocks. In addition, many individual investors will not consider a
purchase of a penny stock due, among other things, to the negative
reputation that attends the penny stock market. As a result of this
widespread disdain for penny stocks, there will be a limited market for
Advanced Battery Technologies's common stock as long as it remains a "penny
stock." This situation may limit the liquidity of your shares.
ISSUANCE OF COMMON STOCK AND EQUIVALENTS BY ADVANCED BATTERY
TECHNOLOGIES MAY DILUTE THE VALUE OF OUTSTANDING SHARES AND REDUCE THE
MARKET PRICE OF OUR COMMON STOCK.
During the past year, Advanced Battery Technologies has made a number
of arrangements with its officers and directors that resulted in shares of
our common stock being issued to them. In addition, we have also from time
to time compensated our professional advisors and others by issuing common
stock to them. Until we have sufficient capital resources that we can
afford to pay cash for all of the services we need, we will continue to
issue stock for these purposes. In addition, we hope to sell equity shares
in order to obtain the funds necessary to accomplish our business plan.
Any or all of these transactions could have the effect of diluting the
value of our outstanding shares. In addition, the market for our shares
may be adversely affected by the issuance of additional shares.
SELLING SHAREHOLDERS
The table below contains information regarding the individuals who
are using this prospectus to offer common shares.
Percentage
Shares Number Shares of Class
Owned of Owned Held
Selling Before Shares After After
Shareholder Position Offering(1) Offered Offering Offering
----------------------------------------------------------------------------
Ming Liu Director 200,000 200,000 0 0%
-6-
OTHER AVAILABLE INFORMATION
Advanced Battery Technologies, Inc. is incorporating into this
prospectus by reference the following documents previously filed with the
Securities and Exchange Commission:
(a) Advanced Battery Technologies' Annual Report on Form 10-KSB for
the fiscal year ended June 30, 2003;
(b) Advanced Battery Technologies' Quarterly Report on Form 10-QSB
for the fiscal quarter ended September 30, 2003;
(c) Advanced Battery Technologies' Quarterly Report on Form 10-QSB
for the fiscal quarter ended December 31, 2003;
(d) Advanced Battery Technologies' Quarterly Report on Form 10-QSB
for the fiscal quarter ended March 31, 2004;
(e) Advanced Battery Technologies' Quarterly Report on Form 10-QSB
for the fiscal quarter ended June 30, 2004;
(f) Advanced Battery Technologies' Quarterly Report on Form 10-QSB
for the fiscal quarter ended September 30, 2004;
(g) Advanced Battery Technologies' Current Report on Form 8-K dated
May 6, 2004;
(h) the description of Advanced Battery Technologies' Common Stock
contained in its Registration Statement on Form S-1 (No.
29466310).
Advanced Battery Technologies is also incorporating into this
prospectus by reference all documents hereafter filed by Advanced Battery
Technologies pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, until the termination of this offering.
Upon written request, Advanced Battery Technologies will provide to
each person, including any beneficial owner, to whom this prospectus is
delivered a copy of any and all information that has been incorporated into
this prospectus by reference. We will provide the information at no cost
to the person who requests it. Any such request should be made to Ming Liu,
Secretary, Advanced Battery Technologies, Inc., 425 Washington Blvd., Suite
2205, Jersey City, NJ 07310.
Advanced Battery Technologies files with the Securities and Exchange
Commission annual, quarterly and current reports, proxy statements and
other information, which may assist you in understanding our company. In
addition, we have filed a registration statement on Form S-8, including
exhibits, with respect to the shares to be sold in the offering.
You may read and copy the registration statement or any reports,
statements or other information that we file at the Commission's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please
call the Commission at 1-800-SEC-0330 for further information on the
operation of the Public Reference Room. Our Commission filings, including
the registration statement, are also available to you on the Commission's
Web site at http://WWW.SEC.GOV.
-7-
INDEMNIFICATION
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation to provide indemnification to a director, officer,
employee or agent of the corporation, including attorneys' fees, judgments,
fines and amounts paid in settlement, actually and reasonably incurred by
him in connection with such action, suit or proceeding, if such party acted
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful as determined in accordance with the statute, and
except that with respect to any action which results in a judgment against
the person and in favor of the corporation the corporation may not indemnify
unless a court determines that the person is fairly and reasonably entitled
to the indemnification. Section 145 further provides that indemnification
shall be provided if the party in question is successful on the merits.
Our certificate of incorporation provides that the corporation shall
indemnify any and all persons whom it shall have power to indemnity under
the General Corporation Law of the State of Delaware from and against any
and all of the expenses, liabilities or other matters referred to in or
covered by of the General Corporation Law of the State of Delaware, both as
to action in his official capacity and as to action in another capacity
while holding such officer, and shall continue as to a person who has
ceased to be director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Insofar as indemnification for liabilities under the Securities Act
of 1933 may be permitted to our directors, officers or controlling persons
pursuant to the foregoing provision or otherwise, we have been advised that
in the opinion of the SEC such indemnification is against public policy as
expressed in that Act and is, therefore, unenforceable.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Advanced
Battery Technologies, Inc. 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 under
signed, thereunto duly authorized, in the City of New York and the State of
New York on the 13th day of December, 2004.
ADVANCED BATTERY TECHNOLOGIES, INC.
By: /s/ Zhiguo Fu
-----------------------------
Zhiguo Fu, Chairman
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on December 13, 2004.
/s/ Zhiguo Fu
---------------------------
Zhiguo Fu, Director
Chief Executive Officer
/s/ Guohua Wan
---------------------------
Guohua Wan, Director
Chief Financial Officer
/s/ Ming Liu
---------------------------
Ming Liu, Director
---------------------------
John C. Leo, Director
---------------------------
Yongguo Yang, Director
INDEX TO EXHIBITS
4.1 2004 Equity Incentive Plan
5 Opinion of Robert Brantl, Esq.
23.1 Consent of Rosenberg Rich Baker Berman & Co., C.P.A., P.A.
23.2 Consent of Robert Brantl, Esq. is contained in his opinion, filed as
Exhibit 5.
* * * * *
EXHIBIT 4.1
ADVANCED BATTERY TECHNOLOGIES, INC.
2004 Equity Incentive Plan
Article 1. Establishment and Purpose
1.1 Establishment of the Plan. Advanced Battery Technologies, Inc., a
Delaware corporation (the "Company" or "Advanced Battery Technologies"),
hereby establishes an incentive compensation plan (the "Plan"), as set forth
in this document.
1.2 Purpose of the Plan. The purpose of the Plan is to promote the
success and enhance the value of the Company by linking the personal interests
of Participants to those of the Company's shareholders, and by providing
Participants with an incentive for outstanding performance. The Plan is further
intended to attract and retain the services of Participants upon whose judgment,
interest, and special efforts the successful operation of Advanced Battery
Technologies and its subsidiaries is dependent.
1.3 Effective Date of the Plan. The Plan shall become effective on
August 24, 2004.
Article 2. Definitions
Whenever used in the Plan, the following terms shall have the meanings
set forth below and, when the meaning is intended, the initial letter of the
word is capitalized:
(a) "Award" means, individually or collectively, a grant under this
Plan of Stock, Nonqualified Stock Options, Incentive Stock Options, Restricted
Stock, or Performance Shares.
(b) "Award Agreement" means an agreement which may be entered into by
each Participant and the Company, setting forth the terms and provisions
applicable to Awards granted to Participants under this Plan.
(c) "Board" or "Board of Directors" means the Company's Board of
Directors.
(d) "Cause" shall mean willful and gross misconduct on the part of an
Eligible Person that is materially and demonstrably detrimental to the
Company or any Subsidiary as determined by the Committee in its sole discre
tion.
(e) "Change in Control" shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), other than (A) a person who on August 24, 2004 was the beneficial owner
of more than 25% of the outstanding Shares, (B) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or (C) a
corporation owned directly or indirectly by the shareholders of the Company
in substantially the same proportions as their ownership of stock of the
Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total voting power represented by the
Company's then outstanding voting securities, or (ii) during any period of
two (2) consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Company and any new Director whose
election by the Board of Directors or nomination for election by the Com
pany's shareholders was approved by a vote of at least two-thirds (2/3) of
the Directors then still in office who either were Directors at the beginning
of the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof, or (iii) the
shareholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least fifty-five
percent (55%) of the total voting power represented by the voting securities
of the Company or such surviving entity outstanding immediately after such
merger or consolidation, or the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposi
tion by the Company of all or substantially all the Company's assets.
(f) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(g) "Committee" means the committee or committees, as specified in
Article 3, appointed by the Board to administer the Plan with respect to
grants of Awards.
(h) "Consultant" means a natural person under contract with the Company
to provide bona fide services to the Company which are not in connection with
the offer or sale of securities in a capital-raising transaction and do not
directly or indirectly promote or maintain a market for the Company's securi
ties.
(i) "Director" means any individual who is a member of the Advanced
Battery Technologies Board of Directors.
(j) "Disability" shall mean the Participant's inability to perform the
Participant's normal Employment functions due to any medically determinable
physical or mental disability, which can last or has lasted 12 months or is
expected to result in death.
(k) "Eligible Person" means an Employee, Director or Consultant.
(l) "Employee" means any officer or employee of the Company or of one
of the Company's Subsidiaries. Directors who are not otherwise employed by
the Company shall not be considered Employees under this Plan.
(m) "Employment," with reference to an Employee, means the condition
of being an officer or employee of the Company or one of its Subsidiaries.
"Employment," with reference to a Consultant, means the condition of being a
Consultant. "Employment," with reference to a Director, means the condition
of being a Director. The change in status of an Eligible Person among the
categories of Employee, Director and Consultant shall not be deemed a termina
tion of Employment.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor Act thereto.
(o) "Exercise Price" means the price at which a Share may be purchased
by a Participant pursuant to an Option, as determined by the Committee.
(p) "Fair Market Value" shall mean (i) at such time as there are
closing prices quoted for the Shares, the closing price of Shares on the
relevant date, or (if there were no sales on such date) the next preceding
trading date, all as reported on the principal market for the Shares, or (ii)
at such time as there is a public market quoted without closing prices, the
mean of the closing high bid and low asked on the relevant date, as reported
on the principal market for the Shares, or (iii) at such time as there is no
public market for the Shares, the value determined from time to time by the
Board of Directors..
(q) "Incentive Stock Option" or "ISO" means an option to purchase
Shares from Advanced Battery Technologies, granted under this Plan, which is
designated as an Incentive Stock Option and is intended to meet the require
ments of Section 422 of the Code.
(r) "Insider" shall mean an Eligible Person who is, on the relevant
date, an officer, director, or ten percent (10%) beneficial owner of the
Company, as those terms are defined under Section 16 of the Exchange Act.
(s) "Nonqualified Stock Option" or "NQSO" means the option to purchase
Shares from Advanced Battery Technologies, granted under this Plan, which is
not intended to be an Incentive Stock Option.
(t) "Option" or "Stock Option" shall mean an Incentive Stock Option or
a Nonqualified Stock Option.
(u) "Participant" means a person who holds an outstanding Award
granted under the Plan.
(v) "Performance Share" shall mean an Award granted to an Eligible
Person pursuant to Article 8 herein.
(w) "Plan" means this 2004 Equity Incentive Plan.
(x) "Restricted Stock" means an Award of Stock granted to an Eligible
Person pursuant to Article 7 herein.
(y) "Restriction Period" means the period during which Shares of
Restricted Stock are subject to restrictions or conditions under Article 7.
(z) "Shares" or "Stock" means the shares of common stock of the
Company.
(aa) "Subsidiary" shall mean any corporation in which the Company owns
directly, or indirectly through subsidiaries, more than fifty percent (50%)
of the total combined voting power of all classes of Stock, or any other
entity (including, but not limited to, partnerships and joint ventures) in
which the Company owns more than fifty percent (50%) of the combined equity
thereof.
Article 3. Administration
3.1 The Committee. The Plan and all Awards hereunder shall be
administered by one or more Committees of the Board as may be appointed by the
Board for this purpose. The Board may appoint a Committee specifically
responsible for Awards to Insiders (the "Disinterested Committee") where each
Director on such Disinterested Committee is a "Non-Employee Director" (or any
successor designation for determining who may administer plans, transactions
or awards exempt under Section 16(b) of the Exchange Act), as that term is
used in Rule 16b-3 under the Exchange Act, as that rule may be modified from
time to time. If no specific Committee is appointed by the Board, then the
Board in its entirety shall be the Committee. Any Committee may be replaced
by the Board at any time.
3.2 Authority of the Committee. The Committee shall have full power,
except as limited by law and subject to the provisions herein, to select the
recipients of Awards; to determine the size and types of Awards; to determine
the terms and conditions of such Awards in a manner consistent with the Plan;
to construe and interpret the Plan and any agreement or instrument entered
into under the Plan; to establish, amend, or waive rules and regulations for
the Plan's administration; and (subject to the provisions of Article 10
herein) to amend the terms and conditions of any outstanding Award to the
extent such terms and conditions are within the discretion of the Committee as
provided in the Plan. Further, the Committee shall make all other determina
tions which may be necessary or advisable for the administration of the Plan.
No Award may be made under the Plan after December 31, 2013.
All determinations and decisions made by the Committee pursuant to the
provisions of the Plan and all related orders or resolutions of the Board
shall be final, conclusive, and binding on all persons, including the Company,
its stockholders, Eligible Persons, Participants, and their estates and
beneficiaries.
Subject to the terms of this Plan, the Committee is authorized, and
shall not be limited in its discretion, to use any of the Performance Criteria
specified herein in its determination of Awards under this Plan.
Article 4. Shares Subject to the Plan
4.1 Number of Shares. Subject to adjustment as provided in Section 4.3
herein, the number of Shares available for grant under the Plan shall not
exceed five million (5,000,000) Shares. The Shares granted under this Plan
may be either authorized but unissued or reacquired Shares.
Without limiting the discretion of the Committee under this section,
unless otherwise provided by the Committee, the following rules will apply for
purposes of the determination of the number of Shares available for grant
under the Plan or compliance with the foregoing limits:
(a) The grant of Stock, a Stock Option or a Restricted Stock Award
shall reduce the Shares available for grant under the Plan by the number of
Shares subject to such Award. However, to the extent the Participant uses
previously owned Shares to pay the Exercise Price or any taxes, or Shares are
withheld to pay taxes, these Shares shall be available for regrant under the
Plan.
(b) With respect to Performance Shares, the number of Performance
Shares granted under the Plan shall be deducted from the number of Shares
available for grant under the Plan. The number of Performance Shares which
cannot be, or are not, converted into Shares and distributed to the Partici
pant (after any applicable tax withholding) following the end of the Perfor
mance Period shall increase the number of Shares available for regrant under
the Plan by an equal amount.
4.2 Lapsed Awards. If any Award granted under this Plan is canceled,
terminates, expires, or lapses for any reason, Shares subject to such Award
shall be again available for the grant of an Award under the Plan.
4.3 Adjustments in Authorized Plan Shares. In the event of any merger,
reorganization, consolidation, recapitalization, separation, liquidation,
Stock dividend, split-up, Share combination, or other change in the corporate
structure of the Company affecting the Shares, an adjustment shall be made in
the number and class of Shares which may be delivered under the Plan, and in
the number and class of and/or price of Shares subject to outstanding Awards
granted under the Plan, and/or the number of outstanding Options, Shares of
Restricted Stock, and Performance Shares constituting outstanding Awards, as
may be determined to be appropriate and equitable by the Committee, in its
sole discretion, to prevent dilution or enlargement of rights.
Article 5. Stock Grant
5.1 Grant of Stock. Subject to the terms and provisions of the Plan,
the Board of Directors, at any time and from time to time, may grant Shares of
Stock to Eligible Persons in such amounts and upon such terms and conditions
as the Board of Directors shall determine.
Article 6. Stock Options
6.1 Grant of Options. Subject to the terms and provisions of the Plan,
Options may be granted to Eligible Persons at any time and from time to time,
and under such terms and conditions, as shall be determined by the Committee.
The Committee shall have discretion in determining the number of Shares
subject to Options granted to each Eligible Person. The Committee may grant
ISOs, NQSOs, or a combination thereof. ISOs, however, may be granted only to
Employees and only if this Plan is approved by the shareholders of the Company
within one year after it is adopted by the Board of Directors.
6.2 Form of Issuance. Each Option grant may be issued in the form of
an Award Agreement and/or may be recorded on the books and records of the
Company for the account of the Participant. If an Option is not issued in the
form of an Award Agreement, then the Option shall be deemed granted as
determined by the Committee. The terms and conditions of an Option shall be
set forth in the Award Agreement, in the notice of the issuance of the grant,
or in such other documents as the Committee shall determine. Such terms and
conditions shall include the Exercise Price, the duration of the Option, the
number of Shares to which an Option pertains (unless otherwise provided by the
Committee, each Option may be exercised to purchase one Share), and such other
provisions as the Committee shall determine, including, but not limited to
whether the Option is intended to be an ISO or a NQSO.
6.3 Exercise Price.
(a) Unless a greater Exercise Price is determined by the Committee, the
Exercise Price for each ISO awarded under this Plan shall be equal to one
hundred percent (100%) of the Fair Market Value of a Share on the date the
Option is granted. If, however, the Eligible Person owns stock possessing
more than ten percent (10%) of the total combined voting power of all classes
of stock of the Company or of its parent or subsidiary corporations, then the
Exercise Price of an ISO shall be not less than one hundred ten percent (110%)
of the Fair Market Value of a Share on the date the Option is granted.
(b) The Exercise Price of a NQSO shall be determined by the Committee in
its sole discretion.
6.4 Duration of Options. Each Option shall expire at such time as the
Committee shall determine at the time of grant (which duration may be extended
by the Committee); provided, however, that no Option shall be exercisable
later than the tenth (10th) anniversary date of its grant. If, however, the
Eligible Person owns stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of its parent
or subsidiary corporations, then no Option shall be exercisable later than the
fifth (5th) anniversary date of its grant.
6.5 Vesting of Options. Options shall vest at such times and under
such terms and conditions as determined by the Committee; provided, however,
unless a different vesting period is provided by the Committee at or before
the grant of an Option, the Options will vest on the first anniversary of
the grant.
6.6 Exercise of Options. Options granted under the Plan shall be
exercisable at such times and be subject to such restrictions and conditions
as the Committee shall in each instance approve, which need not be the same
for each grant or for each Participant.
Options shall be exercised by delivery of a written notice (including
e-mail and telecopies) to the Secretary of the Company (or, if so provided by
the Company, to its designated agent), which notice shall be irrevocable,
setting forth the exact number of Shares with respect to which the Option is
being exercised and including with such notice payment of the Exercise Price.
When Options have been transferred, the Company or its designated agent may
require appropriate documentation that the person or persons exercising the
Option, if other than the Participant, has the right to exercise the Option.
No Option may be exercised with respect to a fraction of a Share.
6.7 Payment. The Exercise Price shall be paid in full at the time of
exercise. No Shares shall be issued or transferred until full payment has
been received therefor.
Payment may be made:
(a) in cash, or
(b) unless otherwise provided by the Committee at any time, and subject
to such additional terms and conditions and/or modifications as the Committee
or the Company may impose from time to time, and further subject to suspension
or termination of this provision by the Committee or Company at any time,
by delivery of Shares of Stock owned by the Participant in partial (if in
partial payment, then together with cash) or full payment (if a fractional
Share remains after payment of the Exercise Price in full by previously owned
Shares, then the fractional Share shall be withheld for taxes); provided,
however, as a condition to paying any part of the Exercise Price in Stock, at
the time of exercise of the Option, the Participant must establish to the
satisfaction of the Company that the Stock tendered to the Company has been
held by the Participant for a minimum of six (6) months preceding the tender;
or
If payment is made by the delivery of Shares of Stock, the value of
the Shares delivered shall be equal to the Fair Market Value of the Shares on
the day preceding the date of exercise of the Option.
6.8 Termination of Employment. Unless otherwise provided by the
Committee, the following limitations on exercise of Options shall apply upon
termination of Employment:
(a) Termination by Death or Disability. In the event the Employment of
a Participant shall terminate by reason of death or Disability, all outstand
ing Options granted to that Participant shall immediately vest as of the date
of termination of Employment and may be exercised, if at all, no more than
three (3) years from the date of the termination of Employment, unless the
Options, by their terms, expire earlier.
(b) Termination for Cause. If the Employment of a Participant shall be
terminated by the Company for Cause, all outstanding Options held by the
Participant shall immediately be forfeited to the Company and no additional
exercise period shall be allowed, regardless of the vested status of the
Options.
(c) Retirement or Other Termination of Employment. If the Employment
of a Participant shall terminate for any reason other than the reasons set
forth in (a) or (b) above, all outstanding Options which are vested as of the
effective date of termination of Employment may be exercised, if at all, no
more than thirty (30) days from the date of termination of Employment, unless
the Options, by their terms, expire earlier. In the event of the death of
the Participant after termination of Employment, this paragraph (c) shall
still apply and not paragraph (a), above.
(d) Options not Vested at Termination. Except as provided in para
graph (a) above, all Options held by the Participant which are not vested on
or before the effective date of termination of Employment shall immediately be
forfeited to the Company (and shall once again become available for grant
under the Plan).
(e) Notwithstanding the foregoing, the Committee may, in its sole
discretion, establish different terms and conditions pertaining to the effect
of termination of Employment, but no such modification shall shorten the terms
of Options issued prior to such modification.
6.9 Restrictions on Exercise and Transfer of Options. Unless otherwise
provided by the Committee:
(a) During the Participant's lifetime, the Participant's Options shall
be exercisable only by the Participant or by the Participant's guardian or
legal representative. After the death of the Participant, an Option shall
only be exercised by the holder thereof (including, but not limited to, an
executor or administrator of a decedent's estate) or his guardian or legal
representative.
(b) No Option shall be transferable except: (i) in the case of the
Participant, only upon the Participant's death; and (ii) in the case of any
holder after the Participant's death, only by will or by the laws of descent
and distribution.
6.10 Competition. Notwithstanding anything in this Article 6 to the
contrary, in the event the Committee determines, in its sole discretion, that
a Participant is engaging in activity competitive with the Company, any
Subsidiary, or any business in which any of the foregoing have a substantial
interest (the "Advanced Battery Technologies Businesses"), the Committee may
cancel any Option granted to such Participant, whether or not vested, in whole
or in part. Such cancellation shall be effective as of the date specified by
the Committee. Competitive activity shall mean any business or activity if a
substantially similar business activity is being carried on by a Advanced
Battery Technologies Business, including, but not limited to, representing or
providing consulting services to any person or entity that is engaged in
competition with a Advanced Battery Technologies Business or that takes a
position adverse to a Advanced Battery Technologies Business. However,
competitive activity shall not include, among other things, owning a
nonsubstantial interest as a shareholder in a competing business.
Article 7. Restricted Stock
7.1 Grant of Restricted Stock. Subject to the terms and provisions of
the Plan, the Committee, at any time and from time to time, may grant Shares
of Restricted Stock to Eligible Persons in such amounts and upon such terms
and conditions as the Committee shall determine. In addition to any other
terms and conditions imposed by the Committee, vesting of Restricted Stock may
be conditioned upon the attainment of Performance Goals based on Performance
Criteria in the same manner as provided in Section 8.3, herein with respect to
Performance Shares.
7.2 Restricted Stock Agreement. The Committee may require, as a
condition to an Award, that a recipient of a Restricted Stock Award enter into
a Restricted Stock Award Agreement, setting forth the terms and conditions of
the Award. In lieu of a Restricted Stock Award Agreement, the Committee may
provide the terms and conditions of an Award in a notice to the Participant of
the Award, on the Stock certificate representing the Restricted Stock, in the
resolution approving the Award, or in such other manner as it deems
appropriate.
7.3 Transferability. Except as otherwise provided in this Article 7,
the Shares of Restricted Stock granted herein may not be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated until the end of the
applicable Restriction Period established by the Committee, if any.
7.4 Other Restrictions. The Committee may impose such other conditions
and/or restrictions on any Shares of Restricted Stock granted pursuant to the
Plan as it may deem advisable including, without limitation, a requirement
that Participants pay a stipulated purchase price for each Share of Restricted
Stock and/or restrictions under applicable Federal or state securities laws;
and may legend the certificates representing Restricted Stock to give
appropriate notice of such restrictions.
The Company shall also have the right to retain the certificates
representing Shares of Restricted Stock in the Company's possession until such
time as all conditions and/or restrictions applicable to such Shares have been
satisfied.
7.5 Removal of Restrictions. Except as otherwise provided in this
Article 7, Shares of Restricted Stock covered by each Restricted Stock grant
made under the Plan shall become freely transferable by the Participant after
the last day of the Restriction Period and completion of all conditions to
vesting, if any. However, unless otherwise provided by the Committee, the
Committee, in its sole discretion, shall have the right to immediately waive
all or part of the restrictions and conditions with regard to all or part of
the Shares held by any Participant at any time.
7.6 Voting Rights, Dividends and Other Distributions. During the
Restriction Period, Participants holding Shares of Restricted Stock granted
hereunder may exercise full voting rights and shall receive all regular cash
dividends paid with respect to such Shares. Except as provided in the
following sentence, in the sole discretion of the Committee, other cash
dividends and other distributions paid to Participants with respect to Shares
of Restricted Stock may be subject to the same restrictions and conditions as
the Shares of Restricted Stock with respect to which they were paid. If any
such dividends or distributions are paid in Shares, the Shares shall be
subject to the same restrictions and conditions as the Shares of Restricted
Stock with respect to which they were paid.
7.7 Termination of Employment Due to Death or Disability. In the event
the Employment of a Participant shall terminate by reason of death or
Disability, unless otherwise provided by the Committee prior to or at the time
of the Award, all Restriction Periods and all restrictions imposed on
outstanding Shares of Restricted Stock held by the Participant shall
immediately lapse and the Restricted Stock shall immediately become fully
vested as of the date of termination of Employment.
7.8 Termination of Employment for Other Reasons. If the Employment of
a Participant shall terminate for any reason other than those specifically set
forth in Section 7.7 herein, all Shares of Restricted Stock held by the
Participant which are not vested as of the effective date of termination of
Employment immediately shall be forfeited and returned to the Company.
Article 8. Performance Shares
8.1 Grants of Performance Shares. A Performance Share is equivalent
in value to a Share of Stock. Subject to the terms of the Plan, Performance
Shares may be granted to Eligible Persons at any time and from time to time,
as determined by the Committee. The Committee shall have complete discretion
in determining the number of Performance Shares awarded to each Participant.
8.2 Performance Period. The Performance Period for Performance Shares
is the period over which the Performance Goals are measured. The Performance
Period is set by the Committee for each Award; however, in no event shall an
Award have a Performance Period of less than six months.
8.3 Performance Goals. For each Award of Performance Shares, the
Committee shall establish performance objectives ("Performance Goals") for the
Company, its Subsidiaries, and/or divisions of any of foregoing, based on the
Performance Criteria and other factors set forth below. Performance Goals
shall include payout tables, formulas or other standards to be used in
determining the extent to which the Performance Goals are met, and, if met,
the number of Performance Shares distributed to Participants in accordance
with Section 8.5. All Performance Shares which may not be converted under the
Performance Goals or which are reduced by the Committee under Section 8.5 or
which may not be converted for any other reason after the end of the
Performance Period shall be canceled at the time they would otherwise be
distributable. When the Committee desires an Award to qualify under Section
162(m) of the Code, as amended, the Committee shall establish the Performance
Goals for the respective Performance Shares prior to or within 90 days of the
beginning of the service relating to such Performance Goal, and not later than
after 25% of such period of service has elapsed. For all other Awards, the
Performance Goals must be established before the end of the respective
Performance Period.
(a) The Performance Criteria which the Committee is authorized to use,
in its sole discretion, are any of the following criteria or any combination
thereof:
(1) Financial performance of the Company (on a consolidated basis), of
one or more of its Subsidiaries, and/or a division of any of the
foregoing. Such financial performance may be based on net income
and/or Value Added (after-tax cash operating profit less
depreciation and less a capital charge).
(2) Service performance of the Company (on a consolidated basis), of
one or more of its Subsidiaries, and/or of a division of any of
the foregoing. Such service performance may be based upon
measured customer perceptions of service quality.
(3) The Company's Stock price; return on shareholders' equity; total
shareholder return (Stock price appreciation plus dividends,
assuming the reinvestment of dividends); and/or earnings per
share.
(4) With respect to the Company (on a consolidated basis), to one or
more of its Subsidiaries, and/or to a division of any of the
foregoing: sales, costs, market share of a product or service,
return on net assets, return on assets, return on capital, profit
margin, and/or operating revenues, expenses or earnings.
(5) Completion of a marketing or development project as defined in the
Award Agreement.
(b) Except to the extent otherwise provided by the Committee in full
or in part, if any of the following events occur during a Performance Period
and would directly affect the determination of whether or the extent to which
Performance Goals are met, they shall be disregarded in any such computation:
changes in accounting principles; extraordinary items; changes in tax laws
affecting net income and/or Value Added; natural disasters, including floods,
hurricanes, and earthquakes; and intentionally inflicted damage to property
which directly or indirectly damages the property of the Company or its
Subsidiaries. No such adjustment shall be made to the extent such adjustment
would cause the Performance Shares to fail to satisfy the performance-based
exemption of Section 162(m) of the Code.
8.4 Dividend Equivalents on Performance Shares. Unless reduced or
eliminated by the Committee, a cash payment in an amount equal to the dividend
payable on one Share will be made to each Participant for each Performance
Share which on the record date for the dividend had been awarded to the
Participant and not converted, distributed or canceled.
8.5 Form and Timing of Payment of Performance Shares. As soon as
practicable after the applicable Performance Period has ended and all other
conditions (other than Committee actions) to conversion and distribution of a
Performance Share Award have been satisfied (or, if applicable, at such other
time determined by the Committee at or before the establishment of the
Performance Goals for such Performance Period), the Committee shall determine
whether and the extent to which the Performance Goals were met for the
applicable Performance Shares. If Performance Goals have been met, then the
number of Performance Shares to be converted into Stock and distributed to the
Participants shall be determined in accordance with the Performance Goals for
such Awards, subject to any limits imposed by the Committee. Conversion of
Performance Shares shall occur as soon as reasonably administratively possible
following the determination of the number of Shares to which the Participant
is entitled. At any time prior to the distribution of the Performance Shares,
unless otherwise provided by the Committee, the Committee shall have the
authority to reduce or eliminate the number of Performance Shares to be
converted.
8.6 Termination of Employment Due to Death or Disability. Unless
otherwise provided by the Committee prior to or at the time of an Award, if
the Employment of a Participant shall terminate by reason of death or
Disability, the Participant shall receive a distribution of all outstanding
Performance Shares calculated as if all unfinished Performance Periods had
ended with 100% of the Performance Goals achieved, payable in the year
following the date of termination of Employment.
8.7 Termination of Employment for Other Reasons. If the Employment of
a Participant shall terminate for other than a reason set forth in Section 8.6
(and other than for Cause), the number of Performance Shares to be converted
and distributed shall be converted and distributed based upon the achievement
of the Performance Goals and in accordance with all other terms of the Award
and the Plan; however, the Participant may receive no more than a prorated
payout of all Performance Shares, based on the portions of the respective
Performance Periods that have been completed.
8.8 Termination of Employment for Cause. In the event that a
Participant's Employment shall be terminated by the Company for Cause, all
Performance Shares shall be forfeited by the Participant to the Company.
8.9 Nontransferability. Performance Shares may not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other
than by will or laws of intestacy.
Article 9. Employee Matters
9.1 Employment Not Guaranteed. Nothing in the Plan shall interfere
with or limit in any way the right of the Company or any Subsidiary to
terminate any Participant's Employment at any time, nor confer upon any
Participant any right to continue in the employ of the Company or one of its
Subsidiaries.
9.2 Participation. No Eligible Person shall have the right to be
selected to receive an Award under this Plan, or, having been so selected, to
be selected to receive a future Award.
9.3 Claims and Appeals. Any claim under the Plan by a Participant or
anyone claiming through a Participant shall be presented to the Committee. Any
person whose claim under the Plan has been denied may, within sixty (60) days
after receipt of notice of denial, submit to the Committee a written request
for review of the decision denying the claim. The Committee shall determine
conclusively for all parties all questions arising in the administration of
the Plan.
Article 10. Amendment, Modification, and Termination
10.1 Amendment, Modification, and Termination. The Board of Directors
alone shall have the right to alter, amend or revoke the Plan or any part
thereof at any time and from time to time, provided, however, that the Board
of Directors may not, without the approval of the holders of a majority of the
voting Shares, make any alteration or amendment to the Plan which changes the
aggregate number of shares of Common Stock which may be issued under the Plan,
extend the term of the Plan, or change the employees or class of employees
eligible to receive Awards thereunder. The Board may at any time suspend or
terminate the Plan in whole or in part.
10.2 Awards Previously Granted. No termination, amendment, or
modification of the Plan shall adversely affect in any material way any Award
previously granted under the Plan, without the written consent of the
Participant holding such Award.
Article 11. Change in Control
Upon the occurrence of a Change in Control:
(a) Any and all Options granted hereunder immediately shall become
vested and exercisable;
(b) Any Restriction Periods and all restrictions imposed on Restricted
Shares shall lapse and they shall immediately become fully vested;
(c) The 100% Performance Goal for all Performance Shares relating to
incomplete Performance Periods shall be deemed to have been fully achieved
and shall be converted and distributed in accordance with all other terms of
the Award and this Plan; provided, however, notwithstanding anything to the
contrary in this Plan, no outstanding Performance Share may be reduced.
Article 12. Withholding
12.1 Tax Withholding. The Company shall deduct or withhold an amount
sufficient to satisfy Federal, state, and local taxes (including the
Participant's employment tax obligations) required by law to be withheld with
respect to any taxable event arising or as a result of this Plan ("Withholding
Taxes").
12.2 Share Withholding. With respect to withholding required upon the
exercise of Options, upon the lapse of restrictions on Restricted Stock, upon
the distribution of Performance Shares in the form of Stock, or upon any other
taxable event hereunder involving the transfer of Stock to a Participant, the
Company shall withhold Stock having a Fair Market Value on the date the tax is
to be determined in an amount equal to the Withholding Taxes on such Stock.
Any fractional Share remaining after the withholding shall be withheld as
additional Federal withholding.
Prior to the end of any Performance Period a Participant may elect to
have a greater amount of Stock withheld from the distribution of Performance
Shares to pay withholding taxes; provided, however, the Committee may prohibit
or limit any individual election or all such elections at any time.
12.3 Payment In Lieu of Share Withholding. In any situation in which
the Company would be required to withhold Stock pursuant to Sec. 12.2 above,
the Participant may, in lieu of all or part of such withholding, remit to the
Company an amount in cash sufficient to satisfy the federal, state and local
withholding tax requirements or may direct the Company to withhold from other
amounts payable to the Participant, including salary.
Article 13. Successors
All obligations of the Company under the Plan, with respect to Awards
granted hereunder, shall be binding on any successor to the Company, whether
the existence of such successor is the result of a direct or indirect
purchase, merger, consolidation, or otherwise, of all or substantially all of
the business and/or assets of the Company.
Article 14. Legal Construction
14.1 Severability. In the event any provision of the Plan shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
14.2 Requirements of Law. The granting of Awards and the issuance of
Shares under the Plan shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
14.3 Securities Law Compliance. With respect to Insiders, transactions
under this Plan are intended to comply with all applicable conditions of Rule
16b-3 or its successors under the Exchange Act. To the extent any provision
of the plan or action by the Committee fails to comply with a condition of
Rule 16b-3 or its successors, it shall not apply to the Insiders or
transactions thereby.
14.4 Governing Law. To the extent not preempted by Federal law, the
Plan, and all agreements hereunder, shall be construed in accordance with and
governed by the laws of the State of Delaware.
* * * * *
EXHIBIT 5
ROBERT BRANTL, ESQ.
322 Fourth Street
Brooklyn, NY 11215
718-768-6045
August 24, 2004
Advanced Battery Technologies, Inc.
100 Wall Street, 15th Floor
New York, NY 10005
Gentlemen:
With reference to the Registration Statement on Form S-8 which Advanced
Battery Technologies, Inc. proposes to file with the Securities and Exchange
Commission registering 5,000,000 common shares which may be offered and sold
by Advanced Battery Technologies, Inc. under the 2004 Equity Incentive Plan
(the "Shares"), I am of the opinion that all proper corporate proceedings have
been taken so that the Shares, upon sale and payment therefor in accordance
with the Plan, will be legally issued, fully paid, and nonassessable.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement referred to
above.
Yours,
/s/ Robert Brantl
---------------------
Robert Brantl
* * * * *
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the use in this Registration Statement on Form S-8 of our
report dated April 30, 2004 with respect to the financial statements of
Cashtech Investment Limited and Subsidiaries as of March 31, 2004, and the
consolidated statements of operations and cash flows for the period from
January 20, 2004 (date of inception) to March 31, 2004.
/s/Rosenberg Rich Baker Berman & Co.
---------------------------------------
Rosenberg Rich Baker Berman & Co.
Certified Public Accountants
Bridgewater, New Jersey
August 25, 2004