As filed with the Securities and Exchange Commission on April 16, 2002
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LITHIUM TECHNOLOGY CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 13-3411148
(State or other Jurisdiction of) (IRS Employer Identification No.)
5115 Campus Drive
Plymouth Meeting, PA 19462
(Address of principal executive offices)
2002 Stock Incentive Plan
(Full title of the plan)
DAVID J. CADE
Chairman and Chief Executive Officer
Lithium Technology Corporation
5115 Campus Drive
Plymouth Meeting, PA 19462
(Name and address of agent for service)
(610) 940-6090
(Telephone number, including area code, of agent for service)
Copy to:
THOMAS P. GALLAGHER
Gallagher, Briody & Butler
155 Village Boulevard
2nd Floor
Princeton, New Jersey 08540
(609) 452-6000
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered Registered (1) per share (2) price registration fee (3)
-----------------------------------------------------------------------------------------------------------------------
Common Stock, 7,000,000 $0.155 $1,085,000 $99.82
par value $.01 per share
(1) This registration statement covers 7,000,000 shares of Common Stock of
Lithium Technology Corporation that may be offered or sold pursuant to the
Lithium Technology Corporation 2002 Stock Incentive Plan. This registration
statement also relates to an indeterminate number of shares of Common Stock
that may be issued upon stock splits, stock dividends or similar
transactions in accordance with Rule 416.
(2) Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for the
purpose of calculating the registration fee, based upon the average of the
reported bid and asked price of shares of Common Stock on April 10, 2002 as
reported on the OTC Bulletin Board.
(3) Calculated as follows: proposed maximum aggregate offering price multiplied
by .000092.
PART I
INFORMATION REQUESTED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in this Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the Introductory
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by the Company with the
Securities and Exchange Commission (the "Commission"), are hereby incorporated
by reference in this Registration Statement and made a part hereof:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2001, filed with the Commission on March 28, 2002.
(b) The Company's Current Reports on Form 8-K, filed with the Commission
since December 31, 2001.
(c) The description of the Common Stock of the Company contained in a
registration statement filed on Form 8-A under the Securities Exchange Act of
1934 filed on January 23, 1990, including any amendment or report filed for the
purpose of updating such description.
All reports and other documents subsequently filed by the Company 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 that indicate that all
securities offered hereby have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained therein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law (the
"DGCL"), Article V of the Company's By-laws provides for the indemnification of
an "authorized representative" of the Company (a) against expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person, by reason of the fact that such person was or is an authorized
representative of the Company, in connection with a threatened, pending or
completed third party proceeding, whether civil or criminal, administrative or
investigative, if such individual acted in good faith and in a manner such
person reasonably believed to be in, or not opposed to, the best interests of
the Company, and, if the action was a criminal proceeding, if such person had no
reasonable cause to believe that such person's conduct was unlawful; and (b)
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of a threatened, pending or completed corporate
proceeding, by reason of the fact such person was or is an authorized
representative of the Company, if such person acted under the standards set
forth in section (a) above and if such person was not found liable to the
Company (or if so found liable, if a proper court found such person to be fairly
and reasonably entitled to indemnification). The Company's By-laws further
provide for mandatory indemnification of authorized representatives of the
Company who have been successful in defense of any third party or corporate
proceeding or in defense of any claim, issue or matter therein, against expenses
actually and reasonably incurred in connection with such defense. An "authorized
representative" of the Company includes a director, officer, employee or agent
of the Company, or a person serving at the request of the Company as a director,
officer of another corporation, partnership, joint venture, trust or other
enterprise.
In addition, Article Ninth of the Company's Certificate of Incorporation
provides that, to the full extent that the DGCL permits the limitation or
elimination of the liability of directors or officers of a corporation,
directors of the Company shall not be personally liable to the Company or its
stockholders for monetary damages. As a result of this provision, the Company
and its stockholders may be unable to obtain monetary damages from a director
for breach of such director's duty of care. Although stockholders may continue
to seek injunctive or other equitable relief for an alleged breach of fiduciary
duty by a director, stockholders may not have any effective remedy against the
challenged conduct if equitable remedies are unavailable.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted against the
Company by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by
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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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of this registration
statement.
Exhibit Number Exhibit
-------------- -------
5.1 Opinion of Gallagher, Briody & Butler
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Wiss & Co., LLP
23.3 Consent of Gallagher, Briody & Butler
(included as part of Exhibit 5.1)
24.1 Power of Attorney (included as part
of the signature page)
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the 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) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
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(iii) 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;
Provided, however, that subparagraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by referenced 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 that remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or 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 therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 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 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 Company
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 Town of Plymouth Meeting, Commonwealth of Pennsylvania, on
this 15th day of April, 2002.
LITHIUM TECHNOLOGY CORPORATION
Date: April 15, 2002 By: /s/ David J. Cade
---------------------------
David J. Cade, Chairman and
Chief Executive Officer
(Principal Executive Officer)
By: /s/ William D. Walker
---------------------------
William D. Walker, Chief Financial Officer
(Principal Financial and Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by or on behalf of the following
persons in the capacities and on the dates indicated.
Each person, in so signing, also makes, constitutes and appoints David J.
Cade, Chairman and Chief Executive Officer, his true and lawful
attorney-in-fact, in his name, place and stead to execute and cause to be filed
with the Securities and Exchange Commission any or all amendments to this
Registration Statement, with all exhibits and any and all documents required to
be filed with respect thereto, and to do and perform each and every act and
thing necessary to effectuate the same.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ David J. Cade Director April 15, 2002
----------------------
David J. Cade
/s/ Stephen F. Hope Director April 15, 2002
----------------------
Stephen F. Hope
/s/ Ralph D. Ketchum Director April 15, 2002
----------------------
Ralph D. Ketchum
/s/ Arif Mastakia Director April 15, 2002
----------------------
Arif Mastakia
Director April __, 2002
----------------------
John D. McKey, Jr.
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INDEX TO EXHIBITS
EXHIBIT
NUMBERS EXHIBIT
------- -------
5.1 Opinion of Gallagher, Briody & Butler
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Wiss & Co., LLP
23.3 Consent of Gallagher, Briody & Butler (included as part of
Exhibit 5.1)
24.1 Power of Attorney (included as part of the signature page)
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