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As filed with the Securities and Exchange Commission on June 2, 1999
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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)
Individual Plan with
Gallagher, Briody & Butler
(Full title of the plan)
THOMAS R. THOMSEN
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)
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Copy to:
THOMAS P. GALLAGHER
Gallagher, Briody & Butler
212 Carnegie Center
Suite 402
Princeton, New Jersey 08540
(609) 452-6000
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered Registered per share price registration fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 267,857 $.54 $144,642.78 $40.21
par value $.01 per share
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(1) 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 May 26,
1999 as reported on the OTC Bulletin Board.
The shares covered by this Registration Statement are shares granted or to be
granted under the plans described herein.
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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
Commission, are hereby incorporated by reference in this Prospectus and made a
part hereof:
(a) The Company's latest annual report, filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the fiscal year covered by
the annual report referred to in (a) above.
(c) The description of the Common Stock of the Company that is
contained in a registration statement filed under the Securities Exchange Act of
1934, including any amendment or report filed for the purpose of updating such
description.
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 hereof.
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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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
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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 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.
The Shares of Common Stock which have been issued to partners
of a consultant of the Company, were issued without registration under the
Securities Act of 1933 (the "Securities Act") in accordance with the exemption
from registration contained in Section 4(2) of the Securities Act.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of this
registration statement.
Exhibit Number Exhibit
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5.1 Opinion of Gallagher, Briody & Butler
23.1 Consent of Deloitte & Touche LLP
23.2 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
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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
(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 2nd day of June, 1999.
LITHIUM TECHNOLOGY CORPORATION
By: /s/ Thomas R. Thomsen
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Thomas R. Thomsen
Chief Executive 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 Thomas
R. Thomsen, 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.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Thomas R. Thomsen Chairman, Chief Executive Officer and June 2, 1999
- --------------------- Director (Principal and Executive Officer)
Thomas R. Thomsen
/s/ David J. Cade Director June 2, 1999
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David J. Cade
/s/ George R. Ferment Director June 2, 1999
- ---------------------
George R. Ferment
/s/ Stephen F. Hope Director June 2, 1999
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Stephen F. Hope
/s/ Ralph D. Ketchum Director June 2, 1999
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Ralph D. Ketchum
/s/ Arif Mastakia Director June 2, 1999
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Arif Mastakia
/s/ John D. McKey, Jr. Director June 2, 1999
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John D. McKey, Jr.
/s/ John J. McFeeley Director June 2, 1999
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John J. McFeeley
/s/ Barry Huret Director June 2, 1999
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Barry Huret
/s/ William D. Walker Treasurer and Chief Financial Officer June 2, 1999
- --------------------- (Principal Financial Officer)
William D. Walker
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INDEX TO EXHIBITS
EXHIBIT
NUMBERS EXHIBIT
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5.1 Opinion of Gallagher, Briody & Butler
23.1 Consent of Deloitte & Touche LLP
23.2 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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Exhibit 5.1
June 2, 1999
Lithium Technology Corporation
5115 Campus Drive
Plymouth Meeting, PA 19462
RE: REGISTRATION STATEMENT ON FORM S-8 RELATING TO THE INDIVIDUAL PLAN
Dear Sir or Madam:
We have acted as counsel to Lithium Technology Corporation, a Delaware
corporation (the "Company"), in connection with the preparation of a
registration statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act"), relating to the offering of up to 267,857 shares of the
Company's Common Stock (the "Common Stock") which have been, or will be, issued
to certain partners of a consultant of the Company pursuant to an Individual
Plan entered into by the Company and the firm (the "Individual Plan"). We have
examined such records, documents, statutes and decisions as we have deemed
relevant in rendering this opinion. In our examination we have assumed the
genuineness of documents submitted to us as originals and the conformity with
the original of all documents submitted to us as copies thereof.
In our opinion, the Shares issued or to be issued in accordance with
the Individual Plan will be validly issued, fully paid and nonassessable shares
of the Common Stock of the Company.
The opinion set forth above is limited to the General Corporation Law
of the State of Delaware.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving such opinion, we do not thereby admit that we
are acting within the category of persons whose consent is required under
Section 7 of the Act or the rules or regulations of the Securities and Exchange
Commission thereunder.
GALLAGHER, BRIODY & BUTLER
By: /s/ Thomas P. Gallagher
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement of Lithium Technology Corporation on Form S-8 pertaining of our report
dated February 5, 1999 (which report expresses an unqualified opinion and
includes an explanatory paragraph relating to the uncertainty concerning the
Company's ability to continue as a going concern), appearing in the Annual
Report on Form 10-K of Lithium Technology Corporation for the fiscal year ended
December 31, 1998.
DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
May 27, 1999
