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As filed with the Securities and Exchange Commission on February 2, 2000
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LITHIUM TECHNOLOGY CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 13-3411148
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(State or other Jurisdiction of) (IRS Employer Identification No.)
5115 Campus Drive
Plymouth Meeting, Pennsylvania 19462
(Address of principal executive offices)
1998 STOCK INCENTIVE PLAN
(Full title of the plans)
DAVID J. CADE
Chairman and Chief Executive Officer
Lithium Technology Corporation
5115 Campus Drive
Plymouth Meeting, Pennsylvania 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:
BARBARA J. COMLY, ESQ.
Gallagher, Briody & Butler
212 Carnegie Center
Suite 402
Princeton, New Jersey 08540
(609) 452-6000
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<CAPTION>
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 (1) price registration fee
- ---------------------------------- ------------------ ---------------------- --------------------- -----------------
<S> <C> <C> <C> <C>
Common Stock, 3,000,000 Shares $1.26 $3,780,000.00 $997.92
par value $.01 per share
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</TABLE>
(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 January
31, 2000, as reported on the OTC Bulletin Board.
The shares covered by this Registration Statement are shares to be granted under
the plan described herein or shares issuable upon the exercise of stock options
granted or to be granted under such plan. There are also registered hereunder
such additional indeterminate number of shares as may be issued as a result of
the antidilution provisions of the plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, as filed by Lithium Technology
Corporation (the "Company") with the Securities and Exchange Commission, are
incorporated by reference in this Registration Statement 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 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
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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.
Not applicable.
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
22.2 Consent of Wiss & Company, 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.
(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.
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(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) The undersigned registrant hereby undertakes to transmit or cause
to be transmitted to all participants in the 1999 Stock Incentive Plan who do
not otherwise receive such material as shareholders of the Company, at the time
such material is sent to shareholders, copies of all reports, proxy statements
and other communications distributed to its shareholders generally.
(d) 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 February, 2000.
Lithium Technology Corporation
By: /s/ David J. Cade
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David J. Cade
Chairman and 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 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.
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<CAPTION>
Signature Capacity Date
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<S> <C> <C>
/s/ David J. Cade Chairman and February 2, 2000
- ----------------------------------- Chief Executive Officer
David. J. Cade (Chief Executive Officer and
Acting Principal Financial Officer)
/s/ George Ferment Director February 2, 2000
- -----------------------------------
George Ferment
/s/ Stephen F. Hope Director February 2, 2000
- -----------------------------------
Stephen F. Hope
/s/ Ralph D. Ketchum Director February 2, 2000
- -----------------------------------
Ralph D. Ketchum
/s/ Arif Maskatia Director February 2, 2000
- -----------------------------------
Arif Maskatia
/s/ John J. McFeeley Director February 2, 2000
- -----------------------------------
John J. McFeeley
</TABLE>
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INDEX TO EXHIBITS
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 Wiss & Company, 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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Exhibit 5.1
February 2, 2000
Lithium Technology Corporation
5115 Campus Drive
Plymouth Meeting, PA 19462
RE: REGISTRATION STATEMENT ON FORM S-8 RELATING TO THE COMPANY'S 1998
STOCK INCENTIVE PLAN
Dear Ladies and Gentlemen:
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 3,000,000 shares of the
Company's Common Stock (the "Common Stock"), to be issued pursuant to the
Company's 1998 Stock Incentive Plan (the "1998 Stock 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 of the Company's Common Stock to be issued
as share awards or upon exercise of the options granted or to be granted in
accordance with the terms of the 1998 Stock Plan, will be, when issued in
accordance with the terms of the 1998 Stock Plan, validly issued, fully paid and
nonassessable shares of the Common Stock of the Company.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving such opinion, we do not hereby 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
/s/ Gallagher, Briody & Butler
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report dated February
5, 1999 relating to the financial statements of Lithium Technology Corporation
included in its Form 10-KSB for the year ended December 31, 1998 filed with the
Securities and Exchange Commission.
/s/ DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
January 31, 2000
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report dated January
22, 1997 relating to the consolidated statements of operations, changes in
stockholders' equity (deficit) and cash flows of Lithium Technology Corporation
and subsidiary for the period July 21, 1989 (date of inception) to December 31,
1996 included in its Form 10-KSB for the year ended December 31, 1998 filed with
the Securities and Exchange Commission.
/s/ WISS & COMPANY, LLP
Philadelphia, Pennsylvania
January 31, 2000
