As filed
with the Securities and Exchange Commission on August 17, 2009
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
___________________
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
ADVANCED BATTERY
TECHNOLOGIES, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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22-2497491
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(State
or Other Jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer I.D. No.)
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ZHIGUO
FU, CHAIRMAN
Advanced
Battery Technologies, Inc.
15 West
39
th
Street, Suite 14A
New York,
NY 10018
(212)
391-2752
(Address
and telephone number of Registrant’s principal executive offices
and
name of agent for service of process.)
_________________________________
Copy
to
ROBERT
BRANTL, ESQ.
52
Mulligan Lane
Irvington,
NY 10533
Attorney
for Issuer
(914)
693-3026
(914)
693-1807 (fax)
_________________________________
Approximate date of commencement of
proposed sale to the public:
From time to time after the effective date
of this registration statement.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box.
If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
S
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering.
If this
form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
If this
form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box.
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check One)
Large
accelerated
filer Accelerated
filer
S
Non-accelerated
filer Small
reporting company
CALCULATION
OF REGISTRATION FEE
Title
of each class of securities to be registered
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Amount
to be registered
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Proposed
maximum offering price per unit
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Proposed
maximum aggregate offering price
(1)(2)
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Amount
of registration fee
(3)
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Common
Stock, $0.001 par value
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Preferred
Stock, $0.001 par value
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|
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Warrants
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Debt
Securities
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Units
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Total
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$130,000,000
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$7,254.00
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(1)
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An
indeterminate number of shares of common stock and preferred stock, and an
indeterminate number of warrants to purchase debt securities, common stock
or preferred stock and an indeterminate amount of debt securities are
being registered hereunder, but in no event will the aggregate initial
offering price exceed $130,000,000. If any debt securities are issued at
an original issue discount, then the offering price of such debt
securities shall be in such greater principal amount as shall result in an
aggregate initial offering price not to exceed $130,000,000, less the
aggregate dollar amount of all securities previously issued hereunder. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder. The securities registered also
include such indeterminate amount and number of shares of common stock as
may be issued upon conversion of preferred stock or pursuant to the
antidilution provisions of any such securities. The securities registered
also include such indeterminate amount and number of shares of common
stock as may be issued upon exercise of warrants or pursuant to the
antidilution provisions of any such securities. The securities registered
also include such indeterminate amount and number of shares of common
stock and debt securities as may be issued upon conversion of or exchange
for debt securities that provide for conversion or exchange or pursuant to
the antidilution provisions of any such
securities.
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(2)
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Unspecified
pursuant to General Instruction II.D to Form S-3 under the Securities
Act.
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(3)
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Calculated
in accordance with Rule 457(o) under the Securities
Act.
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The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not
permitted.
Subject
to completion, dated August 17, 2009
PROSPECTUS
Advanced
Battery Technologies, Inc.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
We may offer and sell any combination
of common stock, preferred stock, warrants, debt securities, either individually
or in units, with a total value of up to $130,000,000.
This prospectus provides a general
description of securities we may offer and sell from time to time. Each time we
sell those securities, we will provide their specific terms in a supplement to
this prospectus. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read this prospectus and
the applicable prospectus supplement carefully before you invest in any
securities. This prospectus may not be used to consummate a sale of securities
unless accompanied by the applicable prospectus supplement.
We may offer and sell these securities,
from time to time, to or through one or more underwriters, dealers and agents,
or directly to purchasers, on a continuous or delayed basis, at prices and on
other terms to be determined at the time of offering. If we use agents,
underwriters or dealers to sell the securities, we will name them and describe
their compensation in a prospectus supplement.
Our common stock is currently traded on
the NASDAQ Capital Market under the trading symbol “ABAT.” On August
13, 2009 the last reported sale price for our common stock was
$4.49.
Purchase of our common stock involves
substantial risk. Prior to making a decision about investing in our
securities, please review the section entitled “Risk Factors,” which appears on
page 5 of this prospectus, and the section entitled “Risk Factors,” which begins
on page 6 of our Annual Report on Form 10-K/A, as filed with the Securities and
Exchange Commission on April 24, 2009.
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.
The
date of this prospectus
is ,
2009
You should rely only on the
information contained or incorporated by reference in this prospectus. We have
not authorized anyone to provide you with information different from that
contained in this prospectus. We are not making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. The
information contained in this prospectus is accurate only as of the date of this
prospectus.
TABLE
OF CONTENTS
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Page
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Summary
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4
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Risk
Factors
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5
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Where
You Can Find More Information
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5
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Incorporation
of Certain Information by Reference
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5
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Disclosure
Regarding Forward-Looking Statements
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6
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Financial
Ratios
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6
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Use
of Proceeds
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7
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Plan
of Distribution
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7
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Description
of Capital Stock
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9
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Description
of Debt Securities
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11
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Description
of Warrants
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19
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Description
of Units
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20
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Certain
Provisions of Delaware Law; the Company’s Certificate of Incorporation and
Bylaws
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21
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Legal
Matters
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22
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Experts
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22
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ABOUT THIS
PROSPECTUS
This prospectus is part of a
registration statement that we filed with the Securities and Exchange Commission
(the “Commission”) using a “shelf” registration process. Under this shelf
registration process, from time to time, we may sell any combination of the
securities described in this prospectus in one or more offerings, up to a total
dollar amount of $130,000,000. We have provided to you in this prospectus a
general description of the securities we may offer. Each time we sell securities
under this shelf registration process, we will provide a prospectus supplement
that will contain specific information about the terms of the offering. We may
also add, update or change in the prospectus supplement any of the information
contained in this prospectus. To the extent there is a conflict between the
information contained in this prospectus and the prospectus supplement, you
should rely on the information in the prospectus supplement; provided that, if
any statement in one of these documents is inconsistent with a statement in
another document having a later date — for example, a document incorporated by
reference in this prospectus or any prospectus supplement — the statement in the
document having the later date modifies or supersedes the earlier statement. You
should read both this prospectus and any prospectus supplement together with
additional information described under the next heading “Where You Can Find More
Information.”
We have
not authorized any dealer, salesman or other person to give any information or
to make any representations other than those contained or incorporated by
reference in this prospectus and the accompanying prospectus supplement. You
must not rely upon any information or representation not contained or
incorporated by reference in this prospectus or the accompanying prospectus
supplement. This prospectus and the accompanying supplement to this prospectus
do not constitute an offer to sell or the solicitation of an offer to buy any
securities other than the registered securities to which they relate, nor do
this prospectus and the accompanying supplement to this prospectus constitute an
offer to sell or the solicitation of an offer to buy securities in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. You should not assume that the information
contained in this prospectus and the accompanying prospectus supplement is
accurate on any date subsequent to the date set forth on the front cover of this
document or that any information we have incorporated by reference is correct on
any date subsequent to the date of the document incorporated by reference, even
though this prospectus and any accompanying prospectus supplement is delivered
or securities sold on a later date.
THIS PROSPECTUS
MAY NOT BE USED TO OFFER AND SELL SECURITIES UNLESS IT IS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
SUMMARY
The
Securities and Exchange Commission (the “SEC”) allows us to incorporate by
reference certain information contained in the documents that we file with the
SEC. This means that we can disclose important information to you by
referring you to those documents. The information incorporated by
reference is considered to be part of this prospectus. The
information that we file later with the SEC will automatically update this
information. You should read this entire prospectus as well as the
other information and documents incorporated into this prospectus by reference,
including our financial statements and related notes.
As
used in this prospectus, the terms “we,” “our” and “us” refers to Advanced
Battery Technologies, Inc. and its subsidiaries.
Advanced
Battery Technologies, Inc.
Advanced Battery Technologies, Inc.,
through its subsidiary Harbin ZhongQiang Power Tech Co., Ltd., designs,
manufactures and markets rechargeable polymer lithium-ion (“PLI”)
batteries. PLI batteries produce a relatively high average of 3.8
volts per cell, which makes them attractive in terms of both weight and
volume. Additionally, they can be manufactured in very thin
configurations and with large footprints. PLI cells can be configured
in almost any prismatic shape, and can be made thinner than 0.0195 inches (0.5
mm) to fill virtually any shape efficiently. Our products include
rechargeable PLI batteries for electric automobiles, motorcycles, mine-use
lamps, notebook computers, walkie-talkies and other electronic
devices.
In May 2009 Advanced Battery
Technologies acquired 100% ownership of Wuxi ZhongQiang Autocycle Co., Ltd,
which develops and manufactures various types of electric vehicles. Wuxi
ZhongQiang owns three types of products listed in the E-Bike directory, with
more than 20 varieties: electric bikes; agricultural transport vehicles for
practical transportation; sport utility e-vehicles such as scooters, off-road
vehicles, go-karts, snow scooters, sea scooters, as well as underwater propeller
vehicles. Wuxi ZhongQiang products are exported to countries and regions in
Europe, the United States and Asia.
Our U.S. offices are located at 15 West
39
th
Street, Suite 14A, New York, NY 10018;
telephone: 212-391-2752. Our executive offices and battery
manufacturing facilities are located at No. 1 Weiyou Road, Economic &
Technology Development Road, Shuangcheng, Heilongjiang 160100, The People’s
Republic of China; telephone: 86-451-5311-7055. We
maintain an Internet website at www.abat.com.cn. Information
contained in or accessible through our website does not constitute part of this
prospectus.
RISK
FACTORS
An investment in our securities
involves a high degree of risk. The prospectus supplement applicable to each
offering of securities will contain a discussion of the risks applicable to an
investment in our securities. Prior to making a decision about investing in our
securities, you should carefully consider the specific factors discussed under
the heading “Risk Factors” in the applicable prospectus supplement, together
with all of the other information contained or incorporated by reference in the
prospectus supplement or appearing or incorporated by reference in this
prospectus. You should also consider the risks, uncertainties and assumptions
discussed under Item 1A, “Risk Factors,” in our Annual Report on Form
10-K/A (Amendment No. 1) for the fiscal year ended December 31, 2008, which
is incorporated herein by reference, and may be amended, supplemented or
superseded from time to time by other reports we file with the Commission in the
future. The risks and uncertainties we have described are not the only ones we
face. Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also affect our
operations.
WHERE
YOU CAN FIND MORE INFORMATION
This prospectus is part of a
registration statement on Form S-3 that we have filed with the SEC. This
prospectus does not contain all the information set forth in the registration
statement. You can find further information about us in the
registration statement and the exhibits attached to the registration
statement. In addition, we file annual, quarterly and current
reports, proxy statements and other information with the SEC.
You may read and copy any document that
we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information about the operation of the Public Reference Room. Our SEC filings,
including the registration statement, are also available to you on the
Commission's Web site at http://www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
The SEC
allows us to “incorporate by reference” information that we file with it into
our registration statement on Form S-3, of which this prospectus is a
part. This means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus.
We
incorporate by reference into this registration statement and prospectus the
documents listed below, and any future filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus (other than Current Reports or portions thereof furnished under
Item 2.02 or Item 7.01 of Form 8–K):
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the
description of our common stock contained in our registration statement on
Form 8-A/A (Amendment No. 1) filed with the SEC on February 25, 2008,
including any amendments or reports filed for the purposes of updating
this description;
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•
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our
Annual Report on Form 10-K/A (Amendment No. 1) for the year ended
December 31, 2008 filed with the SEC on April 24,
2009;
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•
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our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2009 filed
with the SEC on May 11, 2009 and our Quarterly Report on Form 10-Q for the
quarter ended June 30, 2009 filed with the SEC on August 11, 2009;
and
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•
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our
Current Reports on Form 8-K filed with the SEC on March 3, 2009, April 2,
2009, April 30, 2009, May 4, 2009 (as amended on July 20, 2009), May 28,
2009, June 3, 2009, June 15, 2009, June 23, 2009 (as amended on June 25,
2009), June 26, 2009 and July 6,
2009.
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You may
obtain a copy of these filings at no cost, by writing or by telephone us at the
following address or telephone number:
Advanced
Battery Technologies, Inc.
15 West
39
th
Street, Suite 14A
New York,
NY 10018
212-391-2752
Attn: Dan
Chang
Any
statement contained in a document incorporated or deemed to be incorporated by
reference in this prospectus will be deemed modified, superseded or replaced for
purposes of this prospectus to the extent that a statement contained in this
prospectus or in any subsequently filed document that also is or is deemed to be
incorporated by reference in this prospectus modifies, supersedes or replaces
such statement. Any statement so modified, superseded or replaced, will not be
deemed, except as so modified, superseded or replaced, to constitute a part of
this prospectus.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference into this prospectus
contain certain “forward-looking statements” within the meaning of the “safe
harbor” provisions of the Private Securities Litigation Reform Act of
1995. These forward-looking statements concern our financial
condition, results of operations and business. Words such as “anticipates,”
“expects,” “intends,” “plans,” “predicts,” “believes,” “seeks,” “estimates,”
“could,” “would,” “will,” “may,” “can,” “continue,” “potential,” “should,” and
the negative of these terms or other comparable terminology often identify
forward-looking statements. Statements in this prospectus and the other
documents incorporated by reference that are not historical facts are
“forward-looking statements” for the purpose of the safe harbor provided by
Section 21E of the Securities Exchange Act of 1934, as amended, and
Section 27A of the Securities Act. These forward-looking statements are not
guarantees of future performance, and are subject to risks and uncertainties
that could cause actual results to differ materially from the results
contemplated by the forward-looking statements. These risks and
uncertainties include the risks discussed in this prospectus, in our Annual
Report on Form 10-K/A for fiscal year ended December 31, 2008 in Section 1A
entitled “Risk Factors,” and the risks that will be disclosed from time to time
in our future SEC reports. Many of the important factors that will determine
these results are beyond our ability to control or predict. You are cautioned
not to put undue reliance on any forward-looking statements, which speak only as
of the date of this prospectus or, in the case of documents incorporated by
reference, as of the date of such documents. Except as otherwise required by
law, we do not assume any obligation to publicly update or release any revisions
to these forward-looking statements to reflect events or circumstances after the
date of this prospectus or to reflect the occurrence of unanticipated
events.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table shows our ratio of
earnings to fixed charges and the ratio of our combined fixed charges and
preference dividends to earnings for each of the periods indicated.
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Year
Ended December 31,
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Six
Months
Ended
June 30
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2004
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2005
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2006
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2007
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2008
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2009
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Ratio
of Earnings to Fixed Charges(1)
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--
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--
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38.7x
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(2)
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(2)
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80.6x
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Ratio
of Combined Fixed Charges and Preference Dividends to
Earnings(1)
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--
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4.8x
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0.03x
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(2)
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(2)
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0.01x
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(1)
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For purposes of these
calculations, earnings represent earnings from continuous operations
before income taxes and before income (losses) from equity method
investments plus fixed charges. Fixed charges include interest
expense, whether expensed or capitalized, and (b) the portion of operating
rental expense which management believes is representative of the interest
component of rental expense. Earnings were insufficient to
cover fixed charges by $2,349,704 in 2004 and by $239,937 in
2005.
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(2)
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We recorded no fixed charges
during the years ended December 31, 2007 or 2008. Earnings in
2007 were $10,205,406 and in 2008 were
$18,909,234.
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USE
OF PROCEEDS
We will retain broad discretion over
the use of the net proceeds from the sale of the securities offered hereby.
Unless otherwise indicated in any prospectus supplement, we intend to use the
net proceeds from the sale of securities under this prospectus for general
corporate purposes, which may include research and development, capital
expenditures, working capital and general and administrative expenses. We may
also use a portion of the net proceeds to acquire or invest in businesses,
products and technologies that are complementary to our own, although we have no
current plans, commitments or agreements with respect to any acquisitions as of
the date of this prospectus.
PLAN OF
DISTRIBUTION
We may sell the securities
covered by this prospectus to one or more underwriters for public offering and
sale by them, and may also sell the securities to investors directly or through
agents. We will name any underwriter or agent involved in the offer and sale of
securities in the applicable prospectus supplement. We have reserved the right
to sell or exchange securities directly to investors on our own behalf in
jurisdictions where we are authorized to do so. We may distribute the securities
from time to time in one or more transactions:
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at
a fixed price or prices, which may be
changed;
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·
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at
market prices prevailing at the time of
sale;
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at
prices related to such prevailing market prices;
or
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We may solicit directly offers to
purchase the securities being offered by this prospectus. We may also designate
agents to solicit offers to purchase the securities from time to time. We will
name in a prospectus supplement any agent involved in the offer or sale of our
securities. Unless otherwise indicated in a prospectus supplement, an agent will
be acting on a best efforts basis, and a dealer will purchase securities as a
principal for resale at varying prices to be determined by the
dealer.
If we utilize an underwriter in the
sale of the securities being offered by this prospectus, we will execute an
underwriting agreement with the underwriter at the time of sale and we will
provide the name of any underwriter in the prospectus supplement that the
underwriter will use to make resales of the securities to the public. In
connection with the sale of the securities, we, or the purchasers of securities
for whom the underwriter may act as agent, may compensate the underwriter in the
form of underwriting discounts or commissions. The underwriter may sell the
securities to or through dealers, and those dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters or
commissions from the purchasers for whom they may act as agent.
We will provide in the applicable
prospectus supplement any compensation we pay to underwriters, dealers or agents
in connection with the offering of the securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers.
Underwriters, dealers and agents participating in the distribution of the
securities may be deemed to be underwriters within the meaning of the Securities
Act, and any discounts and commissions received by them and any profit realized
by them on resale of the securities may be deemed to be underwriting discounts
and commissions. We may enter into agreements to indemnify underwriters, dealers
and agents against civil liabilities, including liabilities under the Securities
Act, and to reimburse them for certain expenses. We may grant underwriters who
participate in the distribution of our securities under this prospectus an
option to purchase additional securities to cover any over-allotments in
connection with the distribution.
The securities we offer under this
prospectus may or may not be listed on a national securities exchange. To
facilitate the offering of securities, certain persons participating in the
offering may engage in transactions that stabilize, maintain or otherwise affect
the price of the securities. This may include over-allotments or short sales of
the securities, which involves the sale by persons participating in the offering
of more securities than we sold to them. In these circumstances, these persons
would cover such over-allotments or short positions by making purchases in the
open market or by exercising their over-allotment option. In addition, these
persons may stabilize or maintain the price of the securities by bidding for or
purchasing securities in the open market or by imposing penalty bids, whereby
selling concessions allowed to dealers participating in the offering may be
reclaimed if securities sold by them are repurchased in connection with
stabilization transactions. The effect of these transactions may be to stabilize
or maintain the market price of the securities at a level above that which might
otherwise prevail in the open market. These transactions may be discontinued at
any time.
We may enter into derivative
transactions with third parties, or sell securities not covered by this
prospectus to third parties in privately negotiated transactions. If the
applicable prospectus supplement indicates, in connection with those
derivatives, the third parties may sell securities covered by this prospectus
and the applicable prospectus supplement, including short sale transactions. If
so, the third party may use securities pledged by us or borrowed from us or
others to settle those sales or to close out any related open borrowings of
stock, and they may use securities received from us in settlement of those
derivatives to close out any related open borrowings of stock. The third party
in these sale transactions will be an underwriter and will be identified in the
applicable prospectus supplement or in a post-effective amendment to the
registration statement relating to this prospectus. In addition, we may
otherwise loan or pledge securities to a financial institution or other third
party that in turn may sell the securities short using this prospectus. The
financial institution or other third party may transfer its economic short
position to investors in our securities or in connection with a concurrent
offering of other securities.
To the extent required pursuant to Rule
424(b) of the Securities Act, or other applicable rule, we will file a
prospectus supplement to describe the terms of any offering of our securities
covered by this prospectus. The prospectus supplement will
disclose:
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The
terms of the offer;
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·
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The
names of any underwriters, including any managing underwriters, as well as
any dealers or agents;
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The
purchase price of the securities from
us;
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Any
delayed delivery arrangements;
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Any
underwriting discounts, commissions or other items constituting
underwriters’ compensation and any commissions paid to
agents;
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Any
initial public offering price; and
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·
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Other
facts material to the transaction.
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We
will bear substantially all of the costs, expenses and fees in connection with
the registration of our securities under this prospectus. The underwriters,
dealers and agents may engage in transactions with us, or perform services for
us, in the ordinary course of business.
DESCRIPTION OF CAPITAL
STOCK
General
As of the date of this prospectus, our
authorized capital stock consists of 155,000,000 shares. Those shares consist of
150,000,000 shares of common stock, par value of $0.001 per share, and 5,000,000
shares of preferred stock. The only equity securities currently outstanding are
approximately 61,883,591 shares of common stock and 500 shares of Series E
Preferred Stock. Our common stock is traded on the Nasdaq Capital
Market under the symbol “ABAT”.
The following description summarizes
the material terms of our capital stock. This summary is, however, subject to
the provisions of our certificate of incorporation and bylaws. For greater
detail about our capital stock, please refer to our certificate of incorporation
and bylaws.
Common Stock
Each holder of common stock is entitled
to one vote for each share held on all matters to be voted upon by the
stockholders. At any meeting of the stockholders, a quorum as to any
matter shall consist of a majority of the votes entitled to be cast on the
matter, except where a larger quorum is required by law.
Holders of our common stock are
entitled to receive dividends declared by our board of directors out of funds
legally available for the payment of dividends, subject to the rights, if any,
of preferred stockholders. In the event of our liquidation, dissolution or
winding up, holders of common stock are entitled to share ratably in all of our
assets remaining after we pay our liabilities and distribute the liquidation
preference of any then outstanding preferred stock. The rights, preferences and
privileges of holders of common stock are subject to, and may be adversely
affected by, the rights of holders of any series of preferred stock that we may
designate and issue in the future. Holders of common stock have no preemptive or
other subscription or conversion rights. There are no redemption or sinking fund
provisions applicable to the common stock. All outstanding shares of our common
stock are fully paid and nonassessable, and any shares of our common stock to be
issued upon an offering pursuant to this prospectus and the related prospectus
supplement will be fully paid and nonassessable upon issuance.
The transfer agent and registrar for
our common stock is Continental Stock Transfer & Trust Company.
Series E Preferred Stock and Series F
Preferred
Stock
In June 2009 the Company issued 10,000
shares of Series E Preferred Stock. On the date of this prospectus,
there were 500 shares of Series E Preferred Stock outstanding. Each
share of Series E Preferred Stock may be converted by the holder into
approximately 263.85 common shares, so the 500 shares currently outstanding
could be converted into131,926 common shares. Each share of Series E
Preferred Stock is entitled to a $1000 preference in the event of a liquidation
of the Company. The holder of a share of Series E Preferred Stock is
entitled to cast votes equal in number to the shares of common stock into which
the Series E Preferred share is convertible.
Preferred Stock
The
following description of preferred stock and the description of the terms of any
particular series of preferred stock that we choose to issue hereunder and that
will be set forth in the related prospectus supplement are not complete. These
descriptions are qualified in their entirety by reference to the certificate of
designation relating to that series. The rights, preferences, privileges and
restrictions of the preferred stock of each series will be fixed by the
certificate of designation relating to that series.
The
board of directors has the authority, without stockholder approval, subject to
limitations prescribed by law, to provide for the issuance of the shares of
preferred stock in one or more series, and by filing a certificate pursuant to
the applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each series and the
qualifications, limitations or restrictions, including, but not limited to, the
following:
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the number of shares constituting
that series;
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dividend rights and
rates;
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voting
rights;
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conversion
terms;
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rights
and terms of redemption (including sinking fund provisions);
and
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rights of the series in the event
of liquidation, dissolution or winding
up.
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All
shares of preferred stock offered hereby will, when issued, be fully paid and
nonassessable and will not have any preemptive or similar rights. Our board of
directors could authorize the issuance of shares of preferred stock with terms
and conditions that could have the effect of discouraging a takeover or other
transaction that might involve a premium price for holders of the shares or
which holders might believe to be in their best interests.
Delaware law provides that the holders
of preferred stock will have the right to vote separately as a class on any
proposal involving fundamental changes in the rights of holders of that
preferred stock. This right is in addition to any voting rights that may be
provided for in the applicable certificate of designation.
We
will set forth in a prospectus supplement relating to the series of preferred
stock being offered the following items:
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the title and stated value of the
preferred stock;
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the number of shares of the
preferred stock offered, the liquidation preference per share and the
offering price of the preferred
stock;
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the dividend rate(s), period(s)
and/or payment date(s) or method(s) of calculation applicable to the
preferred stock;
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whether dividends are cumulative
or non-cumulative and, if cumulative, the date from which dividends on the
preferred stock will
accumulate;
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the procedures for any auction and
remarketing, if any, for the preferred
stock;
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the provisions for a sinking fund,
if any, for the preferred
stock;
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the provision for redemption, if
applicable, of the preferred
stock;
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any listing of the preferred stock
on any securities exchange;
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the terms and conditions, if
applicable, upon which the preferred stock will be convertible into common
stock, including the conversion price (or manner of calculation) and
conversion period;
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voting rights, if any, of the
preferred stock;
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a discussion of any material
and/or special
United
States
federal income
tax considerations applicable to the preferred stock;
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the relative ranking and
preferences of the preferred stock as to dividend rights and rights upon
the liquidation, dissolution or winding up of our
affairs;
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any limitations on issuance of any
class or series of preferred stock ranking senior to or on a parity with
the class or series of preferred stock as to dividend rights and rights
upon liquidation, dissolution or winding up of our affairs;
and
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any other specific terms,
preferences, rights, limitations or restrictions of the preferred
stock.
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The
transfer agent and registrar for any series of preferred stock will be set forth
in the applicable prospectus supplement.
DESCRIPTION OF DEBT
SECURITIES
This description is a summary of the
material provisions of the debt securities and the related indenture. We urge
you to read the form of indenture filed as an exhibit to the registration
statement of which this prospectus is a part because the indenture, and not this
description, governs your rights as a holder of debt securities. References in
this prospectus to an “indenture” refer to the particular indenture under which
we may issue a series of debt securities.
General
The
terms of each series of debt securities will be established by or pursuant to a
resolution of our board of directors and set forth or determined in the manner
provided in an officers’ certificate or by a supplemental indenture. Debt
securities may be issued in separate series without limitation as to aggregate
principal amount. We may specify a maximum aggregate principal amount for the
debt securities of any series. The particular terms of each series of debt
securities will be described in a prospectus supplement relating to such series,
including any pricing supplement. The prospectus supplement will set forth
specific terms relating to some or all of the following:
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any limit on the aggregate
principal amount;
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the person who shall be entitled
to receive interest, if other than the record holder on the record
date;
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the date the principal will be
payable;
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the interest rate, if any, the
date interest will accrue, the interest payment dates and the regular
record dates;
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the place where payments may be
made;
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any mandatory or optional
redemption provisions;
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if applicable, the method for
determining how the principal, premium, if any, or interest will be
calculated by reference to an index or
formula;
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if other than
U.S.
currency, the currency or
currency units in which principal, premium, if any, or interest will be
payable and whether we or the holder may elect payment to be made in a
different currency;
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the portion of the principal
amount that will be payable upon acceleration of stated maturity, if other
than the entire principal
amount;
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any defeasance provisions if
different from those described below under “Satisfaction and Discharge;
Defeasance”;
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any conversion or exchange
provisions;
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any obligation to redeem or
purchase the debt securities pursuant to a sinking
fund;
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whether the debt securities will
be issuable in the form of a global
security;
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any subordination provisions, if
different from those described below under
“Subordination”;
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any deletions of, or changes or
additions to, the events of default or covenants;
and
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any other specific terms of such
debt securities.
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Unless
otherwise specified in the prospectus supplement, the debt securities will be
registered debt securities. Debt securities may be sold at a substantial
discount below their stated principal amount, bearing no interest or interest at
a rate which at the time of issuance is below market rates.
Exchange and
Transfer
Debt
securities may be transferred or exchanged at the office of the security
registrar or at the office of any transfer agent designated by us.
We
will not impose a service charge for any transfer or exchange, but we may
require holders to pay any tax or other governmental charges associated with any
transfer or exchange.
In
the event of any potential redemption of debt securities of any series, we will
not be required to:
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issue, register the transfer of,
or exchange, any debt security of that series during a period beginning at
the opening of business 15 days before the day of mailing of a notice
of redemption and ending at the close of business on the day of the
mailing; or
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register the transfer of or
exchange any debt security of that series selected for redemption, in
whole or in part, except the unredeemed portion being redeemed in
part.
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We
may initially appoint the trustee as the security registrar. Any transfer
agent, in addition to the security registrar, initially designated by us
will be named in the prospectus supplement. We may designate additional
transfer agents or change transfer agents or change the office of the
transfer agent. However, we will be required to maintain a transfer agent
in each place of payment for the debt securities of each
series.
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Global Securities
The
debt securities of any series may be represented, in whole or in part, by one or
more global securities. Each global security will:
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be registered in the name of a
depositary that we will identify in a prospectus
supplement;
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be deposited with the depositary
or nominee or custodian; and
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bear any required
legends.
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No
global security may be exchanged in whole or in part for debt securities
registered in the name of any person other than the depositary or any nominee
unless:
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the depositary has notified us
that it is unwilling
or unable to continue as
depositary or has ceased to be qualified to act as
depositary;
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an event of default is continuing;
or
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the Company executes and delivers
to the trustee an officers’ certificate stating that the global security
is exchangeable.
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As
long as the depositary, or its nominee, is the registered owner of a global
security, the depositary or nominee will be considered the sole owner and holder
of the debt securities represented by the global security for all purposes under
the indenture. Except in the above limited circumstances, owners of beneficial
interests in a global security:
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will not be entitled to have the
debt securities registered in their
names;
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will not be entitled to physical
delivery of certificated debt securities;
and
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will not be considered to be
holders of those debt securities under the
indentures.
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Payments
on a global security will be made to the depositary or its nominee as the holder
of the global security. Some jurisdictions have laws that require that certain
purchasers of securities take physical delivery of such securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a
global security.
Institutions
that have accounts with the depositary or its nominee are referred to as
“participants.” Ownership of beneficial interests in a global security will be
limited to participants and to persons that may hold beneficial interests
through participants. The depositary will credit, on its book-entry registration
and transfer system, the respective principal amounts of debt securities
represented by the global security to the accounts of its
participants.
Ownership
of beneficial interests in a global security will be shown on and effected
through records maintained by the depositary, with respect to participants’
interests, or any participant, with respect to interests of persons held by
participants on their behalf.
Payments,
transfers and exchanges relating to beneficial interests in a global security
will be subject to policies and procedures of the depositary.
The
depositary policies and procedures may change from time to time. Neither we nor
the trustee will have any responsibility or liability for the depositary’s or
any participant’s records with respect to beneficial interests in a global
security.
Payment and Paying
Agent
The
provisions of this paragraph will apply to the debt securities unless otherwise
indicated in the prospectus supplement. Payment of interest on a debt security
on any interest payment date will be made to the person in whose name the debt
security is registered at the close of business on the regular record date.
Payment on debt securities of a particular series will be payable at the office
of a paying agent or paying agents designated by us. However, at our option, we
may pay interest by mailing a check to the record holder. The corporate trust
office will be designated as our sole paying agent.
We
may also name any other paying agents in the prospectus supplement. We may
designate additional paying agents, change paying agents or change the office of
any paying agent. However, we will be required to maintain a paying agent in
each place of payment for the debt securities of a particular
series.
All
moneys paid by us to a paying agent for payment on any debt security which
remain unclaimed at the end of two years after such payment was due will be
repaid to us. Thereafter, the holder may look only to us for such
payment.
Consolidation, Merger and Sale of
Assets
Except
as otherwise set forth in the prospectus supplement, while any debt securities
issued pursuant to this prospectus remain outstanding, we may not consolidate
with or merge into any other person, in a transaction in which we are not the
surviving corporation, or convey, transfer or lease our properties and assets
substantially as an entirety to, any person, unless:
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the successor, if any, is a U.S.
corporation, limited liability company, partnership, trust or other
entity;
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the successor assumes our
obligations on the debt securities and under the
indenture;
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immediately after giving effect to
the transaction, no default or event of default shall have occurred and be
continuing; and
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certain other conditions are
met.
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Events of Default
Unless
we inform you otherwise in the prospectus supplement, the indenture will define
an event of default with respect to any series of debt securities as one or more
of the following events:
(1)
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failure to pay principal of or any premium on any debt
security of that series when due;
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(2)
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failure to pay any interest on any debt security of that
series for 30 days when due;
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(3)
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failure to deposit any sinking fund payment when
due;
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(4)
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failure to perform any other covenant in the indenture
continued for 90 days after being given the notice required in the
indenture;
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(5)
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our bankruptcy, insolvency or reorganization;
and
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any other event of default specified in the prospectus
supplement.
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An
event of default of one series of debt securities is not necessarily an event of
default for any other series of debt securities.
If
an event of default, other than an event of default described in clause
(5) above, shall occur and be continuing, either the trustee or the holders
of at least 25% in aggregate principal amount of the outstanding securities of
that series may declare the principal amount of the debt securities of that
series to be due and payable immediately.
If
an event of default described in clause (5) above shall occur, the
principal amount of all the debt securities of that series will automatically
become immediately due and payable. Any payment by us on subordinated debt
securities following any such acceleration will be subject to the subordination
provisions described below under “Subordinated Debt Securities.”
After
acceleration the holders of a majority in aggregate principal amount of the
outstanding securities of that series may, under certain circumstances, rescind
and annul such acceleration if all events of default, other than the non-payment
of accelerated principal, or other specified amount, have been cured or
waived.
Other
than the duty to act with the required care during an event of default, the
trustee will not be obligated to exercise any of its rights or powers at the
request of the holders unless the holders shall have offered to the trustee
reasonable indemnity. Generally, the holders of a majority in aggregate
principal amount of the outstanding debt securities of any series will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the trustee or exercising any trust or power conferred on
the trustee.
A
holder will not have any right to institute any proceeding under the indentures,
or for the appointment of a receiver or a trustee, or for any other remedy under
the indentures, unless:
(1)
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the holder has previously given to
the trustee written notice of a continuing event of default with respect
to the debt securities of that
series;
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(2)
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the holders of at least 25% in
aggregate principal amount of the outstanding debt securities of that
series have made a written request and have offered reasonable indemnity
to the trustee to institute the proceeding;
and
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the trustee has failed to
institute the proceeding and has not received direction inconsistent with
the original request from the holders of a majority in aggregate principal
amount of the outstanding debt securities of that series within 90 days
after the original request.
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(4)
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Holders
may, however, sue to enforce the payment of principal or interest on any
debt security on or after the due date without following the procedures
listed in (1) through
(3) above.
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Modification and
Waiver
Except
as provided in the next two succeeding paragraphs, the applicable trustee and we
may make modifications and amendments to the indentures (including, without
limitation, through consents obtained in connection with a tender offer or
exchange offer for, outstanding securities) and may waive any existing default
or event of default (including, without limitation, through consents obtained in
connection with a tender offer or exchange offer for, outstanding securities)
with the consent of the holders of a majority in aggregate principal amount of
the outstanding securities of each series affected by the modification or
amendment.
However,
neither we nor the trustee may make any amendment or waiver without the consent
of the holder of each outstanding security of that series affected by the
amendment or waiver if such amendment or waiver would, among other things:
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change the amount of securities
whose holders must consent to an amendment, supplement or
waiver;
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change the stated maturity of any
debt security;
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reduce the principal on any debt
security or reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund;
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reduce the principal of an
original issue discount security on acceleration of
maturity;
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reduce the rate of interest or
extend the time for payment of interest on any debt
security;
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make a principal or interest
payment on any debt security in any currency other than that stated in the
debt security;
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impair the right to enforce any
payment after the stated maturity or redemption
date;
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waive any default or event of
default in payment of the principal of, premium or interest on any debt
security (except certain rescissions of acceleration);
or
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waive a redemption payment or
modify any of the redemption provisions of any debt
security;
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Notwithstanding
the preceding, without the consent of any holder of outstanding securities, we
and the trustee may amend or supplement the indentures:
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to provide for the issuance of and
establish the form and terms and conditions of debt securities of any
series as permitted by the
indenture;
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to provide for uncertificated
securities in addition to or in place of certificated
securities;
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to provide for the assumption of
our obligations to holders of any debt security in the case of a merger,
consolidation, transfer or sale of all or substantially all of our
assets;
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to make any change that does not
adversely affect the legal rights under the indenture of any such
holder;
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to comply with requirements of the
Commission in order to effect or maintain the qualification of an
indenture under the Trust Indenture Act;
or
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to evidence and provide for the
acceptance of appointment by a successor trustee with respect to the debt
securities of one or more series and to add to or change any of the
provisions of the indenture as shall be necessary to provide for or
facilitate the administration of the trusts by more than one
Trustee.
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The
consent of holders is not necessary under the indentures to approve the
particular form of any proposed amendment. It is sufficient if such consent
approves the substance of the proposed amendment.
Satisfaction and Discharge;
Defeasance
We
may be discharged from our obligations on the debt securities of any series that
have matured or will mature or be redeemed within one year if we deposit with
the trustee enough cash to pay the entire principal, interest and any premium
due to the stated maturity date or redemption date of the debt
securities.
Each
indenture contains a provision that permits us to elect:
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to be discharged from all of our
obligations, subject to limited exceptions, with respect to any series of
debt securities then outstanding;
and/or
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to be released from our
obligations under the following covenants and from the consequences of an
event of default resulting from a breach of certain covenants, including
covenants as to payment of taxes and maintenance of corporate
existence.
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To make either of the above elections,
we must deposit in trust with the trustee enough money to pay in full the
principal and interest on the debt securities. This amount may be made in cash
and/or U.S. government obligations. As a condition to either of the above
elections, we must deliver to the trustee an opinion of counsel that the holders
of the debt securities will not recognize income, gain or loss for federal
income tax purposes as a result of the action.
If
any of the above events occurs, the holders of the debt securities of the series
will not be entitled to the benefits of the indenture, except for the rights of
holders to receive payments on debt securities or the registration of transfer
and exchange of debt securities and replacement of lost, stolen or mutilated
debt securities.
Notices
Notices
to holders will be given by mail to the addresses of the holders in the security
register.
Governing Law
The
indentures and the debt securities will be governed by, and construed under, the
law of the State of New York.
Regarding the
Trustee
The
indenture limits the right of the trustee, should it become a creditor of us, to
obtain payment of claims or secure its claims.
The
trustee is permitted to engage in certain other transactions. However, if the
trustee acquires any conflicting interest, and there is a default under the debt
securities of any series for which it is trustee, the trustee must eliminate the
conflict or resign.
Subordination
Payment
on subordinated debt securities will, to the extent provided in the indenture,
be subordinated in right of payment to the prior payment in full of all of our
senior indebtedness (except that holders of the notes may receive and retain
(i) permitted junior securities and (ii) payments made from the trust
described under “Satisfaction and Discharge; Defeasance”). Any subordinated debt
securities also are effectively subordinated to all debt and other liabilities,
including lease obligations, if any.
Upon
any distribution of our assets upon any dissolution, winding up, liquidation or
reorganization, the payment of the principal of and interest on subordinated
debt securities will be subordinated in right of payment to the prior payment in
full in cash or other payment satisfactory to the holders of senior
indebtedness. In the event of any acceleration of subordinated debt securities
because of an event of default, the holders of any senior indebtedness would be
entitled to payment in full in cash or other payment satisfactory to such
holders of all senior indebtedness obligations before the holders of
subordinated debt securities are entitled to receive any payment or
distribution, except for certain payments made by the trust described under
“Satisfaction and Discharge; Defeasance.” The indenture requires us or the
trustee to promptly notify holders of designated senior indebtedness if payment
of subordinated debt securities is accelerated because of an event of default.
We
may not make any payment on subordinated debt securities, including upon
redemption at the option of the holder of any subordinated debt securities or at
our option, if:
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a default in the payment of the
principal, premium, if any, interest, rent or other obligations in respect
of designated senior indebtedness occurs and is continuing beyond any
applicable period of grace (called a “payment default”);
or
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a default other than a payment
default on any designated senior indebtedness occurs and is continuing
that permits holders of designated senior indebtedness to accelerate its
maturity, and the trustee receives notice of such default (called a
“payment blockage notice) from us or any other person permitted to give
such notice under the indenture (called a “non-payment
default”).
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We may resume payments and
distributions on subordinated debt securities:
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in the case of a payment default,
upon the date on which such default is cured or waived or ceases to exist;
and
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in the case of a non-payment
default, 179 days after the date on which the payment blockage notice
is received by the trustee, if the maturity of the designated senior
indebtedness has not been
accelerated.
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No new period of payment blockage may
be commenced pursuant to a payment blockage notice unless 365 days have
elapsed since the initial effectiveness of the immediately prior payment
blockage notice and all scheduled payments of principal, premium, if any, and
interest on the notes that have come due have been paid in full in cash. No
non-payment default that existed or was continuing on the date of delivery of
any payment blockage notice shall be the basis for any later payment blockage
notice.
If
the trustee or any holder of the notes receives any payment or distribution of
our assets in contravention of the subordination provisions on subordinated debt
securities before all senior indebtedness is paid in full in cash, property or
securities, including by way of set-off, or other payment satisfactory to
holders of senior indebtedness, then such payment or distribution will be held
in trust for the benefit of holders of senior indebtedness or their
representatives to the extent necessary to make payment in full in cash or
payment satisfactory to the holders of senior indebtedness of all unpaid senior
indebtedness.
In
the event of our bankruptcy, dissolution or reorganization, holders of senior
indebtedness may receive more, ratably, and holders of subordinated debt
securities may receive less, ratably, than our other creditors (including our
trade creditors). This subordination will not prevent the occurrence of any
event of default under the indenture.
We
are not prohibited from incurring debt, including senior indebtedness, under the
indenture. We may from time to time incur additional debt, including senior
indebtedness.
We are obligated to pay reasonable compensation
to the trustee and to indemnify the trustee against certain losses, liabilities
or expenses incurred by the trustee in connection with its duties under the
indenture. The trustee’s claims for these payments will generally be senior to
those of noteholders in respect of all funds collected or held by the
trustee.
Certain
Definitions
As
used in this Prospectus, “indebtedness” means:
(
1)
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all indebtedness,
obligations and other liabilities for borrowed money, including
overdrafts, foreign exchange contracts, currency exchange agreements,
interest rate protection agreements, and any loans or advances from banks,
or evidenced by bonds, debentures, notes or similar instruments, other
than any account payable or other accrued current liability or obligation
incurred in the ordinary course of business in connection with the
obtaining of materials or
services;
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(2)
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all reimbursement
obligations and other liabilities with respect to letters of credit, bank
guarantees or bankers’
acceptances;
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(3)
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all obligations and
liabilities in respect of leases required in conformity with generally
accepted accounting principles to be accounted for as capitalized lease
obligations on our balance
sheet;
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(4)
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all obligations and other
liabilities under any lease or related document in connection with the
lease of real property which provides that we are contractually obligated
to purchase or cause a third party to purchase the leased property and
thereby guarantee a minimum residual value of the leased property to the
lessor and our obligations under the lease or related document to purchase
or to cause a third party to purchase the leased
property;
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(5)
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all obligations with respect
to an interest rate or other swap, cap or collar agreement or other
similar instrument or agreement or foreign currency hedge, exchange,
purchase or other similar instrument or
agreement;
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(6)
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all direct or indirect guaranties
or similar agreements in respect of, and our obligations or liabilities to
purchase, acquire or otherwise assure a creditor against loss in respect
of, indebtedness, obligations or liabilities of others of the type
described in (1) through
(5) above;
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(7)
|
any indebtedness or other
obligations described in (1) through (6) above secured by any
mortgage, pledge, lien or other encumbrance existing on property which is
owned or held by us; and
|
(8)
|
any and all refinancings,
replacements, deferrals, renewals, extensions and refundings of, or
amendments, modifications or supplements to, any indebtedness, obligation
or liability of the kind described in clauses (1) through
(7) above.
|
As
used in this Prospectus, “permitted junior securities” means (i) equity
interests in Advanced Battery Technologies, Inc.; or (ii) debt securities
of Advanced Battery Technologies, Inc. that are subordinated to all senior
indebtedness and any debt securities issued in exchange for senior indebtedness
to substantially the same extent as, or to a greater extent than the notes are
subordinated to senior indebtedness under the indenture.
As
used in this Prospectus, “senior indebtedness” means the principal, premium, if
any, interest, including any interest accruing after bankruptcy, and rent or
termination payment on or other amounts due on our current or future
indebtedness, whether created, incurred, assumed, guaranteed or in effect
guaranteed by us, including any deferrals, renewals, extensions, refundings,
amendments, modifications or supplements to the above. However, senior
indebtedness does not include:
|
·
|
indebtedness that expressly
provides that it shall not be senior in right of payment to subordinated
debt securities or expressly provides that it is on the same basis or
junior to subordinated debt
securities;
|
|
·
|
our indebtedness to any of our
majority-owned subsidiaries;
and
|
|
·
|
subordinated debt
securities.
|
DESCRIPTION OF
WARRANTS
General
We may issue warrants for the purchase
of our debt securities, preferred stock or common stock, or any combination
thereof. Warrants may be issued independently or together with our debt
securities, preferred stock or common stock and may be attached to or separate
from any offered securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between us and a bank or trust
company, as warrant agent. The warrant agent will act solely as our agent in
connection with the warrants. The warrant agent will not have any obligation or
relationship of agency or trust for or with any holders or beneficial owners of
warrants. This summary of certain provisions of the warrants is not complete.
For the terms of a particular series of warrants, you should refer to the
prospectus supplement for that series of warrants and the warrant agreement for
that particular series.
Debt warrants
The
prospectus supplement relating to a particular issue of warrants to purchase
debt securities will describe the terms of the debt warrants, including the
following:
|
·
|
the title of the debt
warrants;
|
|
·
|
the offering price for the debt
warrants, if any;
|
|
·
|
the aggregate number of the debt
warrants;
|
|
·
|
the designation and terms of the
debt securities, including any conversion rights, purchasable upon
exercise of the debt
warrants;
|
|
·
|
if applicable, the date from and
after which the debt warrants and any debt securities issued with them
will be separately
transferable;
|
|
·
|
the principal amount of debt
securities that may be purchased upon exercise of a debt warrant and the
exercise price for the warrants, which may be payable in cash, securities
or other property;
|
|
·
|
the dates on which the right to
exercise the debt warrants will commence and
expire;
|
|
·
|
if applicable, the minimum or
maximum amount of the debt warrants that may be exercised at any one
time;
|
|
·
|
whether the debt warrants
represented by the debt warrant certificates or debt securities that may
be issued upon exercise of the debt warrants will be issued in registered
or bearer form;
|
|
·
|
information with respect to
book-entry procedures, if any; the currency or currency units in which the
offering price, if any, and the exercise price are
payable;
|
|
·
|
if applicable, a discussion of
material
U.S.
federal income tax
considerations;
|
|
·
|
the antidilution provisions of the
debt warrants, if any;
|
|
·
|
the redemption or call provisions,
if any, applicable to the debt
warrants;
|
|
·
|
any provisions with respect to the
holder’s right to require us to repurchase the warrants upon a change in
control or similar event;
and
|
|
·
|
any additional terms of the debt
warrants, including procedures, and limitations relating to the exchange,
exercise and settlement of the debt
warrants.
|
Debt
warrant certificates will be exchangeable for new debt warrant certificates of
different denominations. Debt warrants may be exercised at the corporate trust
office of the warrant agent or any other office indicated in the prospectus
supplement. Prior to the exercise of their debt warrants, holders of debt
warrants will not have any of the rights of holders of the debt securities
purchasable upon exercise and will not be entitled to payment of principal or
any premium, if any, or interest on the debt securities purchasable upon
exercise.
Equity warrants
The
prospectus supplement relating to a particular series of warrants to purchase
our common stock or preferred stock will describe the terms of the warrants,
including the following:
|
·
|
the title of the
warrants;
|
|
·
|
the offering price for the
warrants, if any;
|
|
·
|
the aggregate number of
warrants;
|
|
·
|
the designation and terms of the
common stock or preferred stock that may be purchased upon exercise of the
warrants;
|
|
·
|
if applicable, the designation and
terms of the securities with which the warrants are issued and the number
of warrants issued with each
security;
|
|
·
|
if applicable, the date from and
after which the warrants and any securities issued with the warrants will
be separately transferable;
|
|
·
|
the number of shares of common
stock or preferred stock that may be purchased upon exercise of a warrant
and the exercise price for the
warrants;
|
|
·
|
the dates on which the right to
exercise the warrants shall commence and
expire;
|
|
·
|
if applicable, the minimum or
maximum amount of the warrants that may be exercised at any one
time;
|
|
·
|
the currency or currency units in
which the offering price, if any, and the exercise price are
payable;
|
|
·
|
if applicable, a discussion of
material
U.S.
federal income tax
considerations;
|
|
·
|
the antidilution provisions of the
warrants, if any;
|
|
·
|
the redemption or call provisions,
if any, applicable to the
warrants;
|
|
·
|
any provisions with respect to
holder’s right to require us to repurchase the warrants upon a change in
control or similar event;
and
|
|
·
|
any additional terms of the
warrants, including procedures, and limitations relating to the exchange,
exercise and settlement of the
warrants.
|
Holders
of equity warrants will not be entitled:
|
·
|
to vote, consent or receive
dividends;
|
|
·
|
receive notice as stockholders
with respect to any meeting of stockholders for the election of our
directors or any other matter;
or
|
|
·
|
exercise any rights as
stockholders of
Advanced Battery Technologies,
Inc.
|
DESCRIPTION OF
UNITS
We may
issue, in one more series, units consisting of common stock, preferred stock,
debt securities and/or warrants for the purchase of common stock, preferred
stock and/or debt securities in any combination. While the terms we have
summarized below will apply generally to any units that we may offer under this
prospectus, we will describe the particular terms of any series of units in more
detail in the applicable prospectus supplement. The terms of any units offered
under a prospectus supplement may differ from the terms described
below.
General
Each
unit will be issued so that the holder of the unit is also the holder of each
security included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included in the unit may
not be held or transferred separately, at any time or at any time before a
specified date.
We
will describe in the applicable prospectus supplement the terms of the series of
units, including:
|
·
|
the designation and terms of the
units, including whether and under what circumstances the securities
comprising the units may be held or transferred
separately;
|
|
·
|
any provisions of the governing
unit agreement that differ from those described below;
and
|
|
·
|
any provisions for the issuance,
payment, settlement, transfer or exchange of the units or of the
securities comprising the
units.
|
The
provisions described in this section, as well as those described under
“Description of Capital Stock,” “Description of Debt Securities” and
“Description of Warrants,” will apply to each unit and to any common stock,
preferred stock, debt securities or warrant included in each unit,
respectively.
Issuance in
Series
We
may issue units in such amounts and in such numerous distinct series as we
determine.
Enforceability of Rights by Holders
of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and
will not assume any obligation or relationship of agency or trust with any
holder of any unit. A single bank or trust company may act as unit agent for
more than one series of units. A unit agent will have no duty or responsibility
in case of any default by us under the applicable unit agreement or unit,
including any duty or responsibility to initiate any proceedings at law or
otherwise, or to make any demand upon us. Any holder of a unit may, without the
consent of the related unit agent or the holder of any other unit, enforce by
appropriate legal action its rights as holder under any security included in the
unit.
CERTAIN
PROVISIONS OF DELAWARE LAW;
THE
COMPANY’S CERTIFICATE
OF
INCORPORATION AND BYLAWS
The
following paragraphs summarize certain provisions of the Delaware General
Corporation Law, or the DGCL, and the Company’s certificate of incorporation and
bylaws. The summary does not purport to be complete and is subject to and
qualified in its entirety by reference to the DGCL and to the Company’s
certificate of incorporation and bylaws, copies of which are on file with the
Commission as exhibits to documents previously filed by the Company. See “Where
You Can Find More Information.”
Our
certificate of incorporation limits the personal liability of our directors to
Advanceed Battery Technologies, Inc. and our stockholders to the fullest extent
permitted by the DGCL. The inclusion of this provision in our certificate of
incorporation may reduce the likelihood of derivative litigation against
directors and may discourage or deter stockholders or management from bringing a
lawsuit against directors for breach of their duty of care.
Our
bylaws provide that special meetings of stockholders can be called only by the
board of directors. Stockholders are not permitted to call a special meeting and
cannot require the board of directors to call a special meeting.
We
are subject to Section 203 of the DGCL, which prohibits a Delaware
corporation from engaging in any “business combination” with an “interested
stockholder,” for a period of three years after the date of the transaction in
which a person became an “interested stockholder,” unless:
|
·
|
prior to such date the board of
directors of the corporation approved either the “business combination” or
the transaction that resulted in the stockholder becoming an “interested
stockholder;”
|
|
·
|
upon consummation of the
transaction which resulted in the stockholder becoming an “interested
stockholder,” the “interested stockholder” owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced, excluding for purposes of determining the number of voting
shares outstanding (but not the voting shares owned by the “interested
stockholder”) those shares owned (1) by persons who are directors and
also officers and (2) employee stock plans in which employee
participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange
offer; or
|
|
·
|
at or subsequent to such time the
“business combination” is approved by the board of directors and
authorized at an annual or special meeting of stockholders, and not by
written consent, by the affirmative vote of a least 66 2/3% of the
outstanding voting stock that is not owned by the “interested
stockholder.”
|
A
“business combination” includes mergers, stock or asset sales and other
transactions resulting in a financial benefit to the “interested stockholders.”
An “interested stockholder” is a person who, together with affiliates and
associates, owns (or within three years, did own) 15% or more of the
corporation’s voting stock. Although Section 203 permits us to elect not to
be governed by its provisions, we have not made this election. As a result of
the application of Section 203, potential acquirers of Advanced Battery
Technologies, Inc. may be discouraged from attempting to effect an
acquisition transaction with us, thereby possibly depriving holders of our
securities of certain opportunities to sell or otherwise dispose of such
securities at above-market prices pursuant to such transactions.
LEGAL
MATTERS
Our counsel, Robert Brantl, Esq., 52
Mulligan Lane, Irvington, NY 10533, will issue an opinion about certain legal
matters with respect to the securities. Mr. Brantl owns 22,799 shares
of our common stock.
EXPERTS
The consolidated financial statements
of Advanced Battery Technologies, Inc. for the years ended December 31, 2008,
2007 and 2006 that are incorporated by reference into this prospectus and in the
registration statement have been audited by Bagell, Josephs, Levine &
Company, L.L.C., independent registered public accountants, to the extent and
for the periods set forth in their report incorporated by
reference. The consolidated financial statements are incorporated by
reference in reliance upon such report given upon the authority of Bagell,
Josephs, Levine & Company, L.L.C. as experts in auditing and
accounting.
Part
II. INFORMATION NOT REQUIRED IN THE
PROSPECTUS
Item
14.
Other Expenses of Issuance and
Distribution
The following are the expenses that
Advanced Battery Technologies, Inc. expects to incur in connection with the
registration and distribution of the securities being registered. All
of these expenses (other than the filing fee) are estimated, and will not be
certain until after the registration statement is declared
effective.
Filing
fees
|
|
$
|
7,254
|
|
Transfer
Agent
|
|
|
2,000
|
|
Legal
fees
|
|
|
20,000
|
|
Miscellaneous
|
|
|
2,000
|
|
TOTAL
|
|
$
|
31,254
|
|
Item
15.
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.
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
16.
Exhibits
The
exhibits listed in the accompanying Exhibit Index are filed (except where
otherwise indicated) as part of this Registration Statement.
Item
17.
Undertakings
A. The
undersigned Registrant hereby undertakes:
(1)
To file, during any period in which
offers or sales are being made, post-effective amendments 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 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 a 20
percent change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective 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 (i), (ii) and (iii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, or Exchange Act, that are
incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2)
That, for the purpose of determining any
liability under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering.
(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 the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i)
Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the
registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however
, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
Any preliminary prospectus or
prospectus of the undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(6) That,
for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to section 13(a) or section
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 the
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.
(7) The
undersigned registrant hereby undertakes to deliver or cause to be delivered
with the prospectus, to each person to whom the prospectus is sent or given, the
latest annual report, to security holders that is incorporated by reference in
the prospectus and furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934;
and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
(8) 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.
(9)
That:
(i)
For purposes of determining any
liability under the Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time it was
declared effective.
(ii)
For the purpose of determining any
liability under the Securities Act, each post-effective amendment that contains
a form of prospectus 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.
(10) If
and when applicable, the Registrant hereby further undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of the Trust Indenture
Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned thereunto duly authorized, in the City of New
York and the State of New York on the 17
th
day of
August, 2009.
|
ADVANCED
BATTERY TECHNOLOGIES, INC.
|
|
|
|
By:
/s/ Zhiguo
Fu
|
|
Zhiguo
Fu. Chairman
|
POWER
OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints ZHIGUO FU as his or her true and lawful agent, proxy
and attorney-in-fact, with full power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and all capacities,
to (i) act on, sign, and file with the Securities and Exchange Commission
any and all amendments (including post-effective amendments) to this
registration statement together with all schedules and exhibits thereto,
(ii) act on, sign and file such certificates, instruments, agreements and
other documents as may be necessary or appropriate in connection therewith,
(iii) act on and file any supplement to any prospectus included in this
registration statement or any such amendment and (iv) take any and all
actions which may be necessary or appropriate to be done, as fully for all
intents and purposes as he or she might or could do in person, hereby approving,
ratifying and confirming all that such agent, proxy and attorney-in-fact or any
of his substitutes may lawfully do or cause to be done by virtue
thereof.
Pursuant
to the requirements of the Securities Act, this registration statement has been
signed by the following persons in the capacities indicated on August 17,
2009.
/s/ Zhiguo
Fu
Zhiguo
Fu, Director,
Chief
Executive Officer
/s/ Guohua
Wan
Guohua
Wan,
Chief
Financial and Chief
Accounting
Officer, Director
/s/ Guopeng
Gao
Guopeng
Gao, Director
/s/ Hongjun
Si
Hongjun
Si, Director
/s/ Liqui
Bai
Liqui
Bai, Director
/s/ John
McFadden
John
McFadden, Director
/s/ Yulin
Hao
Yulin
Hao, Director
/s/ Ning
Li
Ning Li,
Director
/s/ Shaoqin
Xia
Shaoqiu
Xia, Director
/s/ Shiyan
Yang
Shiyan
Yang, Director
Cosimo J.
Patti
INDEX
TO EXHIBITS
Exhibit
|
|
Number
|
Description of
Document
|
1.1*
|
Form
of Underwriting Agreement
|
|
|
3-a
|
Amended
and Restated Certificate of Incorporation – filed as an exhibit to the
Current Report on Form 8-K dated July 12, 2004 and incorporated herein by
reference.
|
|
|
3-a(1)
|
Certificate
of Amendment of Certificate of Incorporation - filed as an exhibit to the
Current Report on Form 8-K dated June 25, 2009 and incorporated herein by
reference.
|
|
|
3-b
|
Amended
By-laws – filed as an exhibit to the Company's Current Report on Form 8-K
dated August 2, 2007 and filed on August 9, 2007, and incorporated herein
by reference.
|
|
|
4.2*
|
Form
of Specimen Preferred Stock Certificate and Form of Certificate of
Designation of Preferred Stock
|
|
|
4.3*
|
Form
of Senior Debt Indenture
|
|
|
4.4*
|
Form
of Subordinated Debt Indenture
|
|
|
4.5*
|
Form
of Senior Note
|
|
|
4.6*
|
Form
of Subordinated Note
|
|
|
4.7*
|
Form
of Common Stock Warrant Agreement and Warrant
Certificate
|
|
|
4.8*
|
Form
of Preferred Stock Warrant Agreement and Warrant
Certificate
|
|
|
4.9*
|
Form
of Debt Securities Warrant Agreement and Warrant
Certificate
|
|
|
5
|
Opinion
of Robert Brantl, Esq.
|
12
|
Computation
of Ratio of Earnings to Fixed Charges
|
23-a.
|
Consent
of Bagell, Josephs, Levine & Company, LLC (re: Advanced
Battery Technologies, Inc.)
|
23-b.
|
Consent
of Bagell, Josephs, Levine & Company, LLC (re: Wuxi Angell
Autocycle Co., Ltd.)
|
23-c
|
Consent
of Robert Brantl, Esq. is contained in his opinion.
|
24
|
Power
of Attorney – included on the Signatures page.
|
25*
|
Statement
of Eligibility of Trustee on Form
T-1
|
________________
|
*
To be filed by
amendment or by a report filed under the Securities Exchange Act of 1934,
as amended, and incorporated herein by
reference.
|
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