Annual Report — Small Business — Form 10-KSB
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10KSB Lithium Technology Corporation Form 10-Ksb HTML 847K
2: EX-3.1 Restated Certificate of Incorporation 11 41K
3: EX-3.2 By-Laws 15 54K
4: EX-10.14 Second Amendment to Lease, Dated March 21, 2003 4 17K
5: EX-10.38 Consultancy Agreement Dated August 19, 2002 4 13K
6: EX-10.39 Consultancy Agreement Dated August 19, 2002 4 13K
7: EX-10.40 Grant Notification Dated September 11, 2000 8 21K
8: EX-10.41 Grant Notification Dated September 10, 2001 6 20K
9: EX-10.42 Grant Notification Dated July 31, 2002 4 19K
10: EX-10.43 Loan Contract No. 1101216000 Dated June 24, 1998 7 23K
11: EX-10.44 Loan Dated July 22, 1998 4 24K
12: EX-10.45 Loan Contract and Subordination Agreement 4 13K
13: EX-10.46 Gaia and Frankendael Agreement 7 20K
Participatiemaatschappij N.V.
14: EX-10.47 Partnership Agreement Between Gaia and Tamarchco 7 21K
Gmbh
15: EX-10.48 Partnership Agreement Between Gaia and Tamarchco 7 20K
Gmbh
16: EX-10.49 Partnership Agreement Between Gaia and Tamarchco 7 20K
Gmbh
17: EX-10.50 Employment Agreement-Franz Kruger 9 36K
18: EX-10.51 Employment Agreement-Ralf Tolksdorf 9 36K
19: EX-10.52 Bridge Financing Amendment Agreement 3 15K
20: EX-21.1 List of Subsidiaries 2 8K
21: EX-23.1 Consent of Pricewaterhousecoopers LLP, 2 10K
Philadelphia, Pennsylvania
22: EX-23.2 Consent of Pricewaterhousecoopers Accountants N.V. 2 10K
EX-3.1 — Restated Certificate of Incorporation
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Exhibit 3.1
Restated Certificate of Incorporation
RESTATED CERTIFICATE OF INCORPORATION
OF
LITHIUM TECHNOLOGY CORPORATION
LITHIUM TECHNOLOGY CORPORATION, a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Lithium Technology Corporation. Lithium
Technology Corporation was originally incorporated under the same name, and the
original Certificate of Incorporation of the corporation was filed with the
Secretary of State of the State of Delaware on December 28, 1995.
2. This Restated Certificate of Incorporation was duly adopted in
accordance with Section 245 of the General Corporation Law of the State of
Delaware the ("DGCL").
3. This Restated Certificate of Incorporation only restates and
integrates the provisions of the Certificate of Incorporation of this
Corporation as heretofore amended or supplemented and does not further amend the
provisions thereof. There is no discrepancy between those provisions and the
provisions of this Restated Certificate of Incorporation.
4. The text of the Certificate of Incorporation as heretofore
amended or supplemented is hereby restated to read in its entirety as follows:
FIRST: The name of the Corporation is LITHIUM TECHNOLOGY CORPORATION.
SECOND: The address of the Corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New
Castle County, Delaware 19801. The name of its registered agent at such address
is The Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to engage
in any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 125,100,000 shares, composed of 125,000,000 shares of
common stock, par value $0.01 per share ("Common Stock"), and 100,000 shares of
preferred stock, par value $0.01 per share ("Preferred Stock").
(1) Shares of Preferred Stock may be issued from time to time in one or
more series, each such series to have distinctive serial designations, as shall
hereafter be determined in the resolution or resolutions providing for the issue
of such Preferred Stock from time to time adopted by the Board of Directors
pursuant to authority to do so which is hereby vested in the Board of Directors.
(2) Each series of Preferred Stock
(i) may have such number of shares;
(ii) may have such voting powers, full or limited, or may be without
voting powers;
(iii) may be subject to redemption at such time or times and at such
prices;
(iv) may be entitled to receive dividends (which may be cumulative
or noncumulative) at such rate or rates, on such conditions,
from such date or dates, and at such times, and payable in
preference to, or in such relation to, the dividends payable on
any other class or classes or series of stock;
(v) may have such rights upon the dissolution of, or upon any
distribution of the assets of, the Corporation;
(vi) may be made convertible into, or exchangeable for, shares of
any other class or classes or of any other series of the same
or any other class or classes of stock of the Corporation at
such price or prices or at such rates of exchange, and with
such adjustments;
(vii) may be entitled to the benefit of a sinking fund or purchase
fund to be applied to the purchase or redemption of shares of
such series in such amount or amounts;
(viii) may be entitled to the benefit of conditions and restrictions
upon the creation of indebtedness of the Corporation or any
subsidiary, upon the issue of any additional stock (including
additional shares of such series or of any other series) and
upon the payments of dividends or the making of other
distributions on, and the purchase, redemption or other
acquisition by the Corporation or any subsidiary of any
outstanding stock of the Corporation; and
(ix) may have such other relative, participating, optional or other
special rights, and qualifications, limitations, or
restrictions thereof;
all as shall be stated in said resolution or resolutions of the Board of
Directors providing for the issue of such Preferred Stock. Except where
otherwise set forth in the resolution or resolutions adopted by the Board of
Directors providing for the issue of any series of Preferred Stock, the number
of shares constituting such series may be increased or decreased (but not below
the number of shares then outstanding) from time to time by like action of the
Board of Directors.
(3) Shares of any series of Preferred Stock which have been redeemed
(whether through the operation of a sinking fund or otherwise) or purchased by
the Corporation or which, if convertible or exchangeable, have been converted
into or exchanged for shares of stock of any other class or classes shall have
the status of
authorized and unissued shares of Preferred Stock any may be reissued as part of
the series of which they were originally a part or may be reclassified and
reissued as part of a new series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors or as part of any other series of
Preferred Stock, all subject to the conditions or restrictions on issuance set
forth in the resolution or resolutions adopted by the Board of Directors
providing for the issue of any series of Preferred Stock and to any filing
required by law.
(4) Except as otherwise provided by law or by the resolution or
resolutions of the Board of Directors providing for the issue of any series of
the Preferred Stock, the Common Stock shall have the exclusive right to vote for
the election of Directors and for all other purposes, each holder of the Common
Stock being entitled to one vote for each share held.
Subject to all of the rights of the Preferred Stock or any series
thereof, the holders of the Common Stock shall be entitled to receive, when, as
and if declared by the Board of Directors, out of funds legally available
therefor, dividends payable in cash, stock or otherwise.
Upon any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, and after the holders of the Preferred Stock
of each series shall have been paid in full the amounts to which they
respectively shall be entitled, or a sum sufficient for such payment in full
shall have been set aside, the remaining net assets of the Corporation shall be
distributed pro rata to the holders of the Common Stock in accordance with their
respective rights and interest, to the exclusion of the holders of the Preferred
Stock.
(5) Designation of The Series A Preferred Stock.
1. Certain Defined Terms, Etc. In addition to the terms defined
elsewhere herein, certain capitalized terms used in this Article FOURTH
have the meanings given to them in Section 10. References in this Article
FOURTH to Sections are, unless otherwise stated, references to Sections
herein.
2. Designation. Of the one hundred thousand (100,000) shares of
Preferred Stock, par value $.01 per share, that the Corporation is
authorized to issue, all one hundred thousand (100,000) shares (including
(i) the eleven thousand (11,000) shares of Preferred Stock previously
designated as Series A Preferred Stock by a Certificate of Designation
filed on March 14, 2000, (ii) the two thousand six hundred ten (2,610)
shares of Preferred Stock previously designated as Series B Preferred Stock
by a Certificate of Designation filed on February 7, 1996 and (iii) the ten
thousand (10,000) shares of Preferred Stock previously designated as Series
C Preferred Stock by a Certificate of Designation filed on February 7,
1996, none of which have been issued) are hereby designated as "Series A
Preferred Stock" having the powers, preferences and relative participating,
optional and other special rights and the qualifications, limitations and
restrictions set forth in this Article FOURTH (the "Series A Preferred").
3. Dividends and Distributions. The Series A Preferred shall be
entitled to receive dividends and distributions, at the same time and in
the same manner as the Common Stock, and in an amount per share equal to
the amount per share that the shares of Common Stock into which such Series
A Preferred are convertible would have been entitled to receive if such
Series A Preferred had been so converted into Common Stock as of the record
date established for determining holders entitled to dividends, or if no
such record date is established, as of the time of declaration of any such
dividend or distribution.
4. Voting Rights. (a) The Series A Preferred will have the
right to vote or consent in writing as set forth in this Section 4.
(b) In addition to the voting rights provided by Section 4(c),
as long as any shares of Series A Preferred are outstanding, the
affirmative vote or consent of the holders of two-thirds of the
then-outstanding shares of Series A Preferred, voting as a separate class,
will be required in order for the Corporation to:
(i) amend, alter or repeal, whether by merger,
consolidation or otherwise, the terms of this Article FOURTH
or any other provision of the Charter or Bylaws of the
Corporation (the "Bylaws"), in any way that adversely
affects any of the powers, designations, preferences and
relative, participating, optional and other special rights
of the Series A Preferred, and the qualifications,
limitations or restrictions thereof;
(ii) issue any shares of capital stock ranking prior or
superior to, or on parity with, the Series A Preferred;
(iii) subdivide or otherwise change shares of Series A
Preferred into a different number of shares whether in a
merger, consolidation, combination, recapitalization,
reorganization or otherwise (whether or not any provision of
Section 7 is applicable to such transaction); or
(iv) issue any shares of Series A Preferred other than in
accordance with this Article FOURTH.
(c) The Series A Preferred shall be entitled to vote or consent
(by written consent or otherwise) together with the Common Stock on all
matters submitted to a vote of the Common Stock, except as otherwise
provided by the DGCL.
(d) On all matters as to which shares of Common Stock or shares
of Series A Preferred are entitled to vote or consent (by written consent
or otherwise), each share of Series A Preferred will be entitled to the
number of votes (rounded up to the nearest whole number) that the Common
Stock into
which it is convertible would have if such Series A Preferred had been so
converted into Common Stock as of the record date established for
determining holders entitled to vote, or if no such record date is
established, as of the time of any vote or consent (by written consent or
otherwise) of stockholders of the Corporation. Each share of Series A
Preferred shall initially be entitled to the number of votes that
1,113.40524 shares of Common Stock would have, subject to adjustment as
provided in Section 7.
(e) Notwithstanding any other provision of the Charter or
Bylaws, the holders of a majority, or greater number if so required by the
Charter or the DGCL, of the then-outstanding Series A Preferred may consent
in writing to any matter for which a class vote is contemplated, which
written consent when so executed by the holders of a majority, or such
greater number required, of the then-outstanding Series A Preferred will be
deemed, subject to applicable Delaware law, to satisfy the applicable
voting requirements.
5. Reacquired Shares. Any shares of Series A Preferred that are
converted, purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. None of such shares of Series A Preferred shall be reissued by the
Corporation.
6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, the holders of
shares of Series A Preferred shall be entitled to receive the same
distribution paid to the holders of Common Stock, on an as-converted basis.
Neither a consolidation or merger of the Corporation with another
corporation or other legal entity, nor a sale or transfer of all or part of
the Corporation's assets for cash, securities or other property will be
considered a liquidation, dissolution or winding up of the Corporation for
purposes of this Section 6.
7. Conversion. (a) Automatic Conversion. Each share of the
Series A Preferred will automatically be converted into 1,113.40524 fully
paid and nonassessable shares of Common Stock, subject to adjustment as
described below, one year following the authorization and reservation of a
sufficient number of shares of Common Stock by all requisite action by the
Corporation, including action by the Board and by the shareholders of the
Corporation, to provide for the conversion of all outstanding shares of
Series A Preferred into fully paid and nonassessable shares of Common
Stock.
(b) Optional Conversion. Each share of the Series A Preferred
will be convertible at the option of the holder thereof into 1,113.40524
fully paid and non-assessable shares of Common Stock, subject to adjustment
as described below, at any time or from time to time following the
authorization and reservation of a sufficient number of shares of Common
Stock by all requisite action by the Corporation, including action by the
Board and by the shareholders of the Corporation, to provide for the
conversion of all outstanding shares of Series A Preferred into fully paid
and non- assessable shares of Common Stock.
(c) Mechanics of Automatic Conversion. Upon automatic conversion
as set forth in Section 7(a), the Series A Preferred shall be eliminated,
and thereafter all shares of Series A Preferred shall become and be known
as shares of "Common Stock" without further action or exchange on the part
of the holders thereof. The holder of any certificate for Series A
Preferred shall be entitled to request and to receive promptly from the
Corporation a certificate or certificates setting forth the number of
shares of Common Stock into which such Series A Preferred converted, by
delivering a written notice to the attention of the Secretary or Treasurer
of the Corporation at the Corporation's principal place of business of its
desire to receive such replacement certificate or certificates, specifying
the number of shares of Series A Preferred that have been so converted and
the holder's calculation of the Conversion Rate. In the event of any
disagreement between the Corporation and the holder as to the correct
Conversion Rate, the Conversion Rate will be finally determined by an
investment banking or brokerage firm with no material prior or current
relationship with the Corporation or any of its subsidiaries selected by
the Board in good faith, the fees and expenses of which will be paid by the
Corporation. The Corporation will, promptly upon receipt of all
certificates representing Series A Preferred as have been issued to such
holder that have been converted, issue a certificate or certificates
registering the appropriate number of shares of Common Stock to such
holder.
(d) Mechanics of Optional Conversion. The holder of any
certificate for Series A Preferred shall be entitled to request conversion
of all or part of its Series A Preferred at any time or from time to time
as provided in Section 7(b), by delivering a written notice to the
attention of the Secretary or Treasurer of the Corporation at the
Corporation's principal place of business of its desire to convert its
Series A Preferred and receive a replacement certificate or certificates
therefor, specifying the number of shares of Series A Preferred to be so
converted and the holder's calculation of the Conversion Rate. In the event
of any disagreement between the Corporation and the holder as to the
correct Conversion Rate, the Conversion Rate will be finally determined by
an investment banking or brokerage firm with no material prior or current
relationship with the
Corporation or any of its subsidiaries selected by the Board in good faith,
the fees and expenses of which will be paid by the Corporation. The
Corporation will, promptly upon receipt of all certificates representing
Series A Preferred of such holder that are to be converted, issue a
certificate or certificates registering the appropriate number of shares of
Common Stock to such holder. Upon optional conversion as set forth in
Section 7(b), the shares of Series A Preferred so converted shall be
eliminated, and thereafter such shares of Series A Preferred shall become
and be known as shares of "Common Stock" without further action on the part
of the holder thereof.
(e) Adjustment for Subdivisions or Combinations of Common Stock.
In the event that the Corporation at any time or from time to time after
the issuance of the Series A Preferred effects a subdivision, dividend
payable in shares of capital stock, combination or other similar
transaction of its outstanding Common Stock into a greater or lesser number
of shares, then and in each such event the Conversion Rate will be
increased or decreased proportionately.
(f) Reorganization, Merger, Consolidation or Sale of Assets. If
at any time or from time to time there shall be a capital reorganization of
the Common Stock (other than a subdivision, combination, or dividend
payable in shares provided for elsewhere in this Section 7) or a merger or
consolidation of the Corporation with or into another corporation or other
legal entity, or the sale of all or substantially all of the Corporation's
properties and assets to any other Person which is effected so that holders
of Common Stock are entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in exchange for
Common Stock, then as a part of such capital reorganization, merger,
consolidation or sale, proper provision will be made so that each holder of
Series A Preferred will thereafter be entitled to receive upon conversion
of the Series A Preferred the same number of shares of stock, securities or
assets of the Corporation, or of the successor corporation or other legal
entity resulting from such merger or consolidation or sale, which such
holder would have been entitled to receive on such capital reorganization,
merger, consolidation or sale if such holder's Series A Preferred had been
converted into Common Stock immediately prior to the record date
established for determining holders entitled to such distribution, or if no
such record date is established, as of the time of such transaction. In any
such case, appropriate adjustment will be made in the application of the
provisions of this Section 7(f) with respect to the rights of the holders
of the Series A Preferred after the reorganization, merger, consolidation
or sale to the end that the provisions of this Section 7(f) (including
adjustment of the Conversion Rate then in effect) will be applicable after
that event as nearly equivalent as may be practicable. This provision will
apply to successive capital reorganizations, mergers, consolidations or
sales. Nothing herein will diminish or otherwise offset the rights of the
Series A Preferred under Section 4(b).
(g) Rights Offering. If at any time or from time to time the
Corporation shall offer to any of the holders of Common Stock any right,
option or warrant to acquire additional shares of capital stock of the
Corporation, then each holder of a share of Series A Preferred
then-outstanding will be entitled to receive rights, options or warrants to
acquire such number of additional shares of capital stock of the
Corporation as such holder would have been entitled to receive had such
holder's Series A Preferred been converted into Common Stock immediately
prior to the record date for the offering of such rights, options or
warrants, at the Conversion Rate then in effect.
(h) No Adjustment. No adjustment to the Conversion Rate will be
made if such adjustment would result in a change in the Conversion Rate of
less than 0.001%. Any adjustment of less than 0.001% which is not made will
be carried forward and will be made at the time of and together with any
subsequent adjustment which, on a cumulative basis, amounts to an
adjustment of 0.001% or more in the Conversion Rate.
(i) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Conversion Rate pursuant to this Section
7, the Corporation at its expense will promptly compute such adjustment or
readjustment in accordance with the terms hereof and cause independent
public accountants selected by the Corporation to verify such computation
and prepare and furnish to each holder of Series A Preferred a certificate
setting forth such adjustment or readjustment and showing in detail the
facts upon which such adjustment or readjustment is based. The Corporation
will, upon the written request at any time of any holder of Series A
Preferred, furnish or cause to be furnished to such holder a like
certificate setting forth (i) such adjustments and readjustments, (ii) the
Conversion Rate at that time in effect, and (iii) the amount, if any, of
other property which at that time would be received upon the conversion of
Series A Preferred.
(j) Reservation of Stock Issuable Upon Conversion. The
Corporation will at all times reserve and keep available out of its
authorized but unissued shares of Common Stock solely for the purpose of
effecting the conversion of the shares of the Series A Preferred, such
number of its shares of Common Stock as will from time to time be
sufficient to effect the conversion of all then-outstanding shares of the
Series A Preferred; and if at any time the number of authorized but
unissued shares of Common Stock will not be sufficient to effect the
conversion of all then-outstanding shares of the Series A Preferred, the
Corporation will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as will be sufficient for such
purpose.
8. Rank. The Series A Preferred will rank on a parity with the
Common Stock as to any distributions or upon liquidation, dissolution or
winding up.
9. Notice to Holders. Any notice given by the Corporation to
holders of record of Series A Preferred will be effective if addressed to
such holders at their last addresses as shown on the stock books of the
Corporation and deposited in the U.S. mail, sent first-class, and will be
conclusively presumed to have been duly given, whether or not the holder of
the Series A Preferred receives such notice.
10. Certain Defined Terms. In addition to the terms defined
elsewhere in this Article FOURTH, the following terms will have the
following meanings when used herein with initial capital letters:
"Conversion Rate" means the number of shares of Common Stock into
which each share of Series A Preferred may be converted; and "Person"
means any individual, firm, corporation or other entity and includes
any successor (whether by merger or otherwise) of such entity.
FIFTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors of the Corporation is authorized to adopt, amend
or repeal the By-Laws of the Corporation.
SIXTH: Election of directors of the Corporation need not be by ballot
unless the By-Laws so require.
SEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the Court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be,
and also on the Corporation.
EIGHTH: To the fullest extent that the General Corporation Law of the
State of Delaware as it exists on the date hereof or as it may hereafter be
amended permits the limitation or elimination of the liability of directors, no
director of the Corporation shall
be liable to the Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director. No amendment to this Certificate of
Incorporation, directly or indirectly by merger, consolidation or otherwise,
having the effect of amending or repealing any of the provisions of this ARTICLE
EIGHTH shall apply to or have any effect on the liability or alleged liability
of any director of the Corporation for or with respect to any acts or omissions
of such director occurring prior to such amendment or repeal, unless such
amendment shall have the effect of further limiting or eliminating such
liability.
NINTH: The Corporation reserves the right to amend, alter or repeal any
provision contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by statute, and all rights of stockholders herein are
subject to this reservation.
IN WITNESS WHEREOF, Lithium Technology Corporation has caused this Restated
Certificate of Incorporation to be signed by David J. Cade, its authorized
officer, this 14th day of April, 2003.
/s/ David J. Cade
----------------------------
David J. Cade, Chairman and
Chief Executive Officer
Dates Referenced Herein and Documents Incorporated by Reference
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