SCHEDULE 14C INFORMATION
information statement Pursuant to Section 14(c)
of the Securities Exchange Act of 1934
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[X] Preliminary information statement
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[_] Definitive Proxy Statement
LITHIUM TECHNOLOGY CORPORATION
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(Name of Registrant as Specified in Its Charter)
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LITHIUM TECHNOLOGY CORPORATION
5115 Campus Drive
Plymouth Meeting, PA 19462
610-940-6090
INFORMATION STATEMENT
MAY __, 2003
INTRODUCTION
This information statement is furnished by the Board of Directors of
Lithium Technology Corporation to the stockholders of LTC common stock and
Series A preferred stock at the close of business on May 5, 2003, the record
date, and is being sent to you in connection with the action taken by the
holders of a majority of the voting stock of LTC. Those stockholders, by written
consent dated May 5, 2003, gave the Board of Directors the authority to amend
the LTC Restated Certificate of Incorporation, as amended, to effect a reverse
stock split of LTC common stock based upon any of the following ratios:
one-for-ten; one-for-fifteen or one-for-twenty. The stockholder approval gives
the Board of Directors authority to implement or determine not to effect, in its
sole discretion, the reverse stock split at any prior to December 31, 2003.
This information statement is being mailed on or before the close of
business on May __, 2003, to every security holder entitled to vote or give an
authorization or consent in regard to any matter to be acted upon. In this
information statement, we refer to Lithium Technology Corporation as "LTC,"
"we," "our," or "the company."
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED
NOT TO SEND US A PROXY.
Plymouth Meeting, Pennsylvania
May __, 2003
OUTSTANDING SECURITIES AND VOTING RIGHTS
As of the May 5, 2003 record date, we had 88,235,392 shares of common stock
issued and outstanding and 100,000 shares of preferred stock, designated as
Series A preferred stock, issued and outstanding. All holders of shares of
common stock and Series A preferred stock as of the record date are entitled to
receive this information statement. The common stock and Series A preferred
stock are the only securities of LTC that were entitled to vote on the matter
presented herein.
Each holder of record of common stock on the record date is entitled to one
vote per share, and each holder of record of Series A preferred stock on the
record date is entitled to 1,114 votes per share, on each matter presented. The
holders of common stock and Series A preferred stock vote together as a single
class on each matter presented.
The stockholders who consented in writing to this matter hold 23,932,087
shares of common stock with one vote per share and 100,000 shares of Series A
Preferred Stock with 1,114 votes per share. The consenting stockholders consist
of the two largest stockholders of the company - Arch Hill Capital N.V. and Arch
Hill Ventures N.V. The votes cast by the consenting stockholders totaled
135,272,611 votes or 67.78% of the voting stock.
We are incorporated under the laws of the State of Delaware. Delaware law
provides that any action that may be taken at any stockholders' meeting may be
taken by written consent of the requisite number of stockholders required to
take such action. Approval of the reverse stock split required the written
consent of the holders of a majority of LTC outstanding common stock and Series
A preferred stock voting together as a single class. The consenting stockholders
authorized and approved the reverse stock split by signing consent resolutions
dated as of May 5, 2003.
THE REVERSE STOCK SPLIT
Purpose
Our common stock is currently traded on the NASD Over-the-Counter Bulletin
Board. As of May 5, 2003, we had 88,235,392 shares of common stock outstanding,
with a per share price of common stock on May 5, 2003 of $0.11. The Board of
Directors believes that it is it the interest of our stockholders and LTC for it
to have the authority to effect the reverse stock split because it believes that
a higher stock price may help generate investor interest in the company.
The Board of Directors believes that institutional investors and investment
funds are generally reluctant to invest in lower priced stocks. Accordingly, the
Board of Directors concluded that reducing the number of outstanding shares of
common stock might be desirable in order to attempt to support a higher stock
price per share based on our current market capitalization. In addition, the
Board of Directors considered that the common stock may not appeal to brokerage
firms that are reluctant to recommend lower priced securities to their clients.
Investors may also be dissuaded from purchasing lower priced stocks because the
brokerage commissions, as a percentage of the total transaction, tend to be
higher for such stocks. Moreover, the analysts at many brokerage firms do not
monitor the trading activity or otherwise provide research coverage of lower
priced stocks.
1
In order to reduce the number of shares of common stock outstanding and
thereby attempt to proportionally raise the per share price of our common stock,
the Board of Directors adopted a resolution seeking stockholder approval
regarding the reverse stock split, to which the consulting stockholders agreed.
As a result of this approval, the Board of Directors has the authority to
file the Amended and Restated Certificate of Incorporation with the Secretary of
the State of Delaware (as described below) to effect the reverse stock split at
any time prior to December 31, 2003. The reverse stock split will not change the
number of authorized shares of common stock or the par value of LTC common
stock. Except for any changes as a result of the rounding up of fractional
shares, each stockholder will hold the same percentage of common stock
outstanding after the reverse stock split as such stockholder did immediately
prior to the split.
Upon the effectiveness of the reverse stock split, the number of authorized
shares of common stock as provided in the LTC Certificate of Incorporation will
remain at 125,000,000. Accordingly, upon effectiveness the reverse stock split,
the number of authorized shares of common stock that are not issued or
outstanding would increase due to the reduction in the number of shares of LTC
common stock issued and outstanding based on the reverse stock split ratio
selected by the Board of Directors.
The availability of additional authorized shares will allow us to issue
shares in connection with an equity financing transaction, upon conversion of
outstanding convertible securities and for other corporate purposes, if
appropriate opportunities should arise, without further action by the
stockholders or the time delay involved in obtaining stockholder approval
(except to the extent that approval is otherwise required by applicable law).
We do not currently have sufficient cash to achieve all of our development
and production objectives. In order to have sufficient capital resources for our
development, production, operating and administrative needs, we need to close on
an equity financing transaction in the near term. We anticipate that such an
equity financing could be up to approximately $10,000,000, although no
definitive terms have been established as of this date and there can be no
assurance that we will be able to consummate any new equity financing.
We do not currently have sufficient shares of common stock available for
issuance upon the exercise or conversion of all of our convertible securities.
At May 5, 2003, we had outstanding: (i) 88,235,392 shares of common stock, (ii)
100,000 shares of Series A Preferred Stock held by Arch Hill Ventures
convertible into 111,340,524 shares of common stock, (iii) $3,949,000 of
convertible notes held by Arch Hill Capital convertible into 39,490,000 shares
of common stock at a conversion price of at $.10, (iv) options to purchase
3,175,088 shares of common stock at exercise prices ranging from $.11 to $.48
(all of which are currently exercisable) and (v) warrants to purchase 19,886,000
shares of common stock at exercise prices ranging from $.15 to $.185 (19,686,000
of which are currently exercisable). The total number of outstanding shares of
common stock and shares issuable upon conversion of outstanding convertible
securities is 262,127,004. Upon the effectiveness of the reverse stock split at
the one-for ten, one-for-fifteen or one-for twenty ration, the total number of
outstanding shares of common stock and shares issuable upon conversion of
convertible securities outstanding at May 5, 2003 would be 26,212,701,
17,475,134 or 13,106,351, respectively. The issuance of any shares of common
stock or convertible securities in connection with any new equity financing or
otherwise prior to the date of the reverse stock split would increase such
numbers.
2
We may in the future attempt to cause our common stock to become listed on
a national exchange. These national exchanges have minimum listing and
maintenance requirements. By undertaking the reverse stock split, we believe
that our opportunity to have our common stock listed on such a national stock
exchange will be greatly enhanced. However, there can be no assurances that we
will cause an application to be filed to list our common stock for trading on
any national exchange, or if we do so, that our application will be accepted,
despite the reverse stock split.
The Board of Directors believes that stockholder approval of several
potential exchange ratios (rather than a single exchange ratio) provides the
Board of Directors with the flexibility to achieve the desired results of the
reverse stock split. The reverse stock split will be effected, if at all, only
upon a determination by the Board of Directors that the reverse stock split is
in the best interests of the stockholders at that time. In connection with any
determination to effect a reverse stock split, the Board of Directors will set
the timing for such a split and select the specific ratio from among the three
ratios set forth herein. No further action on the part of stockholders will be
required to either implement or abandon the reverse stock split. If the Board of
Directors does not implement the reverse stock split prior to December 31, 2003,
the authority granted to implement the reverse stock split on these terms will
terminate. The Board of Directors reserves its right to elect not to proceed,
and abandon, the reverse stock split if it determines, in its sole discretion,
that this proposal is no longer in the best interests of LTC stockholders. No
further action by LTC stockholders will be required in order for the Board of
Directors to abandon the reverse stock split.
Certain Risks Associated With the Reverse Stock Split
There can be no assurance that the total market capitalization of LTC common
stock (the aggregate value of all company common stock at the then market price)
after the reverse stock split will be equal to or greater than the total market
capitalization before the reverse stock split or that the per share market price
of LTC common stock following the reverse stock split will either exceed or
remain higher than the current per share market price.
There can be no assurance that the market price per new shares of LTC
common stock after the reverse stock split will rise or remain constant in
proportion to the reduction in the number of old shares of LTC common stock
outstanding before the reverse stock split. For example, based on the market
price of LTC common stock on May 5, 2003 of $0.11 per share, if the Board of
Directors selects a reverse split ratio of one-for-ten there can be no assurance
that the post-split market price of LTC common stock would be $1.10 per share or
greater.
Accordingly, the total market capitalization of LTC common stock after the
reverse stock split may be lower than the total market capitalization before
reverse stock split and, in the future, the market price of LTC common stock
following the reverse stock split may not exceed or remain higher than the
market price prior to the reverse stock split. In many cases, the total market
capitalization of a company following a reverse stock split is lower than the
total market capitalization before a reverse stock split.
3
If the reverse stock split is effected, the resulting per-share stock price may
not attract institutional investors or investment funds and may not satisfy the
investing guidelines of such investors and, consequently, the trading liquidity
of LTC common stock may not improve.
While the Board of Directors believes that a higher stock price may help
generate investor interest, there can be no assurance that the reverse stock
split will result in a per share price that will attract institutional investors
or investment funds or that such share price will attract institutional
investors or investment funds or that such share price will satisfy the
investing guidelines of institutional investors or investment funds. As a
result, the trading liquidity of LTC common stock may not necessarily improve.
A decline in the market price for LTC common stock after the reverse stock split
may result in a greater percentage decline than would occur in the absence of a
reverse stock split, and the liquidity of LTC common stock could be adversely
affected following the reverse stock split.
If the reverse stock split is effected and the market price of LTC common
stock declines, the percentage decline may be greater than would occur in the
absence of the reverse stock split. The market price of LTC common stock will
also be based on LTC performance and other factors, some of which are unrelated
to the number of shares outstanding. Furthermore, the liquidity of LTC common
stock could be adversely affected by the reduced number of shares that would be
outstanding after the reverse stock split.
Principal Effects of the Reverse Stock Split
Corporate Matters. If effected, the reverse stock split will be effected
simultaneously for all of LTC common stock and the ratio will be the same for
all of LTC common stock. The reverse stock split will affect all LTC's
stockholders uniformly and will not affect any stockholder's percentage
ownership interests in LTC, except to the extent that the reverse stock split
results in any changes as a result of the rounding up of fractional shares. As
described below, stockholders holding fractional shares will be entitled to one
new share of common stock. This will avoid the necessity of making nominal cash
payments to a number of holders of fractional shares.
In addition, the reverse stock split will not affect any stockholder's
percentage ownership or proportionate voting power (subject to the treatment of
fractional shares). However, because the number of authorized shares of LTC
common stock will not be reduced, the reverse stock split will increase the
Board of Directors' ability to issue authorized and unissued shares without
further stockholder action.
The principal effect of reverse stock split will be that:
. Either ten, fifteen or twenty pre-reverse stock split shares
owned by a stockholder would be exchanged for one new share
of LTC common stock;
. the number of shares of LTC common stock issued and
outstanding will be reduced from approximately 89 million
shares of May 5, 2003 to a range of approximately 8.9
million to 4.4 million shares, depending on the reverse
stock split ratio determined by the Board of Directors;
4
. based on the reverse stock split ratio selected by the Board
of Directors, proportionate adjustments will be made to the
number of shares of LTC common stock issuable upon the
conversion of all outstanding convertible notes and
convertible preferred stock of LTC; and
. proportionate adjustments based on the reverse stock split
ratio selected by the Board of Directors will be made to the
per share exercise price and the number of shares issuable
upon the exercise of all outstanding options and warrants
entitling the holders thereof to purchase shares of LTC
common stock, which will result in approximately the same
aggregate price being required to be paid for such options
and warrants upon exercise of such options and warrants
immediately preceding the reverse stock split;
. the number of shares reserved for issuance under LTC's
existing stock option plans will be reduced proportionately
based on the reverse stock split ratio selected by the Board
of Directors.
The reverse stock split will result in some stockholders owning "odd lots"
of less than 100 shares of LTC common stock. Brokerage commissions and other
costs of transactions in odd lots are generally somewhat higher than the costs
of transactions in "round lots" of even multiples of 100 shares.
Fractional shares. No scrip or fractional certificates will be issued in
connection with the reverse stock split. Stockholders who otherwise would be
entitled to receive fractional shares because they hold a number of pre-reverse
stock split shares not evenly divisible by ten, fifteen or twenty will be
entitled to receive one new share.
Authorized shares. The reverse stock split would effect all issued and
outstanding shares of LTC common stock and outstanding rights to acquire LTC
common stock. Upon the effectiveness of the reverse stock split, the number of
authorized shares of common stock as provided in the LTC Certificate of
Incorporation will remain at 125,000,000. Accordingly, upon effectiveness of the
reverse stock split, the number of authorized shares of common stock that are
not issued or outstanding would increase due to the reduction in the number of
shares of LTC common stock issued and outstanding based on the reverse stock
split ratio selected by the Board of Directors. As of the record date, we had
88,235,392 shares of common stock issued and outstanding. We will continue to
have 100,000 authorized shares of preferred stock. Authorized but unissued
shares will remain available for issuance, and we may issue such shares in
financings or otherwise. If we issue additional shares, the ownership interest
of holders of LTC common stock may be diluted. Also, the issued shares may have
rights, preferences or privileges senior to those of LTC common stock.
Accounting Matters. The reverse stock split will not affect the par value
of LTC common stock. As a result, as of the effective time of the reverse stock
split, the stated capital on our balance sheet attributable to LTC common stock
will be reduced proportionately based on reverse stock split ratio selected by
the Board of Directors, and the additional paid-in capital account will be
credited with the amount by which the stated capital is reduced. The per share
net income or loss
5
and net book value of LTC common stock will be restated because there will be
fewer shares of LTC common stock outstanding.
Potential Anti-Takeover Effect. Although the increased proportion of
unissued authorized shares to issued shares could, under certain circumstances,
have an anti-takeover effect (for example, by permitting issuances that would
dilute the stock ownership of a person seeking to effect a change in the
composition of our Board of Directors or contemplating a tender offer or other
transaction for the combination of LTC with another company), the reverse stock
split is not in response to any effort of which we are aware to accumulate LTC
shares of common stock or obtain control of LTC, nor is it part of a plan by
management to recommend a series of similar amendment to our Board of Directors
and stockholders. Other than the amendments relating to the reverse stock split,
our Board of Directors does not currently contemplate recommending the adoption
of any other changes to the LTC Amended and Restated Certificate of
Incorporation that could be construed to affect the ability of third parties to
take over or change control of LTC.
Procedure for Effecting the Reverse Stock Split
If the Board of Directors decides to implement the reverse stock split at
any time prior to December 31, 2003, a Certificate of Amendment to the LTC
Restated Certificate of Incorporation, as amended, will be filed with the
Secretary of State of the State of Delaware to make the reverse stock split
effective. The reverse stock split will become effective on the date of filing
the certificate of amendment, which is referred to as the "effective date".
Beginning on the effective date, each certificate representing pre-reverse stock
split shares will be deemed for all corporate purposes to evidence ownership of
post-reverse stock split shares. The text of the certificate of amendment, will
be in substantially the form attached hereto as Appendix A; provided, however,
that the text of the form of certificate of amendment is subject to modification
to include such changes as may be required by the Secretary of State of the
State of Delaware and as the Board of Directors deems necessary and advisable to
effect the reverse stock split, including the applicable ratio for the reverse
stock split.
No Exchange of Stock Certificates
The certificates representing the outstanding pre-reverse stock split
shares of common stock will not be required to be exchanged for new certificates
representing post-reverse stock split shares. Rather, the existing certificates
will be deemed automatically to constitute and represent the correct number of
post-split shares without further action by the stockholders, and new
certificates will only be issued as old certificates are delivered to LTC's
transfer agent as transfers of shares occur after the effective date.
No Appraisal Rights
Under the General Corporation Law of the State of Delaware, our
stockholders are not entitled to appraisal rights with respect to the reverse
stock split, and we will not independently provide stockholders with any such
right.
6
Federal Income Tax Consequences of the reverse stock split
The following is a summary of certain material United States federal income
tax consequences of the reverse stock split, does not purport to be a complete
discussion of all of the possible federal income tax consequences of the reverse
stock split and is included for general information only. Further, it does not
address any state, local or foreign income or other tax consequences. Also, it
does not address the tax consequences to holders that are subject to special tax
rules, such as banks, insurance companies, regulated investment companies,
personal holding companies, foreign entities, nonresident alien individuals,
broker-dealers and tax-exempt entities. The discussion is based on the
provisions of the United States federal income tax law as of the date hereof,
which is subject to change retroactively as well as prospectively. This summary
also assumes that the pre-reverse stock split shares were, and the post-reverse
stock split shares will be, held as a "capital asset," as defined in the
Internal Revenue Code of 1986, as amended (i. e., generally, property held for
investment). The tax treatment of a stockholder may vary depending upon the
particular facts and circumstances of such stockholder. Each stockholder is
urged to consult with such stockholder's own tax advisor with respect to the tax
consequences of the reverse stock split. As used herein, the term United States
holder means a stockholder that is, for federal income tax purposes: a citizen
or resident of the United States; a corporation or other entity taxed as a
corporation created or organized in or under the laws of the United States, any
State of the United States or the District of Columbia; an estate the income of
which is subject to federal income tax regardless of its source; or a trust if a
U.S. court is able to exercise primary supervision over the administration of
the trust and one or more U.S. persons have the authority to control all
substantial decisions of the trust.
No gain or loss should be recognized by a stockholder upon such
stockholder's exchange of pre-reverse stock split shares for post-reverse stock
split shares pursuant to the reverse stock split. The aggregate tax basis of the
post-reverse stock split shares received in the reverse stock split (including
any fraction of a post-reverse stock split share deemed to have been received)
will be the same as the stockholder's aggregate tax basis in the pre-reverse
stock split shares exchanged therefore. The stockholder's holding period for the
post-reverse stock split shares will include the period during which the
stockholder held the pre-reverse stock split shares surrendered in the reverse
stock split.
Our view regarding the tax consequences of the reverse stock split is not
binding on the Internal Revenue Service or the courts. ACCORDINGLY, EACH
SHAREOWNER SHOULD CONSULT WITH HIS OR HER OWN TAX ADVISOR WITH RESPECT TO ALL OF
THE POTENTIAL TAX CONSEQUENCES TO HIM OR HER OF THE REVERSE STOCK SPLIT.
Vote Required
Approval of the reverse stock split required the written consent of the holders
of at least a majority of the outstanding shares of common stock and Series A
preferred stock entitled to vote on the proposal, voting together as a class.
Stockholders owning at least a majority of the outstanding shares of common
stock and Series A preferred stock, voting together as a class approved the
reverse stock split by written consent dated May 5, 2003.
7
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information as of May 5, 2003 the number and
percentage of outstanding shares of LTC common stock beneficially owned by
executive officers, directors and stockholders owning at least 5% of LTC common
stock:
Name and Address of Beneficial Owner shares Beneficially Owned Percentage of Class/(1)/
------------------------------------ ------------------------- -------------------------
Arch Hill Capital N.V./(2)/ 174,762,611/(11)/ 73.10%
Arch Hill Ventures N.V./(2)/ 111,340,524/(12)/ 55.79%
Ilion Technology Corporation/(3)/ 25,500,000/(13)/ 25.31%
David Cade/(4)(6)(7)/ 851,482/(14)/ *
Stephen Hope/(4)(6)/ 1,166,079/(15)/ 1.32%
Ralph Ketchum/(4)(6)/ 722,438/(16)/ *
Franz Josef Kruger/(5)(6)(8)/ -0-/(17)/ -0-
Andrew J. Manning/(4)(9)/ 569,042/(14)/ *
Arif Maskatia/(4)(6)/ 63,334/(14)/ *
John D. McKey/(4)(6)/ 177,535/(18)/ *
Marnix Snijder/(2)(6)/ -0- -0-
Ralf Tolksdorf/(5)(6)(10)/ -0-/(19)/ -0-
Hendrikus Harold van Andel/(2)(6)/ -0- -0-
All Executive Officers and
Directors as a Group (10 persons) 3,640,238/(20)/ 4.04%
-----------------------
(1) The percentage of class calculation for each person or entity is based on
the number of shares of LTC common stock outstanding as of May 5, 2003
(88,235,392) plus the number of shares of LTC common stock issuable to the
person or entity upon conversion of convertible securities held by such
person or entity.
8
(2) Address: Parkweg 2, 2585 JJ's, Gravenhage, Netherlands.
(3) Address: 99 South Bedford Street, Suite 2, Burlington, Massachusetts.
(4) Address c/o Lithium Technology Corporation, 5115 Campus Drive, Plymouth
Meeting, PA 19462.
(5) Address c/o GAIA Akkumulatorenwerke GmbH, Montaniastarsse 17, D-00734
Nordhausen, Germany.
(6) Director of LTC.
(7) Chairman and Chief Executive Officer of LTC.
(8) President and Chief Operating Officer of LTC.
(9) Executive Vice President and General Manager of LTC.
(10) Chief Financial Officer of LTC.
(11) Consists of 23,932,087 shares of LTC common stock owned by Arch Hill
Capital, $3,949,000 notes convertible into 39,490,000 shares of LTC common
stock owned by Arch Hill Capital and 100,000 shares of Series A preferred
stock convertible into 111,340,524 shares of LTC common stock held by Arch
Hill Ventures, which is controlled by Arch Hill Capital.
(12) Consists of 1,000 shares of Series A preferred stock convertible into
111,340,524 shares of LTC common stock.
(13) Includes warrants to purchase 12,500,000 shares of LTC common stock.
(14) Consists of options exercisable within 60 days of May 5, 2003.
(15) Includes options to purchase 85,000 shares exercisable within 60 days of
May 5, 2003; 1,081,079 shares held directly by Mr. Hope; and 90,328 shares
held by Hazel Hope, the Executrix of the Estate of Henry Hope.
(16) Includes options to purchase 88,334 shares exercisable within 60 days of
May 5, 2003; 384,275 shares held directly by Mr. Ketchum; and 249,829
shares held by Mr. Ketchum's spouse.
(17) Does not include 5,567,026 shares of LTC common stock issuable upon
conversion of 5,000 shares of Series A Preferred Stock held by Arch Hill
Ventures for the benefit of Stichting Administratiekantoor GAIA ("Stichting
GAIA") which in turn holds an interest in such shares for the benefit of
Franz Kruger. Dr. Kruger does not have the power to vote or control the
disposition of such shares nor does he have the right to receive such
shares on any specific date, and accordingly disclaims beneficial ownership
of such shares. Stichting GAIA does not have the power to vote or control
the disposition of such shares nor does it have the right to
9
receive such shares on any specific date and accordingly disclaims
beneficial ownership of such shares.
(18) Includes options to purchase 108,334 shares exercisable within 60 days of
May 5, 2003.
(19) Does not include 5,233,005 shares of LTC common stock issuable upon
conversion of 4,700 shares of Series A preferred stock held by Arch Hill
Ventures for the benefit of Stichting GAIA which in turn holds an interest
in such shares for the benefit of Ralf Tolksdorf. Mr. Tolksdorf does not
have the power to vote or control the disposition of such shares, nor does
he have the right to receive such shares on any specific date, and
accordingly disclaims beneficial ownership of such shares. Stichting GAIA
does not have the power to vote or control the disposition of such shares
nor does it have the right to receive such shares on any specific date, and
accordingly disclaims beneficial ownership of such shares.
(20) Includes options to purchase 1,765,526 shares exercisable within 60 days of
May 5, 2003.
* Less than 1%.
OTHER ACTION
No further business will be transacted by written consent to corporate action in
lieu of a meeting of stockholders regarding matters to which this information
statement pertains.
COSTS OF INFORMATION STATEMENT
This information statement has been prepared by the company and our Board of
Directors. We will bear the costs of distributing this information statement to
stockholders, including the expense of preparing, assembling, printing and
mailing the information statement. Although there is no formal agreement to do
so, we may reimburse banks, brokerage houses and other custodians, nominees and
fiduciaries for their reasonable expenses in forwarding this information
statement and related materials to stockholders. We may pay for and use the
services of other individuals or companies not regularly employed by us in
connection with the distribution of this information statement if the Board of
Directors determines that this is advisable.
BY ORDER OF THE BOARD OF DIRECTORS
/s/ David J. Cade
---------------------------------------------------
David J. Cade, Chairman and Chief Executive Officer
Dated: May __, 2003
10
Exhibit A
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
LITHIUM TECHNOLOGY CORPORATION
Lithium Technology Corporation, a corporation duly organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify that:
1. That the Board of Directors of said Corporation at a meeting duly
held, adopted resolutions setting forth a proposed amendment of the Restated
Certificate of Incorporation of said Corporation, as amended, declaring said
amendment to be advisable and directing that the amendment be submitted to the
stockholders of said Corporation for consideration thereof. The amendment is as
follows:
RESOLVED, that the Restated Certificate of Incorporation of Lithium
Technology Corporation, as amended, be amended by deleting the introductory
paragraph of Article IV thereof in its entirety and substituting the
following thereof:
The total number of shares of stock which the Corporation shall be
authorized to issue is 125,100,000 shares, of which 125,000,000
shares shall be shares of Common Stock, $.01 par value ("Common
Stock") and 100,000 shares shall be shares of Preferred Stock,
$1.00 par value ("Preferred Stock").
Upon this Certificate of Amendment to the Restated Certificate of
Incorporation of the Corporation becoming effective pursuant to the
General Corporation Law of the State of Delaware (the "Effective
Time"), every [ten (10)] [fifteen (15)] [twenty (20)] shares of the
Corporation's common stock, par value $.01 per share (the "Old
Common Stock"), issued and outstanding immediately prior to the
Effective Time, will be automatically reclassified as and converted
into one share of common stock, par value $.01 per share, of the
Corporation (the "New Common Stock").
Notwithstanding the immediately preceding sentence, no fractional
shares of New Common Stock shall be issued to the holders of record
of Old Common Stock in connection with the foregoing
reclassification of shares of Old Common Stock. In lieu thereof
stockholders who otherwise would be entitled to receive fractional
shares because they hold a number of shares of Old Common Stock not
evenly divisible by [ten (10)] [fifteen (15)] [twenty (20)] will be
entitled to receive one (1) share of New Common Stock
Each stock certificate that, immediately prior to the Effective
Time, represented shares of Old Common Stock shall, from and after
the Effective Time, automatically
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and without the necessity of presenting the same for exchange,
represent that number of whole shares of New Common Stock into
which the shares of Old Common Stock represented by such
certificate shall have been reclassified, provided, however,
that each holder of record of a certificate that represented
shares of Old Common Stock shall receive, upon surrender of
such certificate, a new certificate representing the number of
whole shares of New Common Stock into which the shares of Old
Common Stock represented by such certificate shall have been
reclassified.
2. That in lieu of a meeting and vote of the stockholders, the
stockholders have given consent to said amendment in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware and written notice of the adoption of the amendment will be given as
provided in Section 228 of the General Corporation Law of the State of Delaware
to every stockholder entitled to such notice prior to the effective date hereof.
3. The foregoing amendment was duly adopted in accordance with
the provisions of Sections 242 and 228 of the General Corporation Law of the
State of Delaware.
4. That the capital of said Corporation shall not be reduced
under or by reason of said amendment.
IN WITNESS WHEREOF, Lithium Technology Corporation has caused this
Certificate to be executed by its duly authorized officer on this ___ day of
_________, 2003.
LITHIUM TECHNOLOGY CORPORATION
By: _________________________________
Name:
Office:
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