AMERICAN BATTERY TECHNOLOGY Co S-1/A, filed Feb 7, 2025
AMERICAN BATTERY TECHNOLOGY Co (ABAT)
As filed with the Securities and Exchange Commission on February 6, 2025.
Registration No. 333-283807
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pre-Effective Amendment No. 1 to
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
| AMERICAN BATTERY TECHNOLOGY COMPANY |
| (Exact name of registrant as specified in its charter) |
| Nevada | 7372 | 33-1227980 | ||
(State or jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification No.) |
100 Washington Street, Suite 100 Reno, NV 89503 |
| Tel: (775) 473-4744 |
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices) |
| Ryan Melsert |
| Chief Executive Officer |
| 100 Washington Street, Suite 100, |
| Reno, NV 89503 |
| Tel: (775) 473-4744 |
(Name, address, including zip code, and telephone number, including area code, of agent for service) |
With a copy to:
Amy Bowler
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, CO 80202
(303) 295-8000
From time to time after the effective date of this registration statement
(Approximate date of commencement of proposed sale to the public)
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, check the following: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please 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 post-effective amendment filed pursuant to Rule 462(d) 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. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| ☐ | Large accelerated filer | ☐ | Accelerated filer |
| ☒ | Non-accelerated filer | ☒ | Smaller reporting company |
| ☐ | Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
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, as amended, or until the Registration Statement shall become effective on such date as the U.S. Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement on Form S-1 of American Battery Technology Company (the “Company”) (File No. 333-283807) is being filed as an exhibit-only filing solely to file the opinion of Holland & Hart LLP. Accordingly, this Amendment consists only of the facing page, this explanatory note, Item 16 of Part II of the Registration Statement, the signature pages to the Registration Statement, and the referenced exhibit. The prospectus and the balance of Part II of the Registration Statement are unchanged hereby and have been omitted.
Item 16. Exhibits
The following exhibits are included as part of this Registration Statement by reference:
| Exhibit | Description | Filed Herewith | Incorporated Date |
By Form |
Reference Exhibit | |||||
| 3.1 | Articles of Incorporation, as amended | September 12, 2022 | 10-K | 3.1 | ||||||
| 3.2 | Certificate of Change | September 14, 2022 | 8-K | 3.1 | ||||||
| 3.3 | Certificate of Amendment | November 14, 2024 | 8-K | 3.1 | ||||||
| 3.4 | Amended and Restated Bylaws | September 11, 2023 | 8-K | 3.1 | ||||||
| 4.1+* | Form of Senior Secured Convertible Notes | |||||||||
| 5.1 | Opinion of Holland & Hart LLP | X | ||||||||
| 10.1+* | Securities Purchase Agreement | |||||||||
| 23.1* | Consent of Marcum LLP | |||||||||
| 23.2 | Consent of Holland & Hart LLP (included in Exhibit 5.1) | X | ||||||||
| 107* | Filing Fee Table |
| + | Portions of this exhibit have been omitted for confidentiality purposes. |
| * | Previously filed. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Reno, State of Nevada, on February 6, 2025.
| AMERICAN BATTERY TECHNOLOGY COMPANY | ||
| a Nevada corporation | ||
| By: | /s/ Ryan Melsert | |
| Ryan Melsert | ||
| Chief Executive Officer, Chief Technology Officer and Director | ||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities held on the dates indicated.
| /s/ Ryan Melsert | ||||
| Ryan Melsert | Chief Executive Officer, Chief Technology Officer and Director (Principal Executive Officer) | February 6, 2025 | ||
| * | ||||
| Elizabeth Lowery | Director | February 6, 2025 | ||
| * | ||||
| Susan Yun Lee | Director | February 6, 2025 | ||
| * | ||||
| Richard Fezell | Chairman of the Board, Director | February 6, 2025 | ||
| * | ||||
| Sherif Marakby | Director | February 6, 2025 | ||
| /s/ Paul McGarry | ||||
| Paul McGarry | Interim Chief Financial Officer (Principal Accounting Officer and Principal Financial Officer) | February 6, 2025 |
| *By: | /s/ Ryan Melsert | |
| Ryan Melsert | ||
| Attorney-In-Fact |
Exhibit 5.1
February 6, 2025
American Battery Technology Company
100 Washington Street, Suite 100
Reno, Nevada 89503
Re: Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as counsel to American Battery Technology Company, a Nevada corporation (the “Company”), in connection with its Registration Statement on Form S-1 filed with the Securities and Exchange Commission (the “Commission”) on the date hereof (the “Registration Statement”), pursuant to the Securities Act of 1933, as amended (the “Securities Act”). Pursuant to the Registration Statement, the Company is registering for resale by the selling stockholders named therein (the “Selling Stockholders”) of up to 12,505,900 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (“Common Stock”), issuable upon the conversion of senior secured convertible notes (the “Notes”), which were issued to the Selling Stockholders pursuant an Amendment to Securities Purchase Agreement, dated November 14, 2024, which amended that certain Securities Purchase Agreement, dated August 29, 2023, as subsequently amended by those certain Amendments to Securities Purchase Agreement, dated April 5, 2024 and October 5, 2024 (as amended, the “Purchase Agreement”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act in connection with the Registration Statement, and no opinion is expressed or may be implied herein as to any matter pertaining to the contents of the Registration Statement other than as to the valid issuance of the Shares.
As the basis for the opinion hereinafter expressed, we have reviewed originals or copies of the following:
| A. | an executed copy of the Registration Statement; |
| B. | a copy of the Articles of Incorporation of the Company, filed with the Secretary of State of the State of Nevada on October 6, 2011, as amended and restated by the Amended and Restated Articles of Incorporation filed on April 29, 2019, as amended by the Certificate of Amendment filed on October 29, 2019, the Certificate of Amendment filed on August 12, 2021, the Certificate of Change filed on August 31, 2023 and the Certificate of Amendment filed on November 14, 2024, and certified as of a recent date; |
| C. | a copy of the Amended and Restated Bylaws of the Company, effective as of September 12, 2022; |
| D. | a copy of the unanimous written consents of the Board of Directors of the Company (the “Board”) effective as of August 29, 2023 and November 15, 2024, and meeting minutes of the Board for the November 8, 2024 meeting of the Board, which approved entry into the Purchase Agreement and issuance of the Notes, the issuance of the Shares to the Selling Stockholders upon conversion of the Notes, and the filing of the Registration Statement and the registration for issuance of the Shares; |
| E. | a copy of the Purchase Agreement and the Notes; |
| F. | the certificate of existence with status in good standing covering the Company, issued by the Secretary of State of the State of Nevada as of a recent date (the “Good Standing Certificate”); and |
| G. | a certificate of an officer of the Company representing certain matters related to the subject matter hereof (the “Officer’s Certificate”). |
We have relied upon the foregoing and upon the Officer’s Certificate and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We have assumed for purposes of this opinion: (a) information contained in documents reviewed by us is true, complete and correct; (b) the genuineness and authenticity of all signatures on original documents; (c) the accuracy and completeness of all documents delivered to us and the authenticity of all documents submitted to us as originals; (d) the conformity to originals of all documents submitted to us as copies; (e) the accuracy, completeness and authenticity of certificates of public officials; (f) the legal capacity of all natural persons; and (g) the due authorization, execution and delivery of all documents by parties other than the Company.
This opinion is limited to matters governed by the laws of the State of Nevada. We express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction, or as to any matters of municipal law or the laws of any local agencies within any state.
Based on the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that the Shares, when issued in accordance with the terms of the Purchase Agreement and the Notes, will be validly issued, fully paid and nonassessable.
We expressly disavow any obligation to advise you with respect to future changes in law or in our knowledge or as to any event or change of condition occurring subsequent to the date of this letter. This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act.
We consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
| Very truly yours, | |
| /s/ Holland & Hart LLP |