As
filed with the Securities and Exchange Commission on December 2, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
American
Battery Technology Company
(Exact
Name of Registrant as Specified in Its Charter)
| Nevada |
|
33-1227980 |
| (State
or Other Jurisdiction of |
|
(I.R.S.
Employer |
| Incorporation
or Organization) |
|
Identification
No.) |
100
Washington Street, Suite 100
Reno, NV 89503
(775) 473-4744
(Address
of Principal Executive Offices, Including Zip Code)
American
Battery Technology Company 2021 Equity Incentive Plan
American
Battery Technology Company 2024 Employee Stock Purchase Plan
(Full
Title of the Plan)
Ryan
Melsert
Chief
Executive Officer
c/o
American Battery Technology Company
100 Washington Street, Suite 100
Reno, NV 89503
(775) 473-4744
(Name,
Address, 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
Phone:
(303) 290-1086
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 7(a)(2)(B) of the Securities Act. ☐
This
Registration Statement will become effective upon filing in accordance with Rule 462(a) under the Securities Act.
EXPLANATORY
NOTE
This
Registration Statement on Form S-8 (the “Registration Statement”), relating to the American Battery Technology Company 2021
Equity Incentive Plan (the “Equity Plan”) and the American Battery Technology Company Employee Stock Purchase Plan (the “ESPP”
and, together with the Equity Plan, the “Plans”), is being filed pursuant to General Instruction E to Form S-8, for the purpose
of registering an aggregate of 8,988,851 shares (the “Shares”) of the common stock, par value $0.001 per share (the “Common
Stock”), of American Battery Technology Company (the “Registrant”), which consists of (i) 5,988,851 shares reserved
for issuance under the Equity Plan (the “Equity Plan Shares”) and (ii) 3,000,000 shares reserved for issuance under the ESPP
(the “ESPP Shares”). The Shares are securities of the same class and the Equity Plan Shares relate to the same employee benefit
plan for which a Registration Statement on Form S-8 has previously been filed and is effective. Accordingly, this Registration Statement
incorporates by reference the contents of the Registration Statement on Form S-8, File No. 333-257800, filed with the Securities and
Exchange Commission (the “SEC”) on July 9, 2021, by the Company, relating to the Equity Plan, and the information required
by Part II is omitted, except as supplemented by the information set forth below.
PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
All
information required by Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement
in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of
Form S-8. The document(s) containing the information specified in Part I will be delivered to participants in the equity compensation
plan covered by this Registration Statement as required by Rule 428(b)(1) under the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
Registrant hereby incorporates by reference in this Registration Statement the following documents, which are on file with the SEC (other
than any portions of the Current Reports on Form 8-K that were furnished pursuant to Item 2.02 or 7.01 of Form 8-K or other applicable
SEC rules):
| ● |
Our
Annual Report on Form 10-K for the year ended June 30, 2024 (our “Annual Report”), filed with the SEC on September 23,
2024; |
| |
|
| ● |
Our
Quarterly Report on Form 10-Q for the quarter ended September 30, 2024, filed with the SEC on November 14, 2024; |
| |
|
| ● |
Our
Current Reports on Form 8-K filed with the SEC on July
10, 2024, August
26, 2024, September
20, 2024, September
25, 2024, September
30, 2024, November
14, 2024, November
15, 2024, November
27, 2024 and November
27, 2024; |
| |
|
| ● |
Our
Definitive Proxy Statement on Schedule 14A filed with the SEC on October 4, 2024; and |
| |
|
| ● |
the
description of our shares of capital stock contained in our Registration Statement on Form 8-A, as filed with the SEC on October
17, 2013, including any amendment or report filed for the purpose of updating such description. |
All
documents filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that
all securities offered hereby have been sold or which deregisters all securities then remaining unsold, are deemed to be incorporated
by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents (such documents,
and the documents enumerated above, being hereinafter referred to as “Incorporated Documents”).
Any
statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed Incorporated Document modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration
Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers
The
elimination of monetary liability against our directors, officers and employees under Nevada law and the existence of indemnification
rights for or obligations to our directors, officers and employees may result in substantial expenditures by us and may discourage lawsuits
against our directors, officers and employees.
Our
Amended and Restated Articles of Incorporation contain a provision permitting us to eliminate the personal liability of our directors
to us and our stockholders for damages for the breach of a fiduciary duty as a director or officer to the extent provided by Nevada law.
We may also have contractual indemnification obligations under any future employment agreements with our officers. The foregoing indemnification
obligations could result in our incurring substantial expenditures to cover the cost of settlement or damage awards against directors
and officers, which we may be unable to recoup. These provisions and the resulting costs may also discourage us from bringing a lawsuit
against directors and officers for breaches of their fiduciary duties, and may similarly discourage the filing of derivative litigation
by our stockholders against our directors and officers even though such actions, if successful, might otherwise benefit us and our stockholders.
Nevada
Law
Section
78.7502 of the Nevada Revised Statutes permits a corporation to indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding if he:
(a)
is not liable pursuant to Nevada Revised Statute 78.138, or
(b)
acted in good faith and in a manner which 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.
In
addition, Section 78.7502 permits a corporation to indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason
of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses,
including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by him in connection with the defense
or settlement of the action or suit if he:
(a)
is not liable pursuant to Nevada Revised Statute 78.138; or
(b)
acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation.
To
the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to above, or in defense of any claim, issue or matter, the corporation is required to indemnify
him against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with the defense.
Section
78.751 of the Nevada Revised Statutes provides that such indemnification may also include payment by the Company of expenses incurred
in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding upon receipt of
an undertaking by the person indemnified to repay such payment if he shall be ultimately found not to be entitled to indemnification
under Section 78.751. Indemnification may be provided even though the person to be indemnified is no longer a director, officer, employee
or agent of the Company or such other entities.
Section
78.752 of the Nevada Revised Statutes allows a corporation to purchase and maintain insurance or make other financial arrangements on
behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise for
any liability asserted against him and liability and expenses incurred by him in his capacity as a director, officer, employee or agent,
or arising out of his status as such, whether or not the corporation has the authority to indemnify him against such liability and expenses.
Other
financial arrangements made by the corporation pursuant to Section 78.752 may include the following:
(a)
the creation of a trust fund;
(b)
the establishment of a program of self-insurance;
(c)
the securing of its obligations of indemnification by granting a security interest or other lien on any assets of the corporation; and
(d)
the establishment of a letter of credit, guaranty or surety.
No
financial arrangement made pursuant to Section 78.752 may provide protection for a person adjudged by a court of competent jurisdiction,
after exhaustion of all appeals, to be liable for intentional misconduct, fraud or a knowing violation of law, except with respect to
the advancement of expenses or indemnification ordered by a court.
Any
discretionary indemnification pursuant to Section 78.7502 of the Nevada Revised Statutes, unless ordered by a court or advanced pursuant
to an undertaking to repay the amount if it is determined by a court that the indemnified party is not entitled to be indemnified by
the corporation, may be made by the corporation only as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances. The determination must be made:
(a)
by the stockholders;
(b)
by the board of directors by a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding;
(c)
if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent
legal counsel in a written opinion, or
(d)
if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent legal counsel
in a written opinion.
Subsection
7 of Section 78.138 of the Nevada Revised Statutes provides that, subject to certain very limited statutory exceptions, a director or
officer is not individually liable to the corporation or its stockholders or creditors for any damages as a result of any act or failure
to act in his or her capacity as a director or officer, unless it is proven that the act or failure to act constituted a breach of his
or her fiduciary duties as a director or officer and such breach of those duties involved intentional misconduct, fraud or a knowing
violation of law. The statutory standard of liability established by Section 78.138 controls even if there is a provision in the corporation’s
articles of incorporation unless a provision in the corporation’s articles of incorporation provides for greater individual liability.
Charter
Provisions and Other Arrangements
Pursuant
to the provisions of Nevada Revised Statutes, we have adopted the following indemnification provisions in our Amended and Restated Articles
of Incorporation for our directors and officers:
Officers
and directors shall have no personal liability to the corporation of its stockholders for damages for breach of fiduciary duty as an
officer or director. This provision does not eliminate or limit the liability of an officer or director for acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law or the payment of distributions in violation of Nevada Revised Statute 78.300.
Insofar
as indemnification for liabilities arising under the Securities Act 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 SEC such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
| Exhibit
Number |
|
Description
of Exhibit |
| |
|
|
| 4.1 |
|
Articles of Incorporation, as amended, as filed with the Secretary of State of the State of Nevada on October 6, 2011 (incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K filed on September 12, 2022). |
| 4.2 |
|
Certificate of Change Pursuant to NRS 78.209, as filed with the Secretary of State of the State of Nevada on August 31, 2023 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on September 11, 2023). |
| 4.3 |
|
Certificate of Amendment, as filed with the Secretary of State of the State of Nevada on November 14, 2024 (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on November 14, 2024) |
| 4.4 |
|
Certificate of Designation of Preferences, Rights and Limitations of Series A Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on October 8, 2019). |
| 4.5 |
|
Certificate of Designation of Preferences, Rights and Limitations of Series B Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on February 19, 2020). |
| 4.6 |
|
Certificate of Designation of Preferences, Rights and Limitations of Series C Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on November 5, 2020). |
| 4.7 |
|
Certificate of Designation of Series D Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on September 20, 2024). |
*Filed
herewith.
Item
9. Undertakings.
| |
(a) |
The undersigned registrant hereby undertakes: |
| |
(1) |
To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: |
| |
(i) |
To include any prospectus required by Section 10(a)(3) of the
Securities Act; |
| |
|
|
| |
(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 this 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 the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) under
the Securities Act 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;
and |
| |
|
|
| |
(iii) |
To
include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement; |
provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 SEC by the registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in this 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 thereof. |
| |
(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. |
| (b) | The
undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the registrant’s annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| | | |
| (c) | Insofar
as indemnification for liabilities arising under the Securities Act 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 SEC such indemnification
is against public policy as expressed in the Securities 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 of whether
such indemnification by it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue. |
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-8 and 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 the 2nd day of December, 2024.
| |
AMERICAN
BATTERY TECHNOLOGY COMPANY |
| |
|
|
| |
By: |
/s/
Ryan Melsert |
| |
|
Ryan
Melsert, Chief Executive Officer |
POWER
OF ATTORNEY
We,
the undersigned officers and directors of American Battery Technology Company, hereby severally constitute and appoint [Ryan Melsert]
our true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this registration statement (or any other registration statement for
the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same,
with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite or necessary to be done
in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
| /s/
Ryan Melsert |
|
Chief
Executive Officer and Chief Technology Officer |
|
December
2, 2024 |
| Ryan
Melsert |
|
(Principal
Executive Officer), and Director |
|
|
| |
|
|
|
|
| /s/
Jesse Deutsch |
|
Chief
Financial Officer (Principal Accounting Officer) |
|
December
2, 2024 |
| Jesse
Deutsch |
|
|
|
|
| |
|
|
|
|
| /s/
D. Richard Fezell |
|
Chairman
of the Board, Director |
|
December
2, 2024 |
| D.
Richard Fezell |
|
|
|
|
| |
|
|
|
|
| /s/
Susan Yun Lee |
|
Director |
|
December
2, 2024 |
| Susan
Yun Lee |
|
|
|
|
| |
|
|
|
|
| /s/
Elizabeth Lowery |
|
Director
|
|
December
2, 2024 |
| Elizabeth
Lowery |
|
|
|
|
| |
|
|
|
|
| /s/
Sherif Marakby |
|
Director
|
|
December
2, 2024 |
| Sherif
Marakby |
|
|
|
|
Exhibit
5.1
December
2, 2024
Board
of Directors
American
Battery Technology Company
100
Washington Street, Suite 100
Reno,
NV 89503
| |
Re: |
Registration Statement on
Form S-8 |
Ladies
and Gentlemen:
We
have acted as counsel to American Battery Technology Company (the “Company”), in connection with its Registration
Statement on Form S-8 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”). On May 16, 2021, the Board of Directors of the Company (the “Board”) approved the 2021
Equity Incentive Plan (the “Equity Plan”) for the issuance of up to 60,000,000 shares (the “Initial
Equity Plan Shares”) of the Company’s common stock (“Common Stock”) under the Equity Plan,
which was subsequently approved by the stockholders of the Company, effective as of May 16, 2021. The Company registered the Initial
Equity Plan Shares for issuance under the Equity Plan in a Registration Statement on Form S-8, File No. 333-257800, filed with the Commission
on July 9, 2021. On June 18, 2024, the Board approved the Company’s 2024 Employee Stock Purchase Plan (the “ESPP”)
for the issuance of up to 3,000,000 shares (the “ESPP Shares”) of the Company’s Common Stock under the
ESPP, which was subsequently approved by the stockholders of the Company, effective as of November 13, 2024. Pursuant to the Registration
Statement, the Company is registering (i) an additional 5,988,851 shares (the “Evergreen Shares”) for issuance
under the Equity Plan, as amended, in accordance with Section 4.3(a) of the Equity Plan, and (ii) the ESPP Shares for issuance under
the ESPP, as amended. 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 Evergreen
Shares and the ESPP 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 October 29, 2019, the Certificate of Amendment filed on August 12, 2021, the Certificate
of Change filed August 31, 2023 and 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 resolutions adopted by the Board relating to, among other things, the approval
of the Equity Plan; |
| | | |
| E. | a
report regarding the annual meeting of the stockholders of the Company held on May 16,
2021, regarding the election of directors; |
December
2, 2024
page
2
| F. | a
report regarding the annual meeting of the stockholders of the Company held on May 16,
2021, indicating that the Equity Plan was approved by the stockholders; |
| | | |
| G. | a
copy of the resolutions adopted by the Board relating to, among other things, the approval
of the ESPP and the filing of the Registration Statement; |
| | | |
| H. | a
report regarding the annual meeting of the stockholders of the Company held on November 16,
2023, regarding the election of the directors; |
| | | |
| I. | a
report regarding the annual meeting of the stockholders of the Company held on November 13,
2024, indicating that the ESPP was approved by the stockholders; and |
| | | |
| J. | the
certificate of good standing covering the Company, issued by the Secretary of State of the
State of Nevada as of a recent date (the “Certificate of Good Standing”). |
We
have relied upon the foregoing and upon certificates 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.
We
are opining herein as to the Nevada General Corporation Law, as amended, and 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 (i) the Evergreen
Shares have been duly authorized for issuance pursuant to the Equity Plan, and when issued in accordance with the terms of the Equity
Plan, will be validly issued, fully paid and nonassessable and (ii) the ESPP Shares have been duly authorized for issuance pursuant to
the ESPP Plan, and when issued in accordance with the terms of the ESPP Plan, 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 |
Exhibit 23.1
Exhibit
99.2
Exhibit
107
Calculation
of Filing Fee Table
Form
S-8
(Form
Type)
American
Battery Technology Company
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
| Security
Type | |
Security
Class Title | |
Fee
Calculation Rule | |
Amount
Registered(1) | | |
Proposed
Maximum
Offering Price Per Unit | | |
Maximum
Aggregate Offering Price | | |
Fee
Rate | | |
Amount
of
Registration Fee | |
| Equity | |
Common
Stock, $0.001 par value per share | |
457(c)
and 457(h) | |
| 5,988,851 | (2) | |
$ | 0.9445 | (4) | |
$ | 5,656,470 | | |
$ | 0.00015310 | | |
$ | 866 | |
| Equity | |
Common
Stock, $0.001 par value per share | |
457(c)
and 457(h) | |
| 3,000,000 | (3) | |
$ | 0.8028 | (5) | |
$ | 2,408,400 | | |
$ | 0.00015310 | | |
$ | 369 | |
| Total
Offering Amount | |
| | | |
$ | 8,064,870 | | |
| | | |
$ | 1,235 | |
| Total
Fee Offsets | |
| | | |
| | | |
| | | |
$ | 0 | |
| Net
Fee Due | |
| | | |
| | | |
| | | |
$ | 1,235 | |
| (1) |
Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall
also cover any additional shares of common stock, $0.001 par value per share (the “Common Stock”) of American Battery
Technology Company (the “Registrant”), which become issuable by reason of any stock split, stock dividend, reorganization,
merger, consolidation, recapitalization or other similar transaction effected without the receipt of consideration which results
in an increase in the number of shares of outstanding Common Stock. |
| |
|
| (2) |
Represents
5,988,851 additional shares of Common Stock registered pursuant to the Registrant’s 2021 Equity Incentive Plan (the “Equity
Plan”) pursuant to Section 4.3(a) of the Equity Plan. There were 60,000,000 shares available for issuance under the Equity
Plan that were previously registered on the Registrant’s registration statement on Form S-8 (Registration No. 333-257800) filed
with the Securities and Exchange Commission on July 9, 2021. The 60,000,000 registered shares have been adjusted to reflect the one-for-fifteen
reverse stock split that occurred on September 11, 2023. |
| |
|
| (3) |
Represents
shares of Common Stock registered pursuant to the Registrant’s 2024 Employee Stock Purchase Plan (the “ESPP”). |
| |
|
| (4) |
Estimated
solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and Rule 457(h) of the Securities Act.
The proposed maximum offering price per share is calculated on the basis of $0.9445, the average of the high and low price
of the Company’s Common Stock as reported on the Nasdaq Stock Market on November 29, 2024, which is within five business
days prior to filing this Registration Statement. |
| |
|
| (5) |
Estimated
solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and Rule 457(h) of the Securities Act.
The proposed maximum offering price per share is $0.8028, which is calculated as the average of the high and low price of
the Company’s Common Stock as reported on the Nasdaq Stock Market on November 29, 2024, multiplied by 85%, which is
the percentage of the price per share applicable to purchases under the ESPP. |
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