SEC Company Response from CBAK Energy Technology, Inc. (CBAT) (CIK 0001117171) (CBAT) — Jun 22, 2005
CBAK Energy Technology, Inc. (CBAT) (CIK 0001117171)
Date: June 22, 2005 · CIK: 0001117171 · Accession: 0001010549-05-000457
AI Filing Summary & Sentiment
File numbers found in text: 333-122209
Referenced dates: February 11, 2005
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George L. Diamond
(214) 953-6119
gdiamond@jw.com
VIA FACSIMILE AND FEDERAL EXPRESS
June 22, 2005
Mr. Edward M. Kelly
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Mail Stop 0510 Rm. 5215
Re: China BAK Battery, Inc.
f/k/a Medina Coffee, Inc.
Amendment No. 1 to Form SB-2 filed January 21, 2005 (the "Amended SB-2")
File No. 333-122209
Dear Mr. Kelly:
On behalf of China BAK Battery, Inc. (the "Company"), this letter is in response
to the comments contained in the Staff's letter (the "Comment Letter") dated
February 11, 2005, regarding the Amended SB-2.
The following responses indicate, where applicable, the additions or revisions
that have been included in the Amended SB-2 and other Company filings in
response to the Staff's comments. The responses are numbered to correspond to
the numbers assigned in the Comment Letter. Capitalized terms used in this
response letter but not defined herein have the meanings assigned to such terms
in the Amended SB-2, and page references below are to pages in the Amended SB-2.
Three marked copies of the Amended SB-2 (reflecting changes from the filing made
on January 21, 2005) are enclosed herewith.
SB-2
----
1. The Staff is supplementally advised that the Company acknowledges that
the comments contained in the Comment Letter are comments that are
applicable to its Annual Report on Form 10-KSB for the fiscal year
ended December 31, 2003 and subsequent Exchange Act filings.
<PAGE>
Edward M. Kelly
June 22, 2005
Page 2
Registration Statement's Cover Page
2. The Staff is supplementally advised that a box has been added to the
cover page of the Amended SB-2 to evidence that the Company is relying
on Rule 415 of Regulation C under the Securities Act.
Special Note Regarding Forward-Looking Statements, page 2
3. The Staff is supplementally advised that the "Special Note Regarding
Forward-Looking Statements" disclosure has been moved to p. 12 of the
Amended SB-2 following the "Risk Factors" section.
Risk Factors, page 7
4. The Staff is supplementally advised that each of the identified risk
factors has been updated to include information necessary to assess the
risk, including its magnitude.
5. The Staff is supplementally advised that the risk factors have been
updated to avoid generic conclusions in the risk factors' headings and
in the risk factors' discussions.
6. The Staff is supplementally advised that the risk factors including
language like "We cannot assure," "There can be no assurance," "We
cannot guarantee," and "There is no assurance" have been revised to
reflect the fact that the risk is the situation described and not the
Company's inability to assure or guarantee.
7. The Staff is supplementally advised that the subject risk factor has
been updated to reflect the fact that there is no established trading
market for the Company's common stock and that the Company's common
stock may never be included for trading on any stock exchange or
through any other quotation system (including, without limitation, the
NASDAQ Stock Market).
8. The Company has considered the Staff's comment and hereby
supplementally advises the Staff that, after a review of its Amended
and Restated Bylaws, additional risk factor disclosure has been added
beginning on p. 11 of the Amended SB-2.
Market for Common Equity, Related Stockholder Matters and Dividend Policy, page
16
9. The Staff is supplementally advised that the section entitled "Market
for Common Equity, Related Stockholder Matters and Dividend Policy", as
found on p. 12 of the Amended SB-2, has been revised to clarify that
the range of closing high and low bid prices of the Company's common
stock reflects interdealer prices without retail markup, markdown, or
commission and may not represent actual transactions.
10. The Staff is supplementally advised that the columns under the tables
set forth under the heading "Market for Common Equity, Related
Stockholder Matters and Dividend Policy" on p. 12 of the Amended SB-2
have been revised to properly reflect the referenced high and low bid
prices of the Company's common stock for the noted periods.
<PAGE>
Edward M. Kelly
June 22, 2005
Page 3
Management's Discussion and Analysis of Plan of Operations, page 17
11. The Staff is supplementally advised that p. 24 of the Amended SB-2 has
been revised to disclose the financial ratio test that is now a part of
the Comprehensive Credit Facility with Agricultural Bank of China.
Other than that credit facility, none of the Company's credit
facilities or other financial instruments require it or its operating
subsidiaries to satisfy specified financial ratios and tests.
Liquidity and Capital Resources, page 23
12. The Staff is supplementally advised that the "Management's Discussion
and Analysis of Plan of Operation - Liquidity and Capital Resources"
section of the Amended SB-2 has been revised on pp. 23 and 24 to make
the requested distinction.
13. The Staff is supplementally advised that disclosure has been added to
the "Management's Discussion and Analysis of Plan of Operation -
Liquidity and Capital Resources" section on p. 23 of the Amended SB-2
discussing the potential impact of rising raw material prices on the
Company's operations and liquidity.
14. The Staff is supplementally advised that additional disclosure
regarding the Company's new production facility can be found on p. 23
of the Amended SB-2 under the section entitled "Management's Discussion
and Analysis of Plan of Operation - Liquidity and Capital Resources."
15. The Staff is supplementally advised that additional disclosure
regarding the time frame within which the Company expects to receive
feedback from its potential OEM partners and the potential impact such
OEM relationships will have on its operations has been included on p.
25 of the Amended SB-2 under the section entitled "Management's
Discussion and Analysis of Plan of Operation - Liquidity and Capital
Resources."
16. The Staff is supplementally advised that disclosure has been added on
p. 25 of the Amended SB-2 under "Management's Discussion and Analysis"
discussing the Company's critical accounting policies and management's
methodology in making the estimates and the trends that could have an
impact on those estimates.
17. The Staff is supplementally advised that the loan from Changzhou Lihai
Investment Consulting Co., Ltd. was made to Shenzhen BAK Battery Co.,
Ltd. ("BAK Battery") for the purpose of satisfying a debt obligation to
an unaffiliated party. Management believes that even though the
referenced loan was not in compliance with applicable PRC law, the risk
to the Company is nominal as the US $1,812,316 loan has been paid in
full.
Business
Our Business Strategy, page 26
18. The Staff is supplementally advised that disclosure regarding the
preparations the Company has made and what additional preparations are
required in connection with its OEM certification has been added on p.
28 of the Amended SB-2 under the heading "Business - Our Business
Strategy." In addition, the Staff is supplementally advised that
disclosure regarding when the Company believes it will earn income from
its OEM business can also be found on p. 28 of the Amended SB-2.
<PAGE>
Edward M. Kelly
June 22, 2005
Page 4
19. The Staff is supplementally advised that the Amended SB-2 has been
revised on p. 28 and elsewhere to clarify that, although not yet in
production, a prototype for a lithium polymer battery cell is in
existence. The Company is still coordinating manufacturing and
distribution capability for the prototype and as such is unable to
state with certainty when this product will be offered to the
marketplace. The Company is currently producing for sale high power
lithium ion batteries.
Directors and Executive Officers, page 32
20. The Staff is supplementally advised that Dr. Mao's biographical data on
p. 33 of the Amended SB-2 has been revised to identify that Dr. Mao
received his doctorate from Memorial University of Newfoundland,
Canada.
21. The Staff is supplementally advised that disclosure regarding when the
Company intends to expand its board of directors has been added on p.
33 of the Amended SB-2.
Principal Stockholders, page 34
22. The Staff is supplementally advised that the requested clarification
has been added in footnote (4) to the Principal Stockholders table on
p. 36 of the Amended SB-2.
Certain Relationships and Related Party Transactions, page 35
23. The Staff is supplementally advised that all references to an
independent appraisal firm have been deleted in the Amended SB-2.
24. The Staff is supplementally advised that disclosure has been added on
p. 37 of the Amended SB-2 to indicate the Company's belief that its
agreement with HFG International, Ltd. was on terms at least as
favorable as those that BAK Battery would have expected to negotiate
with an unaffiliated party providing similar services. A copy of the
agreement with HFG International, Ltd. has been filed as Exhibit 10.20
to the Amended SB-2.
Selling Stockholders, page 36
25. The Staff is supplementally advised that the requested disclosure is
set forth in the initial paragraph under the section entitled "Selling
Stockholders" commencing on p. 38 of the Amended SB-2 and the footnotes
to the selling stockholders table found therein.
26. The Staff is supplementally advised that the requested disclosure is
set forth in the footnotes to the selling stockholders table found
under the section entitled "Selling Stockholders" commencing on p. 38
of the Amended SB-2.
<PAGE>
Edward M. Kelly
June 22, 2005
Page 5
27. The Staff is supplementally advised that, to the extent the requested
information is applicable, disclosure is set forth in the footnotes to
the selling stockholders table found under the section entitled
"Selling Stockholders" commencing on p. 38 of the Amended SB-2.
28. The Staff is supplementally advised that, to the extent the requested
information is applicable, disclosure is set forth in the footnotes to
the selling stockholders table found under the section entitled
"Selling Stockholders" commencing on p. 38 of the Amended SB-2.
29. The Staff is supplementally advised that none of the selling
stockholders are broker/dealers. However, certain of the footnoted
selling stockholders are affiliates of broker/dealers, and those
selling stockholders have been identified as such in the notes to the
selling stockholders table commencing on p. 38.
30. The Staff is supplementally advised that as none of the selling
stockholders are broker/ dealers the requested disclosure is not
applicable.
31. The Staff is supplementally advised that for those broker/dealer
affiliates identified in the Amended SB-2, disclosure has been added in
the notes to the selling stockholders table commencing on p. 38 to
reflect that said parties purchased the securities listed in the
selling stockholders table in the ordinary course of business and that
they had no arrangements or understandings, directly or indirectly,
with any person to distribute the securities at the time of their
purchase.
32. The Staff is supplementally advised that the requested disclosure has
been made on p. 38 of the Amended SB-2.
Legal Matters, page 40
33. The Staff is supplementally advised that the address for Jackson Walker
L.L.P. has been provided under "Legal Matters" on p. 44 of the Amended
SB-2 as requested.
Report of Independent Registered Public Accounting Firm, page F-1
34. The Staff is supplementally advised that the issues raised in this
comment were addressed through direct correspondence between the Staff
and the Company's independent audit firm. Please advise if the Staff
requires additional information regarding the issues set forth in the
comment.
Financial Statements
35. The Staff is supplementally advised that the shareholders of BAK
International, Ltd. ("BAK International") just before the transaction
with BAK Battery were: Xiangqian Li (21,233,437 / $7,820,000), Jinghui
Wang (3,600,035 / $1,322,500), Fenghua Li (2,498,051 / $908,500),
Yunfei Li (1,405,154 / $517,500), Xuechun Zhang (379,673 / $138,000),
<PAGE>
Edward M. Kelly
June 22, 2005
Page 6
Jimin Li (343,482 / $126,500), Yongbin Han (312,256 / $115,000), Shumin
Li (312,256 / $115,000), Huanyu Mao (249,805 / $80,500), Xiaohui Wang
(224,825 / $80,500), Shuquan Zhang (132,709 / $46,000), Yanlong Zou
(124,903 / $46,000), Jianjun Huang (124,903 / $46,000), Baicheng Zhou
(124,903 / $46,000), Yuxin Zhang (74,942 / $34,500), Feng Li (67,135 /
$23,000), Ge Shao (9,368 / $3,450) and Yunqing Lin (7,806 / $2,300).
Each of the forgoing were shareholders of BAK Battery, with Xiangqian
Li, Yongbin Han and Huanyu Mao serving as executive officers of BAK
Battery. Following each listed person are the number of shares of BAK
International they held immediately prior to the transaction with BAK
Battery and the approximate consideration paid for such shares. BAK
International was created as a holding company and as such the minimum
capitalization required by Hong Kong law was in place immediately prior
to the transaction. The shareholders of BAK Battery received an
aggregate of 31,225,642 shares of BAK International by investing U.S.
$11.5 million based on their pro rata ownership of BAK Battery. The
Staff is supplementally advised that attached hereto as Appendix "A"
the Company has provided the summarized balance sheet of BAK
International just before the transaction with BAK Battery. Each of the
original BAK International shareholders contributed cash for their
ownership interest in said company, which cash was then used to acquire
the share capital of BAK Battery in accordance with applicable PRC law.
The Staff is supplementally advised that th