As
filed with the Securities and Exchange Commission on September 24,
2008
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
China
BAK Battery, Inc.
(Exact
name of registrant as specified in its charter)
Nevada
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88-0442833
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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BAK
Industrial Park
No.
1 BAK Street
Kuichong
Town, Longgang District
Shenzhen
518119
People’s
Republic of China
(86-755)
8977-0093
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
China
BAK Battery, Inc.
Compensation
Plan for Non-Employee Directors
(Full
title of the plan)
Xiangqian
Li
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With
a Copy to:
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President
and Chief Executive Office
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Eulalia
M. Mack
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China
BAK Battery, Inc.
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Thelen
LLP
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BAK
Industrial Park
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875
Third Avenue
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No.
1 BAK Street
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New
York, NY 10022
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Kuichong
Town, Longgang District
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(212)
603-2000
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Shenzhen
518119
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People’s
Republic of China
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(86-755)
8977-0093
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(Name,
address and telephone number, including area code, of agent for
service)
Indicate
by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
Large
accelerated filer
¨
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Accelerated
filer
x
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Non-accelerated
filer
¨
(Do
not check if a smaller reporting company)
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Smaller
reporting company
¨
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Title of securities
to be registered
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Amount to be
registered
(1)
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Proposed
maximum
offering price per
share
(2)
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Proposed
maximum
aggregate
offering price
(2)
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Amount of
registration fee
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Common stock, $0.001
par value per share
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500,000
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$
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3.71
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$
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1,855,000
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$
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72.91
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this registration statement shall also cover any
additional securities that become issuable by reason of any stock
dividend, stock split, recapitalization or any other similar
transaction.
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(2)
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Estimated
solely for the purpose of calculating the registration fee in accordance
with Rule 457(h) under the Securities Act based on the average of the
high and low sale prices of the Registrant’s common stock on The NASDAQ
Global Market as of September 22,
2008.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan Information.
*
Item
2. Registrant Information and Employee Plan Annual
Information.
*
*
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Information
required by Part I to be contained in the Section 10(a) prospectus
is
omitted from this Registration Statement in accordance with Rule
428 under
the Securities Act and the Note to Part I of Form S-8.
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The
documents containing the information specified in Part I will be delivered
in
accordance with Rule 428(b)(1) of the Securities Act of 1933, as amended (the
“Securities Act”). Such documents are not required to be, and are not, filed
with the Securities and Exchange Commission (“Commission”) either as part of
this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424. These documents, and the documents incorporated by
reference in this registration statement pursuant to Item 3 of Part II of this
Form S-8, taken together, constitute a prospectus that meets the requirements
of
Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents, which have been filed by China BAK Battery, Inc. (the
“Company”) with the Commission, are hereby incorporated by reference in this
registration statement:
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·
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the
Company’s Annual Report on Form 10-K for the fiscal year ended September
30, 2007, filed December 19, 2007;
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·
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the
Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended
December 31, 2007, filed February 6,
2008;
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·
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the
Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2008, filed May 12, 2008;
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·
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the
Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 2008, filed August 8, 2008;
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·
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the
Company’s Current Reports on Form 8-K filed November 6, 2007 (excluding
the information furnished pursuant to Item 7.01 included therein),
November 9, 2007 (excluding the information furnished pursuant to
Item
7.01 included therein and Exhibit 99.1), December 5, 2007, March
31, 2008,
June 3, 2008, August 26, 2008, and September 3, 2008 (excluding the
information furnished pursuant to Item 7.01 included therein and
Exhibit
99.1);
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·
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the
Company’s Current Report on Form 8-K/A filed July 14, 2008;
and
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·
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the
description of the Company’s common stock, par value $0.001 per share, set
forth in the Company’s registration statement on Form 8-A, filed on June
6, 2006, pursuant to Section 12(b) of the Securities Exchange Act
of 1934,
as amended (the “Exchange Act”), including any amendment or report
updating such description.
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All
other
documents filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act (other than portions of these documents
that are either (1) described in paragraphs (d)(1), (d)(2), (d)(3) or (e)(5)
of
Regulation S-K promulgated by the Commission or (2) furnished under Item 2.02
or
Item 7.01 of a Current Report on Form 8-K, unless otherwise indicated therein)
after the date hereof, but prior to the filing of a post-effective amendment
which indicates that the securities offered hereby have been sold or which
deregister the securities covered hereby then remaining unsold, shall also
be
deemed to be incorporated by reference into this registration statement and
to
be a part hereof commencing on the respective dates on which such documents
are
filed.
Any
statement contained in a document incorporated or deemed to be incorporated
by
reference herein is modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded does not, except as so modified or superseded, constitute
a part of this registration statement.
You
may
request any of these filings, at no cost, by contacting the Company at the
address or telephone number provided on the cover page of this Registration
Statement. The Company maintains an Internet site at http://www.bak.com.cn
which
contains information concerning the Company and its affiliates. The Company
makes available free of charge, on or through its Internet site, its annual,
quarterly and current reports, and any amendments to those reports, as soon
as
reasonably practicable after electronically filing such reports with the
Commission. The information contained at the Company’s Internet site is not
incorporated in this registration statement by reference and you should not
consider it 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.
Under
Sections 78.751 and 78.752 of the Nevada Revised Statutes, the Company has
broad
powers to indemnify and insure its directors and officers against liabilities
they may incur in their capacities as such. The Company’s Amended and Restated
Bylaws implement the indemnification and insurance provisions permitted by
Chapter 78 of the Nevada Revised Statutes by providing that:
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·
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Under
Section 7.7 of the Bylaws, the Company must indemnify its directors
to the
fullest extent permitted by Chapter 78 of the Nevada Revised Statutes
and
may, if and to the extent authorized by its board of directors, so
indemnify its officers and any other person whom the Company has
power to
indemnify against liability, reasonable expense or other matter
whatsoever.
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·
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Under
Section 7.8 of the Company’s Bylaws, the Company may at the discretion of
its board of directors purchase and maintain insurance on behalf
of the
Company and any person whom the Company has power to indemnify pursuant
to
law, the Company’s articles of incorporation, bylaws or
otherwise.
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These
indemnification provisions may be sufficiently broad to permit indemnification
of the Company’s directors and officers for liabilities (including reimbursement
of expenses incurred) arising under the Securities Act. The Company may also
enter into indemnification agreements with its executive officers and directors
and has provided indemnity insurance pursuant to which directors and officers
are indemnified or insured against liability or loss under certain circumstances
that may include liability, or related loss under the Securities Act and the
Exchange Act. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, or persons controlling
the Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore
unenforceable.
The
indemnity provisions may discourage stockholders from bringing a lawsuit against
the Company’s directors for breach of their fiduciary duty. These provisions may
also have the effect of reducing the likelihood of derivative litigation against
directors and officers, even though such an action, if successful, might
otherwise benefit the Company and its stockholders. Furthermore, a stockholder’s
investment may be adversely affected to the extent the Company pays the costs
of
settlement and damage awards against directors and officers pursuant to these
indemnification provisions. The Company believes that these provisions, the
indemnification agreements and the insurance are necessary to attract and retain
talented and experienced directors and officers.
At
present, there is no pending litigation or proceeding involving any of the
Company’s directors or officers where indemnification will be required or
permitted. The Company is not aware of any threatened litigation or proceeding
that might result in a claim for such indemnification.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
Reference
is made to the attached Exhibit Index, which is incorporated by reference
herein.
Item
9. Undertakings.
(a)
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The
undersigned registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made,
a
post-effective amendment to this Registration
Statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities
Act
of 1933;
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(ii)
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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 the 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 and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective Registration Statement; and
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(iii)
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To
include any additional or changed material information with respect
to the
plan of distribution not previously disclosed in the Registration
Statement;
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provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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
Commission by the registrant pursuant to Section 13 or Section 15(d)
of
the Securities Exchange Act of 1934 that are incorporated by reference
in
the Registration Statement.
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(2)
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That,
for the purpose of determining any liability under the Securities
Act of
1933, 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.
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(3)
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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.
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(b)
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The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d)
of
the Securities Exchange Act of 1934 that is incorporated by reference
in
the 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.
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(c)
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Insofar
as indemnification for liabilities arising under the Securities Act
of
1933 may be permitted to directors, officers and controlling persons
of
the registrant pursuant to the provisions described under Item 6
above, or
otherwise, the registrant has been advised that in the opinion of
the
Commission such indemnification is against public policy as expressed
in
the Securities Act of 1933 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 of 1933, and will
be
governed by the final adjudication of such
issue.
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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 City
of
Shenzhen, People’s Republic of China, on this 24th day of September,
2008.
CHINA
BAK BATTERY, INC.
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By:
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/s/
Xiangqian Li
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Xiangqian
Li
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Chairman
of the Board,
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President
and Chief Executive Officer
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POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints each of Xiangqian
Li and Tony Shen his true and lawful attorney-in-fact and agent, with full
power
of substitution and resubstitution, for him and in his name, place and stead
in
any and all capacities, to sign any and all amendments (including post-effective
amendments) 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 and
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, this Registration Statement
has been signed by the following persons in the capacities indicated on
September 24, 2008.
SIGNATURE
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TITLE
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/s/Xiangqian
Li
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Chairman
of the Board, President and
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Xiangqian
Li
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Chief
Executive Officer
(Principal
Executive Officer)
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/s/
Tony Shen
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Chief
Financial Officer
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Tony
Shen
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(Principal
Financial Officer and Principal
Accounting
Officer)
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/s/
Huanyu Mao
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Chief
Operating Officer, Chief
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Huanyu
Mao
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Technology
Officer and Director
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Director
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Richard
B. Goodner
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/s/
Charlene Spoede Budd
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Director
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Charlene
Spoede Budd
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/s/
Chunzhi Zhang
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Director
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Chunzhi
Zhang
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EXHIBIT
INDEX
Exhibit
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Description
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3.1
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Articles
of Incorporation of the Company (incorporated by reference to Exhibit
3.1
to the Company’s Annual Report on Form 10-K for the fiscal year ended
September 30, 2006, filed on December 8, 2006).
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3.2
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Bylaws
of the Company (incorporated by reference to Exhibit 3.2 to the Company’s
Annual Report on Form 10-K for the fiscal year ended September 30,
2007,
filed on December 19, 2007).
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4.1
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Specimen
Common Stock Certificate representing shares of the Company’s common
stock, par value $0.001 per share.*
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5.1
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Opinion
of Thelen LLP.*
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10.1
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China
BAK Battery, Inc. Compensation Plan for Non-Employee Directors
(incorporated by reference to Exhibit 10.2 to the Company’s Quarterly
Report on Form 10-Q for the fiscal quarter ended June 30, 2006, filed
on
August 22, 2006).
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10.2
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Amendment
No. 1 to the China BAK Battery, Inc. Stock Option Plan (incorporated
by
reference to the Company’s Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 2008, filed on August 8, 2008).
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23.1
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Consent
of PKF.*
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23.2
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Consent
of KPMG.*
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23.3
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Consent
of Thelen LLP (included in Exhibit 5.1).*
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24.1
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Power
of Attorney (included in signature
page).*
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_______________
*
Filed
herewith.
CBAK Energy Technology, Inc. (NASDAQ:CBAK)
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