UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF
THE SECURITIES AND EXCHANGE ACT OF 1934
Date
of Report (Date of Earliest Event Reported): December 27, 2010
CHINA
BAK BATTERY, INC.
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(Exact
name of registrant as specified in its
charter)
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Nevada
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001-32898
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86-0442833
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(State
or other jurisdiction
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(Commission
File No.)
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(IRS
Employer
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of
incorporation)
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Identification
No.)
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BAK
Industrial Park, No. 1 BAK Street
Kuichong
Town, Longgang District
Shenzhen,
518119
People’s
Republic of China
(Address,
including zip code, of principal executive offices)
(86-755)
8977-0093
(Registrant’s
telephone number, including area code)
Not
applicable
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
¨
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Written communications pursuant
to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01. Entry into a Material Definitive Agreement.
On
December 27, 2010, the board of directors of China BAK Battery, Inc. (the
“Company”) unanimously approved the Company’s entry into its standard form of
Indemnification Agreement (the “Indemnification Agreement”) with Mr. Ke Marcus
Cui, the Company’s Interim Chief Financial Officer.
The
Company’s standard indemnification
agreement, which it enters into
with all of its directors and officers and certain other employees, provides
that the Company will indemnify the individual to the fullest extent permitted
by law for claims arising in his or her capacity as a director, officer,
employee or agent of the Company, provided that he or she acted in good faith
and in a manner that he or she reasonably believed to be in, or not opposed to,
the Company’s best interests and, with respect to any criminal proceeding, had
no reasonable cause to believe that his or her conduct was unlawful. In the
event that the Company does not assume the defense of a claim against the
director, officer, employee or agent, the Company is required to advance his or
her expenses in connection with his or her defense, provided that he or she
undertakes to repay all amounts advanced if it is ultimately determined that he
or she is not entitled to be indemnified by the Company.
The
foregoing summary of the Company’s standard indemnification
agreement does not purport to be complete and is qualified in its
entirety by reference to the form of indemnification
agreement, a
copy of which is filed as Exhibit 10.1 to this Current Report on Form
8-K.
Item
5.02. Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
On
December 27, 2010, the Company entered into an Employment Agreement (“Employment
Agreement”) with Mr. Cui. Under the terms of the Employment Agreement, Mr. Cui’s
term of employment as Interim Chief Financial Officer began on December 10, 2010
(the “Effective Date”) and shall end on the date that a permanent Chief
Financial Officer is named, though the term may automatically extend for
additional one-year terms, unless terminated in accordance with the Employment
Agreement. Mr. Cui’s cash compensation under the Employment Agreement is RMB
192,000 annually (approximately $29,090), plus discretionary bonuses based on
performance. Under the Employment Agreement, Mr. Cui is also eligible to
participate in any standard employee benefit plan, and may elect to have the
Company pay the reasonable cost of membership for Mr. Cui, his spouse, and
dependent children not greater than 21 years of age, for a private patient
medical plan with a reputable medical expense insurance scheme as the Company
shall decide from time to time. The Employment Agreement also contains customary
non-competition, confidentiality, non-disclosure, and intellectual property
assignment provisions.
The
Employment Agreement is subject to termination by the Company for cause at any
time. If it is terminated for cause, Mr. Cui will not be entitled to any
remuneration except for salary through the date of termination. The Employment
Agreement is also subject to termination by the Company without cause upon one
month’s notice. If it is terminated without cause by the Company, Mr. Cui will
be entitled to any earned but unpaid salary through the end of the one-month
notice period and any earned but unpaid bonus for any calendar year preceding
the year in which the termination occurs. In addition, Mr. Cui will be entitled
to receive continued payments of his salary after termination under certain
circumstances as follows: one month following termination effective prior to the
first anniversary of the Effective Date; two months following termination
effective prior to the second anniversary of the Effective Date; and three
months following termination effective prior to or after the third anniversary
of the Effective Date.
The
Employment Agreement is also subject to termination by Mr. Cui upon one month’s
notice if (1) there is a material reduction in his authority, duties and
responsibilities, or (2) there is a material reduction in his annual salary
before the next annual salary review. In addition, Mr. Cui may resign prior to
the expiration of the Employment Agreement upon approval by the Company’s board
of directors or an alternative arrangement with respect to Mr. Cui is approved
by the board of directors. If so terminated, Mr. Cui will not be entitled to any
remuneration except for salary through the date of termination. The Employment
Agreement further provides that Mr. Cui is not entitled to severance benefits
upon termination under any of the foregoing circumstances.
This
brief description of the terms of the Employment Agreement is qualified by
reference to the provisions of this agreement. The Employment
Agreement is included as Exhibit 10.2 to this Report, and is hereby incorporated
by reference herein.
Item
9.01
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Financial
Statements and Exhibits
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Exhibit
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Description
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10.1
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Form
of Director and Officer Indemnification Agreement
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10.2
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Employment
Agreement, dated as of December 27, 2010, between the Company and Ke
Marcus
Cui
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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CHINA
BAK BATTERY, INC.
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Date:
January 3, 2011
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By:
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/s/ Ke Marcus Cui
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Ke
Marcus Cui
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Interim
Chief Financial
Officer
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EXHIBITS
Exhibit
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Description
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10.1
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Form
of Director and Officer Indemnification Agreement
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10.2
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Employment
Agreement, dated as of December 27, 2010, between the Company and Ke
Marcus Cui
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