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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K/A
AMENDMENT NO. 2
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): January 20, 2005
Medina Coffee, Inc.
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(Exact Name of Registrant as Specified in Charter)
Nevada 000-49712 88-0442833
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(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
BAK Industrial Park, No. 1 BAK Street
Kuichong Town, Longgang District
Shenzhen, People's Republic of China
Ph: (86-755) 8977-0093 518119
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(Address of Principal Executive Offices) (Zip Code)
12890 Hilltop Road, Argyle, Texas 76226
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(Former Name or Former Address, if Changed Since Last Report) (Zip Code)
Registrant's telephone number, including area code: (860) 687-2200
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):
[_] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[_] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[_] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[_] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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EXPLANATORY NOTE
This Amendment No. 2 to Current Report on Form 8-K/A (this "Amendment")
amends the Current Report on Form 8-K filed on January 21, 2005 (the "Original
Filing"). This Amendment was filed to (i) clarify in Item 4.01 that no
additional disclosure regarding audit uncertainty was provided as such
uncertainty does not pertain to BAK International, the accounting survivor
following the recapitalization; and (ii) amend Item 5.03 to delete the reference
that the registrant would be filing a transition report for the year ended
September 30, 2004 as a result of its change of year end. Pursuant to Rule
12b-15 under the Securities Exchange Act of 1934, as amended, the complete text
of Item 4.01 and Item 5.03, as amended, is set forth below. The remainder of the
Form 8-K is unchanged and is not reproduced in this Amendment. This Amendment
speaks as of the original filing date of the Form 8-K and reflects only the
changes discussed above. No other information included in the Original Filing,
including the Company's financial statements and the footnotes thereto, has been
modified or updated in any way.
This Amendment should be read together with other documents that the
registrant has filed with the Securities and Exchange Commission subsequent to
the filing of our Original Filing. Information in such reports and documents
updates and supersedes certain information contained in this Amendment. The
filing of this Amendment shall not be deemed an admission that our Original
Filing, when made, included any known, untrue statement of material fact or
knowingly omitted to state a material fact necessary to make a statement not
misleading.
Section 4--Changes in Registrant's Certifying Accountant
Item 4.01. Changes in Registrant's Certifying Accountant.
On January 20, 2005, the Company dismissed George Stewart, C.P.A. as
its independent registered public accounting firm as part of the change of
control transaction reported under Item 5.01 of this Current Report. The
Company's Board of Directors approved the dismissal of George Stewart, C.P.A. on
January 20, 2005. As a result of the change in control, BAK International became
the accounting survivor for reporting purposes.
No accountant's report on the financial statements for the fiscal years
ended December 31, 2003 and 2002, respectively, contained an adverse opinion or
a disclaimer of opinion or was qualified or modified as to uncertainty, audit
scope or accounting principles, except a going concern opinion expressing
substantial doubt about the ability of the Company to continue as a going
concern. No additional disclosure regarding this uncertainty is provided as such
uncertainty does not pertain to BAK International, the accounting survivor
following the recapitalization referenced in Item 1.01 of this Current Report.
During the Company's two most recent fiscal years (ended December 31,
2004 and 2003) and from January 1, 2005 to the date of this Report, there were
no disagreements with the Company's independent registered accounting firm on
any matter of accounting principles or practices, financial statement
disclosure, or auditing scope or procedure. There were no reportable events, as
described in Item 304(a)(1)(iv)(B) of Regulation S-B, during the Company's two
most recent fiscal years (ended December 31, 2004 and 2003) and from January 1,
2005 to the date of this Report.
Effective January 20, 2005, the Company appointed Schwartz Levitsky
Feldman L.L.P. as its independent registered public accounting firm.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
The Board of Directors of the Company adopted Amended and Restated
Bylaws (the "New Bylaws") effective January 20, 2005. The material changes in
the New Bylaws are as follows:
(1) The Company's registered office was fixed in Article I of the
previous bylaws (the "Old Bylaws"), but Section 1.1 of the New
Bylaws provides that the registered office will be such office
as set forth from time to time in the Company's Articles of
Incorporation or an amendment thereto.
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(2) According to Section 2 of Article II of the Old Bylaws, the
annual meeting of the shareholders was to be held on the 1st
of July, but Section 2.2 of the New Bylaws provides that the
annual meeting shall be held on a date determined by the Board
of Directors.
(3) Section 2.4 of the New Bylaws provides that special meetings
of the shareholders may be called by the President or
Secretary at the request in writing of the holders of not less
than thirty percent (30%) of all the shares issued,
outstanding and entitled to vote. Section 3 of Article II of
the Old Bylaws required the request of not less than ten
percent (10%) of the voting power of the Company.
(4) According to Section 2.6 of the New Bylaws, quorum at a
meeting of shareholders consists of the holders of
thirty-three percent (33%) of the shares entitled to vote
rather than a majority of the shares entitled to vote, as
provided in Section 7 of Article II of the Old Bylaws.
(5) A proxy to be used at a meeting of the shareholders must bear
a date not more than six (6) months prior to such meeting, as
provided in Section 2.8 of the New Bylaws, rather than eleven
(11) months, as provided in Section 9 of Article II of the Old
Bylaws.
(6) The New Bylaws do not list express powers of the Company's
management, unlike Section 1 of Article III of the Old Bylaws.
Instead, according to Section 3.1 of the New Bylaws, the Board
of Directors generally may exercise all such powers of the
Company and do all such lawful acts and things that are not
required to be done by the shareholders.
(7) Section 3.5 of the New Bylaws provides that all vacancies in
the Board of Directors are to be filled by the Board of
Directors. Section 4 of Article III of the Old Bylaws,
however, provided that the shareholders could elect a director
to fill a vacancy not filled by the Board of Directors.
(8) Section 3.11 of the New Bylaws provides that no contract or
transaction between the Company and one or more of its
directors or officers is void if certain criteria is met. The
Old Bylaws did not contain a similar provision.
(9) Section 5.6 of the New Bylaws provides that the Board of
Directors may authorize executive employment contracts. The
Old Bylaws did not contain a similar provision.
(10) The New Bylaws include descriptions for the powers and duties
of assistant secretaries (Section 5.11) and assistant
treasurers (Section 5.13), which the Old Bylaws did not
include.
(11) Section 5.14 of the New Bylaws provides that the Company may
secure a bond to protect it from loss in the event of
defalcation by any of its officers. The Old Bylaws did not
contain a similar provision.
(12) Section 6.2 of the New Bylaws provides what steps may be taken
to replace lost certificates. The Old Bylaws did not contain a
similar provision.
(13) Section 6.3 of the New Bylaws provides the process for
transferring shares of stock. The Old Bylaws did not contain a
similar provision.
(14) Section 7.1 of the New Bylaws provides that dividends of the
Company's shares may be declared by the Board of Directors.
The Old Bylaws did not contain a similar provision.
(15) Section 7.2 of the New Bylaws provides that the Board of
Directors may create a reserve out of the surplus of the
Company in order to provide for contingencies. The Old Bylaws
did not contain a similar provision.
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(16) Section 7.3 of the New Bylaws provides that meetings of
directors, shareholders or committee members may take place by
means of conference telephone or similar equipment. The Old
Bylaws did not contain a similar provision.
(17) Section 7.5 of the New Bylaws provides that the fiscal year of
the Company will be fixed by resolution of the Board of
Directors. The Old Bylaws did not contain a similar provision.
(18) Section 7.8 of the New Bylaws provides that the Company may
purchase and maintain insurance on behalf of the Company and
any person whom it has the power to indemnify. The Old Bylaws
did not contain a similar provision.
(19) Section 7.10 of the New Bylaws provides that the Company's
bylaws may be amended by the Board of Directors. Section 1 of
Article VI of the Old Bylaws allowed for the shareholders to
amend the bylaws.
(20) Section 7 of Article IV of the Old Bylaws provided that the
President is ex-officio a member of all of the standing
committees. The New Bylaws do not contain a similar provision.
(21) Section 4 of Article V of the Old Bylaws provided that the
Board of Directors shall send an annual report to the
shareholders no later than 120 days after the close of the
fiscal year. The New Bylaws do not contain a similar
provision.
(22) Section 7 of Article V of the Old Bylaws provided that the
president or any vice president and the secretary or assistant
secretary are authorized to vote on behalf of the Company any
shares of another corporation held by the Company. The New
Bylaws do not contain a similar provision.
The Board of Directors approved on January 20, 2005 a change in the
Company's fiscal year end from December 31 to September 30. This change is being
effectuated in connection with the exchange transaction described in Item 1.01
above.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
China BAK Battery, Inc. (f.k.a. Medina Coffee, Inc.) has duly caused this
amended report to be signed on its behalf by the undersigned hereunto duly
authorized.
China BAK Battery, Inc.
(f.k.a. Medina Coffee, Inc.)
/s/ Xiangqian Li
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Xiangqian Li, President and
Chief Executive Officer
DATED: June 22, 2005