<PAGE> 1
As filed with the Securities and Exchange Commission on February 3, 1997
Registration No. ________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
BOLDER TECHNOLOGIES CORPORATION
(Exact Name of Registrant as Specified in its Charter)
----------------------
DELAWARE 84-1166231
(State of Incorporation) (I.R.S. Employer Identification No.)
----------------------
5181 WARD ROAD, SUITE 103
WHEAT RIDGE, COLORADO 80033
----------------------
(Address of Principal Executive Offices)
1996 EQUITY INCENTIVE PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
----------------------
(Full Titles of the Plans)
DANIEL S. LANKFORD
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
5181 WARD ROAD, SUITE 103
WHEAT RIDGE, COLORADO 80033
(303) 422-8200
----------------------
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
COPIES TO:
CARRIE L. SCHIFF, ESQ.
COOLEY GODWARD LLP
2595 CANYON BOULEVARD, SUITE 250
BOULDER, COLORADO 80302-6737
(303) 546-4000
----------------------
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
==============================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and
Common Stock (par
value $.001) 1,118,813 $7.1384 $7,986,534.72 $2,420.16
==============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and (h)(1) based upon (i) the
weighted average of the exercise prices (ranging from $.09 to $14.88) of
894,419 options outstanding under the 1996 Equity Incentive Plan, (ii)
the weighted average of the purchase prices (ranging from $8.93 to
$12.97) of 40,000 purchase rights outstanding under the 1996 Employee
Stock Purchase Plan, and (iii) $15.25, the average of the high and low
prices of the Registrant's Common Stock on January 30, 1997, as reported
on the Nasdaq Stock Market (National Market). The following chart
illustrates our calculation of the registration fee:
<TABLE>
<CAPTION>
==============================================================================================================
TYPE OF SHARES NUMBER OF SHARES OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Shares issuable pursuant
to options outstanding
under the 1996 Equity
Incentive Plan 894,419 $5.2508 $4,696,415.29
- --------------------------------------------------------------------------------------------------------------
Shares issuable upon
exercise of options
available for grant
under the 1996 Equity
Incentive Plan 184,394 $15.25 $2,812,008.50
- --------------------------------------------------------------------------------------------------------------
Shares issuable pursuant
to purchase rights
outstanding under the
1996 Employee Stock
Purchase Plan 40,000 $11.9514 $478,056.00
==============================================================================================================
</TABLE>
================================================================================
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Bolder Technologies Corporation (the
"Registrant") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Registrant's latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Act"), that contains audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed, or (2) the Registrant's
effective registration statement on Form 10, Form 10-SB or Form 20-F filed
under the Exchange Act containing audited financial statements for the
Registrant's latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report,
prospectus or registration statement referred to in (a) above.
(c) The description of the Registrant's Common Stock which is
contained in a registration statement filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
of this registration statement from the date of filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Act.
The Registrant's Restated Certificate of Incorporation provides for the
elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Registrant and its stockholders. These
provisions do not eliminate the directors' duty of care and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Registrant, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
any transaction from which the director derived an improper personal benefit,
and for payment of dividends or approval of stock repurchases or redemptions
that are unlawful under Delaware law. The provision does not affect a
director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
The Registrant has entered into indemnification agreements with each of
its directors and executive officers under which the Registrant has indemnified
each of them against expenses and losses incurred for claims brought against
them by reason of their being a director or executive officer of the Registrant,
and the Registrant maintains directors' and officers' liability insurance.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
1
<PAGE> 4
EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3(i).2 to the Registrant's
registration statement on Form SB-2 (Registration No. 333-2500-D)).
4.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3(ii).2 to the Registrant's registration
statement on Form SB-2 (Registration No. 333-2500-D)).
4.3 Specimen stock certificate (incorporated by reference to Exhibit 4.2
to the Registrant's registration statement on Form SB-2 (Registration
No. 333-2500-D)).
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24 Power of Attorney (included on page II-1).
99.1 1996 Equity Incentive Plan, including forms of options granted to
employees and non-employee directors thereunder (incorporated by
reference to Exhibit 10.2 to the Registrant's registration
statement on Form SB-2 (Registration No. 333-2500-D)).
99.2 Amendments to 1996 Equity Incentive Plan, dated December 11, 1996.
99.3 Amendments to 1996 Equity Incentive Plan, dated January 30, 1997.
99.4 1996 Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.3 to the Registrant's registration statement on Form SB-2
(Registration No. 333-2500-D)).
</TABLE>
2
<PAGE> 5
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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 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 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 end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post- effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(b) That, for the purpose of determining any liability under
the 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.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 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 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.
3. Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
registrant, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the 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 Act and will be governed by the final adjudication of such
issue.
3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Act, 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
Wheat Ridge, State of Colorado, on the 31st day of January, 1997.
BOLDER TECHNOLOGIES CORPORATION
By: /s/ Daniel S. Lankford
---------------------------------------
Daniel S. Lankford
Chairman of the Board, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Daniel S. Lankford and Joseph F.
Fojtasek, and each of them, as his true and lawful attorneys-in-fact and
agents, 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) to this Registration
Statement, and to file the same, with all exhibits thereto, and all documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Act, this Registration Statement has
been signed by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Daniel S. Lankford Chairman of the Board, President, Chief January 31, 1997
- ------------------------ Executive Officer and Director (Principal
Daniel S. Lankford Executive Officer)
/s/ Joseph F. Fojtasek Chief Financial Officer, Vice President, January 31, 1997
- ------------------------ Finance and Administration, Treasurer and
Joseph F. Fojtasek Secretary (Principal Financial Officer)
Director January ___, 1997
- ------------------------
Tristan E. Juergens
/s/ Carl S. Stutts Director January 31, 1997
- ------------------------
Carl S. Stutts
/s/ Wilmer R. Bottoms Director January 31, 1997
- ------------------------
Wilmer R. Bottoms
/s/ David L. Riegel Director January 31, 1997
- ------------------------
David L. Riegel
</TABLE>
II-1
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
NUMBER
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3(i).2
to the Registrant's registration statement on Form SB-2
(Registration No. 333-2500-D)).
4.2 Amended and Restated Bylaws of the Registrant (incorporated
by reference to Exhibit 3(ii).2 to the Registrant's
registration statement on Form SB-2 (Registration No.
333-2500-D)).
4.3 Specimen stock certificate (incorporated by reference to
Exhibit 4.2 to the Registrant's registration statement on
Form SB-2 (Registration No. 333-2500-D)).
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24 Power of Attorney (included on page II-1).
99.1 1996 Equity Incentive Plan, including forms of options
granted to employees and non-employee directors
thereunder (incorporated by reference to Exhibit 10.2
to the Registrant's registration statement on Form SB-2
(Registration No. 333-2500-D)).
99.2 Amendments to 1996 Equity Incentive Plan, dated December 11,
1996.
99.3 Amendments to 1996 Equity Incentive Plan, dated January 30,
1997.
99.4 1996 Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.3 to the Registrant's
registration statement on Form SB-2 (Registration
No. 333-2500-D)).
</TABLE>
II-2
<PAGE> 1
EXHIBIT 5.1
COOLEY GODWARD LLP ATTORNEYS AT LAW San Francisco, CA
415 693-2000
2595 Canyon Boulevard Palo Alto, CA
Suite 250 415 843-5000
Boulder, CO
80302-6737 Menlo Park, CA
Main 303 546-4000 415 843-5000
Fax 303 546-4099
San Diego, CA
619 550-6000
Denver, CO
http://www.cooley.com 303 606-4800
JAMES C. T. LINFIELD
303 546-4010
[email protected]
January 31, 1997
Bolder Technologies Corporation
5181 Ward Road, Suite 103
Wheat Ridge, Colorado 80033
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Bolder Technologies Corporation (the "Registrant") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the offering of up to 1,078,813
shares of the Registrant's Common Stock, $.001 par value, pursuant to the
Registrant's 1996 Equity Incentive Plan (the "Equity Incentive Plan"), and up
to 40,000 shares of the Registrant's Common Stock, $.001 par value, pursuant to
the Registrant's 1996 Employee Stock Purchase Plan (the "Employee Stock
Purchase Plan") (collectively, the "Shares").
In connection with this opinion, we have (i) examined the Registration
Statement and the related Prospectuses, (ii) reviewed the Registrant's
Certificate of Incorporation and Bylaws, as amended, and such other documents,
records, certificates, memoranda and other instruments as we deem necessary as
a basis for this opinion, and (iii) assumed that the Shares will be sold at a
price established in accordance with Section 153 of the Delaware General
Corporation Law. We also have assumed the genuineness and authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof, and the due execution and delivery
of all documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when issued and sold in accordance with the Equity Incentive
Plan, the Employee Stock Purchase Plan, the Registration Statement and the
related Prospectuses, will be validly issued, fully paid and nonassessable
(except as to shares issued pursuant to deferred payment arrangements, which
will be fully paid and nonassessable when such deferred payments are made in
full).
<PAGE> 2
Bolder Technologies Corporation
January 31, 1997
Page Two
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ JAMES C. T. LINFIELD
----------------------------------------
James C. T. Linfield
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and all references to our Firm) included in or made a part of this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Denver, Colorado,
February 3, 1997.
<PAGE> 1
EXHIBIT 99.2
AMENDMENTS TO
1996 EQUITY INCENTIVE PLAN OF
BOLDER TECHNOLOGIES CORPORATION
Adopted December 11, 1996
Section 7(a) of the 1996 Equity Incentive Plan of Bolder Technologies
Corporation, a Delaware corporation (the "Company") (the "Incentive Plan"), is
hereby amended in its entirety to read as follows:
"(a) Initial Grant for Non-Employee Directors. Each person who,
after the Company's initial public offering of shares of common stock is
effective, is elected for the first time to be a Non-Employee Director
automatically shall, upon the date of initial election to be a Non-Employee
Director by the Board or stockholders of the Company, be granted an option
to purchase ten thousand (10,000) shares of common stock of the Company on
the terms and conditions set forth herein."
Section 7(g) of the Incentive Plan is hereby amended in its entirety to
read as follows:
"(g) Vesting. Each initial Non-Employee Director's option shall
become exercisable in five (5) equal installments on each of the first five
anniversaries of the date of grant of the option; provided that the
optionee has, during the entire period prior to each such vesting date,
continuously served as a Non-Employee Director or employee of or consultant
to the Company or any Affiliate, whereupon such option shall become fully
exercisable in accordance with its terms with respect to that portion of
the shares represented by that installment.
Each annual Non-Employee Director's option shall become exercisable in
installments over a period of three (3) years from the date of grant
commencing on the date one (1) year after the date of grant of the option,
with thirty-three percent (33%) becoming exercisable one (1) year after the
date of grant, thirty-four percent (34%) becoming exercisable two (2) years
after the date of grant and the remaining thirty-three percent (33%)
becoming exercisable three (3) years after the date of grant; provided that
the optionee has, during the entire period prior to such vesting date,
continuously served as a Non-Employee Director or employee of or consultant
to the Company or any Affiliate, whereupon such option shall
1.
<PAGE> 2
become fully exercisable in accordance with its terms with respect to that
portion of the shares represented by that installment."
2.
<PAGE> 1
EXHIBIT 99.3
AMENDMENTS TO
1996 EQUITY INCENTIVE PLAN OF
BOLDER TECHNOLOGIES CORPORATION
Adopted January 30, 1997
Section 7(c) of the 1996 Equity Incentive Plan of Bolder Technologies
Corporation, a Delaware corporation (the "Company") (the "Incentive Plan"), is
hereby amended in its entirety to read as follows:
"(c) Term. The term of each Non-Employee Director's option commences
on the date it is granted and, unless sooner terminated as set forth
herein, expires on the date ("Expiration Date") five (5) years and ninety
(90) days from the date of grant. If the Non-Employee Director's
Continuous Status as an Employee, Director or Consultant terminates, the
option shall terminate on the earlier of the Expiration Date or the date
ninety (90) days following the date of termination of such Continuous
Status. In any and all circumstances, a Non-Employee Director's option may
be exercised following termination of his or her Continuous Status as an
Employee, Director or Consultant only as to that number of shares as to
which it was exercisable on the date of termination of such status under
the provisions of subsection 7(g)."
1.
