<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 1998
REGISTRATION NO. 333-41625
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
BOLDER TECHNOLOGIES CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 84-1166231
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
4403 TABLE MOUNTAIN PARKWAY
GOLDEN, COLORADO 80403
(303) 215-7200
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
DANIEL S. LANKFORD
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BOLDER TECHNOLOGIES CORPORATION
4403 TABLE MOUNTAIN PARKWAY
GOLDEN, COLORADO 80403
(303) 215-7200
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
COPIES TO:
JAMES H. CARROLL, ESQ.
COOLEY GODWARD LLP
2595 CANYON BOULEVARD, SUITE 250
BOULDER, COLORADO 80302-6737
(303) 546-4000
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE PREVIOUSLY PAID
===================================================================================================================================
PROPOSED MAXIMUM PROPOSED AMOUNT OF
TITLE OF EACH CLASS OF SHARES TO BE OFFERING PRICE MAXIMUM AGGREGATE REGISTRATION FEE
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE PREVIOUSLY PAID
===================================================================================================================================
<S> <C> <C> <C> <C>
Series A Convertible Preferred Stock, $.001 par
value 336,200 (1) $50.00 $16,810,000 $4,959
Common Stock, $.001 par value(2) 453,870 (3) $11.25(4) $ 5,106,038(4) $1,506
------
$6,465
======
===================================================================================================================================
</TABLE>
(1) Includes such currently indeterminate number of shares of Common Stock as
shall be issued from time to time upon conversion of the Series A Preferred
Stock being registered hereby, for which no additional consideration will
be received and therefore no registration fee is required pursuant to Rule
457(i).
(2) Includes Preferred Share Purchase Rights ("Rights"). The Rights are
associated with and trade with the Common Stock. The value, if any,
attributable to the Rights is reflected in the market price of the Common
Stock.
(3) Reflects up to 453,870 shares of Common Stock which may be issued from time
to time in the event that the issuer elects to pay dividends on the Series
A Convertible Preferred Stock in the form of Common Stock rather than cash.
(4) Estimated in accordance with Rule 457(c) solely for the purpose of
computing the amount of the registration fee based on the average of the
high and low prices of the Registrant's Common Stock as reported on The
Nasdaq National Market on December 4, 1997, the date prior to the date this
Registration Statement was originally filed.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
===============================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JANUARY 28, 1998
PROSPECTUS
BOLDER TECHNOLOGIES CORPORATION
336,200 SHARES OF SERIES A CONVERTIBLE PREFERRED STOCK,
AN INDETERMINATE NUMBER OF SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION THEREOF
AND
UP TO 453,870 SHARES OF COMMON STOCK ISSUABLE AS DIVIDENDS
ON THE SERIES A CONVERTIBLE PREFERRED STOCK
This Prospectus relates to the offering of 336,200 Shares of Series A
Convertible Preferred Stock (the "Series A Preferred Stock"), as well as the
offering of shares of the Common Stock, par value $.001 per share ("Common
Stock") (the Series A Preferred Stock and the Common Stock are referred to
collectively as the "Shares"), of BOLDER Technologies Corporation ("Bolder" or
the "Company"), issuable upon conversion of the Company's Series A Preferred
Stock and up to 453,870 shares of Common Stock issuable as stock dividends on
the Series A Preferred Stock.
An aggregate of 336,200 shares of Series A Preferred Stock were issued
on October 8, 1997 (the "Closing Date") in a private placement to qualified
institutional buyers in transactions exempt from registration under Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act"). BT Alex.
Brown Incorporated (the "Initial Purchaser") was the initial purchaser of the
Series A Preferred Stock. Dividends on the Series A Preferred Stock are
cumulative from October 8, 1997 and are payable semi-annually commencing
December 31, 1997, at an annual rate equal to (i) $4.00 per share of Series A
Preferred Stock to the extent the dividend is paid in cash, and (ii) $4.50 per
share of Series A Preferred Stock to the extent the dividend is paid in shares
of Common Stock. Dividends are payable in cash or Common Stock or a combination
thereof, at the Company's option.
Each share of Series A Preferred Stock is convertible at the option of
the holder at any time after December 8, 1997, unless previously redeemed, into
Common Stock at a conversion price of $15.00 per share, subject to adjustment
under certain circumstances. The Series A Preferred Stock may be redeemed by the
Company under certain circumstances during the period beginning on October 8,
1999 and will be redeemed by the Company, subject to certain limitations, on
October 8, 2002 in each case at a redemption price of $50.00 per share, plus
accrued and unpaid dividends (the "Redemption Price"). In the event of certain
fundamental changes relating to the Company, the Series A Preferred Stock will
be repurchased at the option of the holders at the Redemption Price. Under
either circumstance, the Redemption Price may be paid in cash or Common Stock
or a combination thereof, at the Company's option.
All or part of the Shares may be offered by the selling stockholders
named herein (the "Selling Stockholders") from time to time for their own
account in transactions on The Nasdaq National Market, in negotiated
transactions or otherwise, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. The
Selling Stockholders may effect such transactions by selling the Shares to or
through broker-dealers and such broker-dealers may receive compensation in the
form of discounts, concessions or
<PAGE> 3
commission from the Selling Stockholders or the purchaser of the Securities for
whom such broker-dealers may act as agent or to whom they sell as principal or
both (which compensation to a particular broker-dealer might be in excess of
customary commissions).
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. The Company has agreed to bear
certain expenses in connection with the registration and sale of the Shares
being offered by the Selling Stockholders. The Selling Stockholders and any
broker-dealers participating in the distribution of the Shares may be deemed to
be "underwriters" within the meaning of the Securities Act, and any profit on
the sale of Shares by the Selling Stockholders and any commissions received by
any such broker-dealer may be deemed to be underwriting commissions under the
Securities Act.
The Shares have not been registered for sale by the Selling
Stockholders under the securities laws of any State as of the date of this
Prospectus. Brokers or dealers effecting transactions in the Shares should
confirm registration thereof under the securities laws of the states in which
such transactions occur, or the existence of any exemption from registration.
The Company's Common Stock is traded on The Nasdaq National Market
under the symbol "BOLD". On January 26, 1998, the last reported sale price of
the Common Stock on The Nasdaq National Market was $8.50 per share. Prior to
this offering, there has been no trading market for the Series A Preferred
Stock. The Series A Preferred Stock is not listed on any securities exchange or
quoted in any over-the-counter market. The Series A Preferred Stock has been
eligible for trading in the Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market. Any shares of Series A Preferred Stock
sold pursuant to this Registration Statement will not remain eligible for
trading on the PORTAL Market. Shares of Series A Preferred Stock which have not
been sold pursuant to this Registration Statement will remain eligible for
trading on the PORTAL Market. The Company cannot provide any assurance that a
secondary market for the shares of Series A Preferred Stock registered hereby
will develop.
---------------
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS," PAGE 6.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS JANUARY 28, 1998.
2.
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the Commission's
following Regional Offices: Chicago Regional Office, Suite 1400, CitiCorp
Center, 500 West Madison Street, Chicago, Illinois 60661; and New York Regional
Office, Seven World Trade Center, Suite 1300, New York, New York 10048. Copies
of such material can be obtained at prescribed rates from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549. The Commission maintains a World Wide Web site that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The address
of the site is http://www.sec.gov. Reports and other information concerning the
Company also may be inspected at the offices of the Nasdaq National Market, 1735
K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a registration statement on
Form S-3 (the "Registration Statement") under the Securities Act with respect to
the shares of the Company being offered hereby. This Prospectus, which
constitutes a part of the Registration Statement, does not contain all the
information set forth in the Registration Statement, certain portions of which
have been omitted as permitted by the rules and regulations of the Commission.
For further information with respect to the Company and the Common Stock,
reference is hereby made to the Registration Statement and the exhibits and
schedules filed therewith. Statements contained in this Prospectus as to the
contents of any contract or other documents referred to are not necessarily
complete, and in each instance reference is made to the copy of such contract or
other document filed as an exhibit to the Registration Statement, each such
statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission pursuant to the
Exchange Act are incorporated by reference in this Prospectus, except as
superseded or modified herein:
(1) the Company's Annual Report on Form 10-KSB for the year ended
December 31, 1996;
(2) the Company's Quarterly Reports on Form 10-QSB for the quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997;
(3) the Company's Current Report on Form 8-K, dated December 19, 1996;
(4) the Company's Current Report on Form 8-K, dated February 5, 1997;
(5) the Company's Current Report on Form 8-K, dated March 16, 1997;
3.
<PAGE> 5
(6) the Company's Current Report on Form 8-K, dated May 8, 1997;
(7) the Company's Current Report on Form 8-K, dated October 9, 1997;
(8) the Company's Current Report on Form 8-K, dated January 23, 1998;
and
(9) the description of the Common Stock contained in the Company's
Registration Statement on Form 8-A declared effective by the Commission on April
29, 1996, including any amendment or reports filed for the purpose of updating
such description.
All reports and documents filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Prospectus and prior to the termination of the offering of the shares
offered hereby shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained in any document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus 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 such
statement so modified or superseded shall not be deemed, except as modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the documents that have been or
may be incorporated by reference herein (other than exhibits to such documents
which are not specifically incorporated by reference into such documents). Such
requests should be directed to the Company at its principal executive offices:
Bolder Technologies Corporation, 4403 Table Mountain Drive, Golden, Colorado
80403, telephone: (303) 215-7200, Attention: Joseph F. Fojtasek.
-------------------------
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN
OFFER TO PURCHASE, ANY OF THE SECURITIES OFFERED BY THIS PROSPECTUS, OR THE
SOLICITATION OF A PROXY, IN ANY JURISDICTION IN WHICH, OR TO ANY PERSON TO WHOM,
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION OF AN OFFER OR PROXY
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY DISTRIBUTION OF
THE SECURITIES OFFERED HEREBY SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF
THE COMPANY SINCE THE DATE HEREOF.
4.
<PAGE> 6
The following information is qualified in its entirety by the more
detailed information and financial statements and notes appearing elsewhere in
this Prospectus and in the documents incorporated by reference herein. This
Prospectus contains forward-looking statements that involve risks and
uncertainties. The Company's actual results could differ materially from those
discussed herein. Factors that could cause or contribute to such differences
include, but are not limited to, those discussed in the section entitled "Risk
Factors."
THE COMPANY
BOLDER Technologies Corporation ("Bolder" or the "Company") is an
energy technology company that is developing and commercializing advanced, high
power, rechargeable battery systems based on its patented thin metal film
("TMF(TM)") technology. The Company's TMF battery uses proven lead acid
electrochemistry in a proprietary configuration that has higher power density
than any other commercially available battery system. The Company believes that
the high power and other performance characteristics of TMF batteries offer a
number of advantages over commercially available batteries in a broad range of
current and future applications.
The world market for rechargeable batteries was estimated to be between
$14 and $16 billion in 1995. Demand for rechargeable batteries is being driven
by the growing use of existing applications such as portable tools and
appliances, standby power systems, automotive and small engine starting,
electronics, and military and aerospace, as well as the development of new and
emerging applications such as hybrid electric vehicles and very small batteries
for engine starting. Past advances in battery technology have enabled new
applications, and the Company believes that its breakthrough TMF technology will
create opportunities for new battery powered products.
The Company believes that the combination of the following
characteristics of its prototype TMF battery systems offers advantages over
commercially available rechargeable batteries:
High Power. TMF batteries deliver higher sustained power than any other
commercially available battery technology.
Cost Effective. TMF batteries use inexpensive raw materials and a
straightforward manufacturing process.
No Memory Effect. TMF batteries have no memory effect, a negative
characteristic of nickel cadmium ("NiCd") batteries.
Small Size. High power density allows smaller TMF batteries to do the
same amount of work as larger conventional batteries in high rate
applications.
More Useful Work. TMF batteries can do more useful work between
recharges in high rate applications than a conventional battery of
similar size.
5.
<PAGE> 7
Faster Recharge. TMF batteries can be recharged in less than five
minutes with an appropriate charger.
Stable Discharge Voltage. TMF batteries provide consistent voltage
throughout their discharge cycle.
Cool Operation. TMF batteries have low impedance and, therefore,
generate little heat, even in high rate applications.
Multiple Form Factors. TMF batteries may be manufactured in a number of
form factors for a wide variety of applications.
Easy to Recycle. TMF batteries can be recycled using the existing
recycling process for lead acid batteries.
Bolder's objective is to become a major supplier of innovative
rechargeable batteries. To date, 84 companies have tested the Company's
prototype TMF batteries and over 2,000 companies have inquired about the
Company's battery products. Currently, many high power applications are served
by NiCd and traditional lead acid batteries. The Company believes that its TMF
batteries, when manufactured in commercial quantities, can substantially replace
NiCd batteries in many of these high power applications and that its TMF
batteries will become the battery of choice for certain applications currently
powered by traditional lead acid batteries, particularly applications which
require high power in a small package.
An integral part of the Company's strategy is to work with original
equipment manufacturer ("OEM") customers and strategic partners to develop
market opportunities and leverage its resources. The Company has agreements with
value added partners ("VAPs") for marketing and distribution of the Company's
products throughout North America and Europe and has a strategic relationship
with Johnson Controls, Inc. ("Johnson Controls"), one of the world's leading
suppliers of automotive batteries.
The Company has focused its initial product development efforts on its
sub-C cell, which is competitive with a widely used NiCd form factor, and is
currently engaged in product development efforts for new form factors such as a
1/16 inch thick prismatic, or flat, cell suitable for consumer electronics, and
the 5 Ah spiral wound cell suitable for very high power applications such as
professional power tools and hybrid electric vehicles. The Company has produced
over 61,000 prototype TMF batteries with its semi-automated pilot production
line and in May 1997 occupied a new manufacturing facility in Golden, Colorado.
This production facility has been designed to accommodate five high volume,
fully-automated production lines and two research and development lines. The
first of the fully-automated production lines has been delivered and installed
and is currently being tested and qualified.
Bolder Technologies Corporation was incorporated in Colorado in 1991
and reincorporated in Delaware in 1993. The Company's executive offices are
located at 4403 Table Mountain Drive, Golden, Colorado 80403, and its telephone
number is (303) 215-7200.
6.
<PAGE> 8
"BOLDER" and "TMF" are trademarks of Bolder Technologies Corporation. This
Prospectus contains trademarks of other companies.
RISK FACTORS
The following risk factors should be considered carefully in addition
to the other information contained or incorporated by reference in this
Prospectus before purchasing the Shares offered hereby.
POSSIBLE NONPAYMENT OF DIVIDENDS ON SERIES A PREFERRED STOCK; DEFICIENCY IN
FIXED CHARGES AND SERIES A PREFERRED STOCK DIVIDEND COVERAGE
Dividends on the Series A Preferred Stock are required to be paid
either in cash or in Common Stock. The Company presently intends to pay
dividends on the Series A Preferred Stock in Common Stock, although the Company
may pay dividends in cash or a combination of Common Stock and cash. If
dividends are paid in cash it could require the Company to pay $1,344,000
annually. If dividends are paid in Common Stock it will be dilutive to the
Common Stockholders. Dividends will be payable on the Series A Preferred Stock
only when, as and if declared by the Company's Board of Directors as permitted
under Delaware law. The Company has incurred net losses since its inception and
expects its losses to increase in the foreseeable future. While the Company
intends to pay dividends in Common Stock on the Series A Preferred Stock, it is
anticipated that the Company will continue to incur losses and thus will
continue to have a deficiency in fixed charges and preferred stock dividend
coverage. Dividends on the Series A Preferred Stock may be paid only out of
capital surplus (within the meaning of the Delaware General Corporation Law) or
net profits of the Company for the fiscal year in which the dividend is declared
and the preceding fiscal year. Unpaid dividends do not earn interest. Dividends
may be paid from a portion of the net proceeds of this offering. See
"Description of Capital Stock -- Series A Preferred Stock -- Dividends."
NO MARKET FOR SERIES A PREFERRED STOCK
The Series A Preferred Stock is a new issue of securities with no
established trading market. The Company does not intend to apply for a listing
of the Series A Preferred Stock on the Nasdaq National Market or any other
securities exchange or trading system. There is currently no established market
for the Series A Preferred Stock and there can be no assurance as to the
liquidity of markets that may develop for the Series A Preferred Stock, the
ability of holders to sell their Series A Preferred Stock, or the price of which
holders would be able to sell their Series A Preferred Stock. The Series A
Preferred has been eligible for trading in the PORTAL Market. Shares of Series A
Preferred Stock sold pursuant to this Registration Statement will not remain
eligible for trading on the PORTAL Market. Shares of Series A Preferred Stock
which have not been sold pursuant to this Registration Statement will remain
eligible for trading on the PORTAL Market. BT Alex. Brown Incorporated ("Alex.
Brown"), the initial purchaser of the Series A Preferred Stock in the Rule 144A
private placement, has advised the Company that it intends to make a market in
the Series A Preferred Stock. However, Alex. Brown is not obligated to do so,
and any market making with respect to the Series A Preferred Stock may be
discontinued at any time.
In recognition of the fact that the Selling Stockholders may wish to be
legally permitted to sell the Shares when each deems appropriate, the Company
has filed with the Commission a Registration Statement on Form S-3, of which
this Prospectus forms a part, with respect to, among other things, the resale of
the Shares from time to time at prevailing prices in the over-the-counter market
or in privately-negotiated transactions and has agreed to prepare and file such
amendments and supplements to the Registration Statement as may be necessary to
keep the Registration Statement effective until all Shares offered hereby have
been sold pursuant thereto or until such Shares are no longer, by reason of Rule
144 under the Securities Act or any other rule of similar effect, required to be
registered for the sale thereof by the Selling Stockholders.
DEVELOPMENT STAGE COMPANY; HISTORY OF OPERATING LOSSES
Bolder was founded in 1991 and has principally been engaged in research
and development activities. The Company's revenues to date have been derived
solely from technology transfer services, license fees, federal Small Business
Innovation Research ("SBIR") research and development agreements, customer
funded research and development agreements and limited sales of prototype
batteries for evaluation purposes only. The Company has incurred operating
losses since inception and as of September 30, 1997 had an accumulated
development stage deficit of $19.8 million (unaudited). The Company expects to
incur significant losses in the future as it continues its product development
efforts and seeks to establish its manufacturing, sales and marketing
capabilities. There can be no assurance that the Company will achieve or sustain
significant revenues or profitability in the future.
EARLY STAGE OF MANUFACTURING; MANUFACTURING RISKS; POTENTIAL CAPACITY
CONSTRAINTS AND RISKS OF PROPOSED EXPANSION
To date, the Company has not manufactured its TMF batteries on a
commercial scale. Until recently, the Company's TMF batteries have been only
manufactured on its pilot manufacturing line, which is able to produce prototype
cells in quantities sufficient to enable customer sampling and testing and
product development. The Company is currently in the early stages of
transitioning production to an automated high volume production line located in
the Company's new manufacturing facility which opened in May 1997. The
implementation of the new manufacturing facility, including its customized
manufacturing equipment, will continue to require substantial engineering work
and expenses and is subject to significant risks, including risks of cost
overruns and significant delays. In addition, in order to rapidly scale up the
Company's manufacturing capacity, Bolder will need to begin fabrication of its
second automated production line before completing full qualification of the
first line. In automating its manufacturing processes, the Company has been and
will continue to be dependent on Wright Industries, a developer of automated
production lines, which has only limited experience in producing equipment for
the manufacture of batteries. A key determinant of the Company's current and
future production capacity and profitability is the production yield of its
manufacturing process. Any failure by the Company to achieve acceptable yields
of commercial quality batteries in commercial quantities, and thereby to reduce
its unit manufacturing costs, could have a material adverse effect on the
Company's business, results of operations and financial condition.
The establishment of the Company's new manufacturing facility and the
development and implementation of automated production lines will entail
significant risks and will require a
7.
<PAGE> 9
substantial investment of the Company's capital, including a significant portion
of the net proceeds of this offering. As part of its manufacturing ramp-up, the
Company will need to hire and train a substantial number of new manufacturing
workers. The availability of skilled and unskilled workers in the Denver
metropolitan area, the site of the Company's new manufacturing facility, is
limited due to a relatively low unemployment rate. There can be no assurance
that the Company will successfully develop improved processes, design required
production equipment, enter into acceptable contracts for the fabrication of
such equipment, obtain timely delivery of such equipment, implement multiple
production lines or successfully operate the new facility. There can be no
assurance that the Company will be able to successfully automate its production
on a timely basis or at all, or that such automation will result in greater
manufacturing capacity or lower manufacturing costs than the Company's pilot
production line. Failure to commence volume manufacturing on a timely basis
could damage customer relationships, cause lost opportunities and have a
material adverse effect on the Company's business, results of operations and
financial condition.
DEVELOPMENT STAGE PRODUCT
Bolder has produced prototype products that the Company believes have
performance characteristics that are suitable for a broad market. However,
additional development will be required to enable the Company to consistently
produce battery systems with these characteristics. In addition, to achieve
broad commercialization of its products, the Company will need to reduce
manufacturing costs of its battery systems. There can be no assurance that the
Company's TMF batteries can be manufactured in commercial quantities to the
performance specifications demanded by customers. In addition, the Company's
success will depend significantly on its ability to meet OEM customer
requirements by developing and introducing on a timely basis new products and
enhanced or modified versions of its existing products. OEMs often require
unique configurations or custom designs for battery systems which must be
developed and integrated in the OEM's product well before the product is
launched by the OEM. Thus, there is often substantial lead time between the
commencement of design efforts for a customized battery system and the
commencement of volume shipments of the battery system to the OEM (referred to
as the "design in time"). If the Company is unable to design, develop and
introduce products that meet OEMs' and other customers' exacting requirements on
a timely basis, its business, results of operations and financial condition
could be materially adversely affected.
UNCERTAINTY OF MARKET ACCEPTANCE
To achieve market acceptance, the Company's TMF batteries must offer
significant price and/or performance advantages over other current and potential
alternative battery technologies in a broad range of applications. There can be
no assurance that the Company's rechargeable TMF batteries will achieve or
sustain any such advantages. Even if the Company's rechargeable TMF batteries
provide meaningful price or performance advantages, there can be no assurance
that they will achieve or maintain market acceptance in any potential market
application. The success of the Company's products also will depend upon the
level of market acceptance of OEMs' and other customers' end products which
incorporate the Company's TMF batteries, over
8.
<PAGE> 10
which the Company has no control. If the Company's rechargeable TMF batteries do
not achieve and maintain significant price and/or performance advantages over
other technologies and achieve significant and sustained market acceptance, or
if customers' applications which incorporate the Company's products do not
achieve lasting market acceptance, the Company's business, results of operations
and financial condition could be materially adversely affected.
RAPID EVOLUTION OF BATTERY TECHNOLOGIES
The battery industry has experienced, and is expected to continue to
experience, rapid technological change. There can be no assurance that the
Company's products will be able to compete effectively in any of its targeted
market segments. Various companies are seeking to enhance traditional battery
technologies, such as lead acid and NiCd, and other companies have recently
introduced or are developing rechargeable batteries based on nickel metal
hydride ("NiMH"), lithium and other emerging and potential technologies. There
can be no assurance that competing technologies that outperform the Company's
batteries will not be developed and successfully introduced.
FUTURE CAPITAL NEEDS; UNCERTAINTY OF ADDITIONAL FUNDING
The Company will require substantial funds to establish and operate
commercial manufacturing facilities, to market its products and to conduct the
necessary research and development and testing of its products. The Company may
have to obtain additional funding through other financing; however, it expects
that the net proceeds of the offering of the Series A Preferred Stock, together
with existing sources of liquidity and projected cash generated from operations,
will be sufficient to fund its activities for at least the next 12 months. There
can be no assurance that additional financing will be available when needed or
on terms acceptable to the Company. If additional funds are raised by issuing
equity securities, stockholders will incur dilution. If adequate funds are not
available, the Company may be required to delay, scale back or eliminate one or
more of its development programs or otherwise curtail or discontinue the
development, manufacture or sale of its TMF battery systems.
DEPENDENCE ON STRATEGIC RELATIONSHIPS
The Company expects to rely on a limited number of strategic
relationships to accelerate the commercialization of the Company's products by
assisting in the design and development of products for certain applications, as
well as to providing manufacturing and marketing expertise. The Company
currently has strategic relationships with Johnson Controls and six VAPs located
throughout North America and Europe. There can be no assurance that the Company
will be able to enter into any other such partnerships or that existing
relationships will achieve their goals. Even if the Company successfully
initiates additional strategic partnerships, there can be no assurance that the
partnerships will achieve their goals. The success of any strategic partnership
is dependent upon the general business condition of the partner, its commitment
to the strategic partnership, the skills and experience of its employees
responsible for the strategic partnership and the partner's timely and
satisfactory performance of its obligations under the partnership. To the extent
the Company enters into strategic partnerships, the terms of the partnerships
may require the Company and its partners to share revenues and/or expenses from
certain activities or for the Company to grant to its partners licenses to
9.
<PAGE> 11
manufacture, market and/or sell products based upon its TMF technology, which
could adversely affect the Company's profitability.
COMPETITION
Competition in the battery industry is, and is expected to remain,
intense. The competitors range from development stage companies to major
domestic and international companies. Many of these companies have financial,
technical, marketing, sales, manufacturing, distribution, and other resources
significantly greater than those of the Company. In addition, many of these
companies have name recognition, established positions in the market, and long
standing relationships with OEMs and other customers. While there is significant
development work being done by these competitors on various battery systems
(including electrochemistries such as NiCd, NiMH and lithium), the Company
believes that much of this effort is focused on achieving higher energy
densities for low power applications such as portable electronics. There can be
no assurance that one or more new, higher power battery technologies will not be
introduced which could be directly competitive with or be superior to the
Company's TMF technology.
The Company believes that its primary competitors are existing
suppliers of NiCd and lead acid batteries. In applications such as portable
tools and appliances, and certain electronic and medical products, the Company's
primary competitors will be suppliers of NiCd batteries, including SANYO Energy
(USA) Corporation ("SANYO"), Panasonic Industrial Company, a division of
Matsushita Electric Corporation of America ("Panasonic"), Energizer Power
Systems, a division of Eveready Battery Company ("Energizer") and SAFT America,
Inc. ("SAFT"). All of these companies are very large and have substantial
resources and market presence. The Company expects that it will compete against
NiCd batteries in the targeted application segments on the basis of performance,
cost and ease of recycling. There can be no assurance that the Company will be
able to compete successfully against manufacturers of NiCd batteries in any of
the targeted applications.
In applications such as car starting, standby power, very small
batteries for engine starting, and a few medical and electronics applications,
the Company expects that its primary competition will be from lead acid
batteries. The primary suppliers of small lead acid batteries used in non
automotive applications are Yuasa Exide, Inc. ("Yuasa"), Exide Corporation,
Matsushita Electric Corporation of America ("Matsushita"), Hawker Energy
Products, Inc. ("Hawker"), CSB Battery of America Corp., and GS Battery USA,
Inc., a division of Japan Storage Battery Co., Limited ("GS Battery"). The
primary suppliers of automotive batteries are Johnson Controls, Inc., Exide
Corporation, GNB Inc. and Delphi Energy & Engine Management Systems (formerly
Delco), a Division of General Motors Corporation ("Delphi"). All of these
companies are very large and have substantial resources and market presence. The
Company expects that it will compete with lead acid batteries on the basis of
performance in the targeted application segments. In addition, under the terms
of its strategic partnership with Johnson Controls, the Company has granted
Johnson Controls certain license rights which will allow Johnson Controls to
compete with the Company in the lawn and garden starting, motorcycle starting,
HEV, standby power and, beginning July 1, 1999, for emergency jump-starting
batteries
10.
<PAGE> 12
for lawn and garden starting, motorcycle starting and automobile and truck
starting. There can be no assurance that the Company will be able to compete
successfully against manufacturers of traditional lead acid batteries in any of
the targeted applications or to compete successfully with Johnson Controls in
the markets where Johnson Controls has a royalty bearing license from the
Company.
MANAGEMENT OF GROWTH
The Company's transition from a development stage company to a high
volume manufacturing company could place a significant strain on the Company's
resources. If the Company's products achieve market acceptance, it will need to
increase the number of its employees and enhance its operating systems and
practices. There can be no assurance that the Company will be able to
successfully manage its transition to being a high volume manufacturing company,
including the expansion of its operations and marketing of its products, and its
failure to do so could have a material adverse effect on the Company's business,
results of operations and financial condition.
DEPENDENCE ON VALUE ADDED PARTNER NETWORK
The Company intends to channel a significant portion of its sales
through VAPs in the future. The Company currently has a VAP network of six
distributors throughout North America and Europe. The VAP agreements are subject
to minimum performance criteria and standard termination provisions. VAPs may
sell competitive products. Although the Company has established multiple sources
for VAP services for its products, any disruption of operations at certain of
the Company's VAPs or the loss of certain of the Company's VAPs could materially
adversely affect the Company's business, results of operations and financial
condition.
CUSTOMER CONCENTRATION
The Company's sales to date have been, and are expected in the future
to be, concentrated in a limited number of large customers. If any of these
customers were to decide not to purchase the Company's products in the future,
the Company's business, results of operations and financial condition could be
materially adversely affected. The timing of orders from large customers, and
shipments against those orders, can also result in significant quarter to
quarter variations in the Company's revenues and profit. In addition, there can
be no assurance that the Company will continue to secure the business of a
significant number of new customers or that demand for the Company's products
will be sufficient to ensure a broad customer base and sustainable source of
revenue. The occurrence of any of these events could have a material adverse
effect on the Company's business, results of operations and financial condition.
Through September 30, 1997, the Company has recorded a significant
portion of its revenue from one customer. Such revenue was earned by the Company
for providing research and development services under a technology transfer
arrangement. The Company's business plan does not contemplate that such services
will continue to a significant degree after the Company emerges from the
development stage, and, accordingly, such revenue from research and development
services should not be viewed as recurring or indicative of the Company's future
revenue, if any, from the sale of its batteries in commercial quantities.
FLUCTUATIONS IN QUARTERLY RESULTS
The Company's quarterly operating results can be expected to fluctuate
in the future. These fluctuations may be caused by many factors, including,
among others: the size and timing of individual purchase orders; the long sales
cycle in the OEM markets for the Company's products; market acceptance of new
products; the time required to successfully commence
11.
<PAGE> 13
commercial manufacturing using the Company's new fully-automated high volume
production line; implementation of additional automated production lines;
manufacturing yields and efficiency; changes in the Company's operating
expenses; timing of revenue recognized under the Company's technology transfer
arrangement with Johnson Controls; the mix of sales to OEMs and VAPs; product
development programs; and general industry and economic conditions. As a result
of these and other factors, the Company believes that period to period
comparisons of its results of operations are not necessarily meaningful and
should not be relied upon as indications of future performance. It is possible
that the Company's future quarterly operating results from time to time will not
meet the expectations of market analysts or investors, which would likely have
an adverse effect on the market price of the Company's Common Stock. In
addition, there can be no assurance that the Company will achieve or sustain
profitability on a quarterly or annual basis.
DEPENDENCE ON SUPPLIERS
The Company is dependent on sole or limited source suppliers for
certain key raw materials used in its products, particularly thin lead foil,
lead oxide molded components, separators, acid and expander components. The
Company generally purchases sole or limited source raw materials pursuant to
purchase orders placed from time to time and has no long-term contracts or other
guaranteed supply arrangements with its sole or limited source suppliers. There
can be no assurance that the Company's suppliers will be able to meet the
Company's requirements relative to specifications and volumes for key raw
materials or that the Company will be able to locate alternative sources of
supply. There can be no assurance that the Company will be able to purchase raw
materials at an acceptable cost. In addition, the raw materials which the
Company utilizes must be of a very high quality. The Company at times in the
past has experienced delays in product development due to the delivery of
nonconforming raw materials from its suppliers.
PATENTS AND PROPRIETARY RIGHTS
The Company's ability to compete effectively will depend in part on its
ability to maintain the proprietary nature of its technology and manufacturing
processes through a combination of patent and trade secret protection, and
non-disclosure agreements. The Company holds five issued United States patents
which expire beginning in 2009 and ending in 2013. In addition, the Company has
five United States and a number of foreign patents pending. Patent applications
in the United States are maintained in secrecy until patents issue, and since
publication of discoveries in the scientific or patent literature tends to lag
behind actual discoveries, the Company cannot be certain that it was the first
creator of inventions covered by pending patent applications or the first to
file patent applications on such inventions. There can be no assurance that the
Company's pending patent applications will result in issued patents or that any
of its issued patents will afford meaningful protection against a competitor. In
addition, patent applications filed in foreign countries are subject to laws,
rules and procedures which differ from those of the United States, and thus
there can be no assurance that foreign patent applications related to issued
United States patents will issue. Furthermore, if these patent applications
issue, some foreign countries provide significantly less patent protection than
the United States.
12.
<PAGE> 14
The status of patents involves complex legal and factual questions and
the breadth of claims issued is uncertain. Accordingly, there can be no
assurance that patent applications filed by the Company will result in patents
being issued or that its patents, and any patents that may be issued to it in
the future, will afford protection against competitors with similar technology.
In addition, no assurances can be given that patents issued to the Company will
not be infringed upon or designed around by others or that others will not
obtain patents that the Company would need to license or design around. If
existing or future patents containing broad claims are upheld by the courts, the
holders of such patents could require companies to obtain licenses. If the
Company is found to be infringing third-party patents, there can be no assurance
that any necessary licenses would be available on reasonable terms, if at all.
The Company could incur substantial costs in defending itself, its
licensees, distributors or customers in litigation brought by others or
prosecuting infringement claims against third parties. If the outcome of any
such litigation were unfavorable to the Company, the Company's business,
financial condition and results of operations could be materially adversely
affected. To determine the priority of inventions, the Company may have to
participate in interference proceedings declared by the United States Patent and
Trademark Office or comparable proceedings in foreign patent offices, which
could result in substantial cost to the Company and may result in an adverse
decision as to the priority of the Company's inventions.
In addition to patent protection, the Company relies on the law of
unfair competition and trade secrets to protect its proprietary rights. The
Company considers several elements of the TMF manufacturing process to be trade
secrets. The Company attempts to protect its trade secrets and other proprietary
information through agreements with customers and suppliers, proprietary
information agreements with employees and consultants and other security
measures. However, third parties may independently develop substantially
equivalent proprietary information and techniques, or otherwise gain access to
the Company's trade secrets or disclose such technology, which could have a
materially adverse effect on the Company's business, results of operations and
financial condition. There can be no assurance that the Company's efforts to
vigorously protect its rights will be successful.
DEPENDENCE ON KEY EMPLOYEES; NEED TO ATTRACT AND RETAIN EMPLOYEES
The Company is highly dependent on its corporate officers and other
principal members of its management staff, the loss of any of whose services
might significantly delay or prevent the achievement of critical development,
manufacturing, marketing or other business objectives. In addition, the Company
relies on consultants and advisors to assist the Company in formulating its
research and development strategy. The Company has key person life insurance on
its Chief Executive Officer, Daniel S. Lankford, and its Senior Vice President,
Operations, Sandra D. Schreiber. The Company has employment contracts with Mr.
Lankford and Joseph F. Fojtasek, its Chief Financial Officer. Retaining and
attracting qualified personnel is critical to the Company's success. In order to
continue to pursue its product development and marketing plans, the Company will
be required to hire additional qualified scientific personnel to perform
research and development, manufacturing and marketing. These requirements are
also expected to demand the addition of management personnel and the development
of additional expertise by
13.
<PAGE> 15
existing management personnel. There can be no assurance that the Company will
be able to attract and retain such individuals on acceptable terms, if at all,
and the failure to do so could have a material adverse effect on the Company,
including its ability to conclude collaborations with additional corporate
partners.
ENVIRONMENTAL AND SAFETY RISKS
The Company's operations involve the storage, use and disposal of a
number of toxic and hazardous materials, including lead, lead oxide, sulfuric
acid, solvents and adhesives. As a result, the Company is required to maintain
its research and manufacturing operations in compliance with United States
federal, state, and local standards that govern the storage, use, and disposal
of various chemicals used in and waste materials produced by the manufacture of
its TMF batteries. The Company's pilot manufacturing facility and its new
manufacturing facility each include an enclosed area specifically designed for
the mixing of lead oxide paste, the pasting of the lead foil and the winding of
the cells. Employees operating in these areas are instructed in the use of
safety equipment such as gloves, protective clothing, and respirators and are
required under Occupational Safety and Health Administration ("OSHA") guidelines
to submit to blood monitoring tests on a periodic basis. The supervision and
analysis of these tests are undertaken by an outside, independent agency and the
results thereof are communicated to the Company's employees. The Company's
activities are also subject to federal, state and local environmental and safety
laws and regulations, including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") as
amended including the regulations issued and laws enforced by the Colorado Labor
and Employment Department, the U.S. Department of Transportation, the U.S.
Department of Commerce, the U.S. Environmental Protection Agency and by state
and county health and safety agencies. There can be no assurance that the
Company will be able to operate in conformity with such laws and regulations in
the future, or that changes in such regulations will not require the Company to
incur substantial capital or operating costs to achieve or maintain compliance.
Any failure by the Company to adequately control the discharge of its hazardous
materials and wastes could also subject it to future liabilities, which could be
significant.
Lead acid batteries, including the Company's TMF battery, may develop
significant internal pressures during severe overcharge conditions due to the
release of gases as a byproduct of the chemical reaction occurring in the cell.
In order to prevent potential pressure build up, the Company's batteries
incorporate a Bunsen pressure relief valve which, under normal overcharge
conditions, will allow the venting of small amounts of gases, primarily hydrogen
and oxygen. If the batteries are subjected to abusive overcharge or
overdischarge conditions, larger amounts of these gases may be vented, which,
when mixed with air, can cause explosions. In addition, under such conditions,
toxic gases and/or sulfuric acid spray may be released. Sulfuric acid can cause
burns. While the Company maintains product liability insurance in amounts which
it believes are reasonable given the associated risks, there is no assurance
that such insurance will be adequate to cover any potential liability relating
to one or more claims of product liability, or that such insurance will be
available at an acceptable cost in the future.
14.
<PAGE> 16
CONTROL BY EXISTING STOCKHOLDERS
As of September 30, 1997, the Company's officers, directors and their
affiliates as a group beneficially owned approximately 28.1% of the Company's
outstanding Common Stock and 25.2% of the Company's Common Stock assuming
conversion of all outstanding shares of Series A Preferred Stock. As a result,
these stockholders will be able to exercise significant control over all matters
requiring stockholder approval, including the election of directors and approval
of significant corporate transactions.
EFFECT OF ANTI-TAKEOVER PROVISIONS
The Company's Board of Directors has the authority to issue up to
4,663,800 shares of undesignated preferred stock and to determine the price,
rights, preferences and privileges of those shares without any further vote or
action by the stockholders. The rights of the holders of the Company's capital
stock are subject to the rights of the holders of the Series A Preferred Stock
and will be subject to, and may be adversely affected by, the rights of the
holders of any preferred stock that may be issued in the future. While the
Company has no present intention to issue any additional shares of preferred
stock, such issuance, while providing desirable flexibility in connection with
possible acquisitions and other corporate purposes, could have the effect of
making it more difficult for a third party to acquire a majority of the
outstanding voting stock of the Company. In January 1998, the Board of Directors
adopted the Company's Preferred Stock Purchase Rights Plan, commonly referred to
as a "poison pill", which may have the effect of discouraging unsolicited
takeover attempts. In addition, the Company is subject to the anti-takeover
provisions of Section 203 of the Delaware General Corporation Law, which
prohibits the Company from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder, unless the
business combination is approved in a prescribed manner. The application of
Section 203 also could have the effect of delaying or preventing a change of
control of the Company. Furthermore, the Company's classified Board of Directors
and certain other provisions of the Company's Certificate of Incorporation may
have the effect of delaying or preventing changes in control or management of
the Company, which could adversely affect the market price of the Company's
Common Stock and Series A Preferred Stock. See "Description of Capital Stock."
VOLATILITY OF STOCK PRICE; NO DIVIDENDS ON COMMON STOCK
The market price of the shares of Common Stock has been and is likely
to be highly volatile. Factors such as the fluctuation in the Company's
operating results, announcements of technological innovations or new commercial
products by the Company or its competitors, governmental regulation,
developments in patent or other proprietary rights of the Company or its
competitors, including litigation, developments in the Company's relationships
with current or future collaborative partners, and general market conditions may
have a significant effect on the market price of the Common Stock. The Company
has never paid any cash dividends and does not anticipate paying cash dividends
on the Common Stock in the foreseeable future.
15.
<PAGE> 17
POSSIBLE NONPAYMENT OF DIVIDENDS ON SERIES A PREFERRED STOCK; DEFICIENCY IN
FIXED CHARGES AND SERIES A PREFERRED STOCK DIVIDEND COVERAGE
Dividends on the Series A Preferred Stock are required to be paid
either in cash or in Common Stock. The Company presently intends to pay
dividends on the Series A Preferred Stock in Common Stock, although the Company
may pay dividends in cash or a combination of Common Stock and cash. If
dividends are paid in cash it could require the Company to pay $1,344,000
annually. If dividends are paid in Common Stock it will be dilutive to the
Common Stockholders. Dividends will be payable on the Series A Preferred Stock
only when, as and if declared by the Company's Board of Directors as permitted
under Delaware law. The Company has incurred net losses since its inception and
expects its losses to increase in the foreseeable future. While the Company
intends to pay dividends in Common Stock on the Series A Preferred Stock, it is
anticipated that the Company will continue to incur losses and thus will
continue to have a deficiency in fixed charges and preferred stock dividend
coverage. Dividends on the Series A Preferred Stock may be paid only out of
capital surplus (within the meaning of the Delaware General Corporation Law) or
net profits of the Company for the fiscal year in which the dividend is declared
and the preceding fiscal year. Unpaid dividends do not earn interest. Dividends
may be paid from a portion of the net proceeds of this offering. See
"Description of Capital Stock -- Series A Preferred Stock -- Dividends."
SHARES ELIGIBLE FOR FUTURE SALE; REGISTRATION RIGHTS
Sales of substantial amounts of the Common Stock in the public market
after this offering could adversely affect the market price of the Common Stock.
4,910,914 of the 10,583,444 shares of Common Stock outstanding (on a fully
diluted basis assuming conversion of all outstanding shares of Series A
Preferred Stock) as of September 30, 1997 are freely tradable unless held by
affiliates of the Company. The remaining shares of Common Stock are "restricted
securities" (the "Restricted Shares") under the Securities Act. As of September
30, 1997, approximately 488,597 Restricted Shares are eligible for sale without
limitation in the public market pursuant to Rule 144(k) under the Securities
Act, and approximately 5,183,933 Restricted Shares are eligible for sale,
subject to certain limitations, in the public market pursuant to Rule 144 and
Rule 701 under the Securities Act. Holders of approximately 5,091,625 shares of
the Company's Common Stock and 49,766 shares of Common Stock issuable upon the
exercise of warrants to purchase Common Stock are entitled to certain rights
with respect to registration of such shares for offer or sale to the public. See
"Description of Capital Stock -- Outstanding Registration Rights."
NO MARKET FOR SERIES A PREFERRED STOCK
The Series A Preferred Stock is a new issue of securities with no
established trading market. The Company does not intend to apply for a listing
of the Series A Preferred Stock on the Nasdaq National Market or any other
securities exchange or trading system. There is currently no established market
for the Series A Preferred Stock and there can be no assurance as to the
liquidity of markets that may develop for the Series A Preferred Stock, the
ability of holders to sell their Series A Preferred Stock, or the price of which
holders would be able to sell their Series A Preferred Stock. The Series A
Preferred has been eligible for trading in the PORTAL Market. Shares of Series A
Preferred Stock sold pursuant to this Registration Statement will not remain
eligible for trading on the PORTAL Market. Shares of Series A Preferred Stock
which have not been sold pursuant to this Registration Statement will remain
eligible for trading on the PORTAL Market. BT Alex. Brown Incorporated ("Alex.
Brown"), the initial purchaser of the Series A Preferred Stock in the Rule 144A
private placement, has advised the Company that it
16.
<PAGE> 18
intends to make a market in the Series A Preferred Stock. However, Alex. Brown
is not obligated to do so, and any market making with respect to the Series A
Preferred Stock may be discontinued at any time.
In recognition of the fact that the Selling Stockholders may wish to be
legally permitted to sell the Shares when each deems appropriate, the Company
has filed with the Commission a Registration Statement on Form S-3, of which
this Prospectus forms a part, with respect to, among other things, the resale of
the Shares from time to time at prevailing prices in the over-the-counter market
or in privately-negotiated transactions and has agreed to prepare and file such
amendments and supplements to the Registration Statement as may be necessary to
keep the Registration Statement effective until all Shares offered hereby have
been sold pursuant thereto or until such Shares are no longer, by reason of Rule
144 under the Securities Act or any other rule of similar effect, required to be
registered for the sale thereof by the Selling Stockholders.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------
1993 1994 1995 1996 1997
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges(1)......... * * * * *
</TABLE>
- --------------
(1) The Company had no earnings for any of the periods presented. Therefore, the
ratio of earnings to combined fixed charges is not meaningful for the periods
presented. The ratio of earnings to fixed charges is computed by dividing (a)
earnings before taxes plus combined fixed charges by (b) combined fixed
charges. Combined fixed charges consist of the total of: (w) interest; (x)
amortization of debt expense and discount or premium relating to any
indebtedness; (y) the estimated portion of rental expense deemed by the
Company to be a reasonable approximation of the interest factor of rental
payments under operating leases; and (z) preferred stock dividend requirements.
The preferred stock dividend requirements are calculated by dividing the
preferred stock dividend requirements by 100%, less the provision for income
tax expense applicable to income from continuing operations to the amount of
pretax income from continuing operations.
USE OF PROCEEDS
The Company will not receive any proceeds from the sales, if any, of
the Shares by the Selling Stockholders to the public. The costs and expenses
incurred in connection with the registration under the Securities Act of the
offering described herein are estimated to be $60,000 and will be paid by the
Company. Each Selling Stockholder will pay all brokerage fees and commissions,
if any, incurred in connection with the sale of Shares by such party.
SELLING STOCKHOLDERS
The following table sets forth the name of the Selling Stockholders,
the number of shares of Series A Preferred Stock and Common Stock owned
beneficially by such Selling Stockholders as of December 31, 1997 and the number
of which may be offered pursuant to this Prospectus. This information is based
upon information provided by the Selling Stockholders. Because the Selling
Stockholders may offer all, some or none of their Common Stock, no definitive
estimate as to the number of shares thereof that will be held by the Selling
Stockholders after such offering can be provided.
17.
<PAGE> 19
<TABLE>
<CAPTION>
Number of Shares Number of
Shares of Series A of Series A Shares of Common
Preferred Stock Preferred Stock Shares of Common Stock Being
Name Beneficially Being Stock Beneficially Offered
of Selling Stockholder Owned Offered Hereby(1) Owned(2) Hereby(1)(2)(3)
---------------------- ----------------------- ----------------- ----------------------- ----------------
Number Percent Number Percent
------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
The Alfred P. Sloan
Foundation 30,000 8.9% 30,000 100,000 --% --
Multi-Market Special
Investment Trust Fund of
Morgan Guaranty Trust Co.
of New York 30,000 8.9% 30,000 100,000 --% --
Commingled Pension Trust
Fund (Multi-Market Special
Investment Fund II) of
Morgan Guaranty Trust Co.
of New York 140,000 41.6% 140,000 466,666 --% --
Heartland Value Plus Fund 80,000 23.8% 80,000 534,166(4) --% 266,666
BT Alex. Brown Incorporated 45,000 13.4% 45,000 149,999 1.6% 149,999
Brown Brothers Harriman & Co. 11,200 3.3% 11,200 37,333 * 37,333
</TABLE>
- -------------------------
*Represents less than 1%
(1) While the Selling Stockholders have not expressed a specific intention
as to the number of shares of Series A Preferred Stock or Common Stock
to be sold, the table shows the beneficial ownership that would result
if all Shares were sold.
(2) Comprises the shares of Common Stock into which the Series A Preferred
Stock held by such Selling Stockholders are convertible at the initial
conversion rate. Also includes the shares of Common Stock otherwise
owned by such Selling Stockholders, if any. Does not include the shares
of Common Stock issuable as dividends on the Series A Preferred Stock,
although the resale of such shares is being registered hereunder. The
conversion rate and the number of shares of Common Stock issuable upon
conversion of the Series A Preferred Stock are subject to adjustment
under certain circumstances. See "Description of Capital Stock."
Accordingly, the number of shares of Common Stock issuable upon
conversion of the Series A Preferred Stock may increase or decrease
from time to time.
(3) Assumes conversion into Common Stock of the full amount of Series A
Preferred Stock held by the Selling Stockholders at the initial
conversion rate and the offering of such shares by such Selling
Stockholders pursuant to this Prospectus. The conversion rate and the
number of shares of Common Stock issuable upon conversion of the Series
A Preferred Stock is subject to adjustment under certain circumstances.
See "Description of Capital Stock". Accordingly, the number of shares
of Common Stock issuable upon conversion of the Series A Preferred
Stock may increase or decrease from time to time. Fractional shares
will not be issued upon conversion of the Series A Preferred Stock;
rather, cash will be paid in lieu of fractional shares, if any.
(4) Includes 267,500 shares of Common Stock owned beneficially by
Heartland Small Cap Contrarian Fund, another series of Heartland Group,
Inc. that is managed by the same investment adviser as Heartland Value
Plus Fund.
Because the Selling Stockholders may, pursuant to this Prospectus,
offer all or some portion of the Series A Preferred Stock and Common Stock they
presently hold or, with respect to Common Stock, have the right to acquire upon
conversion of such Series A Preferred Stock or as a dividend on such Series A
Preferred Stock, no estimate can be given as to the amount of the Series A
Preferred Stock and Common Stock that will be held by the Selling Stockholders
upon termination of any such sales. In addition, the Selling Stockholders
identified above may have sold, transferred or otherwise disposed of all or a
portion of their Series A Preferred Stock and Common Stock since the date on
which they provided the information regarding their Series A Preferred Stock and
Common Stock, in transactions exempt from the registration requirements of the
Securities Act. See "Plan of Distribution".
PLAN OF DISTRIBUTION
The Company has been advised that the Selling Stockholders or pledgees,
donees, transferees or other successors in interest of the Selling Stockholders
may sell Shares from time to time in one or more transactions (which may involve
one or more blocked transactions) on the Nasdaq National Market, in privately
negotiated transactions or a combinations of such methods
18.
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of sale, at fixed prices or at negotiated prices. The Selling Stockholders may
effect such transactions by selling the Shares to or through broker-dealers, and
such broker-dealers may receive compensation in the form of discounts,
concession or commissions from the Selling Stockholders or the purchasers of the
Shares for whom such broker-dealers may act as agent or to whom they sell as
principal, or both (which compensation to a particular broker-dealer might be in
excess of customary commission).
Broker-dealers may agree with the Selling Stockholder to sell a
specified number of Shares at a stipulated price per Share and, to the extent
such a broker-dealer is unable to do so acting as agent for the Selling
Stockholders, to purchase as principals any unsold Shares at the price required
to fulfill the respective broker-dealer's commitment to the Selling Stockholder.
Broker-dealers who acquire Shares as principals may thereafter resell such
Shares from time to time in transactions (which may involve cross and block
transactions and which may involve sales to and through other broker-dealers,
including transactions of the nature described above) in the over-the-counter
market, in negotiated transactions or otherwise, at market prices prevailing at
the time of sale or at negotiated prices, and in connection with such resales
may pay to or receive from the purchasers of such Shares commissions.
At any time a particular offer of Shares is made, to the extent
required, a supplemental Prospectus will be distributed which will set forth the
number of shares offered and the terms of the offering including the names or
names of any underwriters, dealers or agents, the purchase price paid by any
underwriter for the Shares purchased from the Selling Stockholders, any
discounts, commission and other items constituting compensation from the Selling
Stockholders and any discounts, concessions or commissions allowed or reallowed
or paid to dealers.
The Selling Stockholders and any broker-dealers who act in connection
with the sale of Shares hereunder may be deemed to be "underwriters" as that
term is defined in the Securities Act, and any commissions received by them and
profit on any resale of the Shares as principal might be deemed to be
underwriting discounts and commissions under the Securities Act.
Any or all of the sales or other transactions involving the Shares
described above, whether effected by the Selling Stockholders, any broker-dealer
or others, may be made pursuant to this Prospectus. In addition, any Shares that
qualify for sale pursuant to Rule 144 under the Act may be sold under Rule 144
rather than pursuant to this Prospectus.
In order to comply with the securities laws of certain states, if
applicable, the Shares may be sold in such jurisdictions only through registered
or licensed brokers or dealers. In addition, in certain states the Shares may
not be sold unless they have been registered or qualified for sale or an
exemption from registration or qualification requirements is available and is
complied with.
The Company entered into a Registration Rights Agreement with
Alex. Brown for the benefit of holders of the Series A Preferred Stock to
register the Shares under applicable federal and state securities laws. The
Company will use its reasonable best efforts to cause the Registration Statement
to which this Prospectus related to become effective within 60 days of the
Closing Date for the resale of the Shares and to remain effective until the
second anniversary of the Closing Date. The Company will be permitted to suspend
the use of the Prospectus which is
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a part of such Registration Statement during certain periods of time and under
certain circumstances relating to pending corporate developments, public filings
with the Commission and similar events. The Company will pay all expenses of
such Registration Statement, provide to each registered holder requesting to
sell the Shares copies of such Prospectus, notify each registered holder when
such Registration Statement has become effective and take certain other actions
as are required to permit, subject to the foregoing, unrestricted resales of
such securities. A holder who sells such securities pursuant to such
Registration Statement generally will be required to be named as a selling
stockholder in the related Prospectus and to deliver a Prospectus to purchasers
and will be bound by the provisions of the Registration Rights Agreement which
are applicable to such holder (including certain indemnification provisions). If
a Registration Statement covering the Shares and Common Stock is not effective,
such Shares and Common Stock may not be sold or otherwise transferred except in
accordance with the provisions set forth under an exemption from Registration
under federal and state securities laws. The Series A Preferred Stock will not
be listed on any securities exchange or quoted in any over-the-counter market.
It is not expected that any public trading market will develop for the Series A
Preferred Stock. The Registration Rights Agreement provides for
cross-indemnification of the Selling Stockholders and the Company to the extent
permitted by law, for losses, claims, damages, liabilities and expenses arising
under certain circumstances, out of any registration of the Shares.
All costs associated with this offering will be paid by Bolder.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital stock consists of 25,000,000 shares of
Common Stock, $.001 par value per share, and 5,000,000 shares of Preferred
Stock, $.001 par value per share, of which 336,200 are designated Series A
Preferred Stock and 250,000 are designated Series B Junior Participating
Preferred Stock. As of September 30, 1997, there were approximately 132 record
holders of the Company's Common Stock.
COMMON STOCK
The holders of Common Stock are entitled to one vote for each share
held of record on all matters submitted to a vote of the stockholders. The
holders of Common Stock are not entitled to cumulative voting rights with
respect to the election of directors, and as a consequence, minority
stockholders will not be able to elect directors on the basis of their votes
alone. Subject to preferences that may be applicable to any then outstanding
shares of preferred stock, holders of Common Stock are entitled to receive
ratably such dividends as may be declared by the Board of Directors out of funds
legally available therefor. In the event of a liquidation, dissolution or
winding up of the Company, holders of the Common Stock are entitled to share
ratably in all assets remaining after payment of liabilities and the liquidation
preference of any then outstanding preferred stock. Holders of Common Stock have
no preemptive rights and no right to convert their Common Stock into any other
securities. There are no redemption or sinking fund provisions applicable to the
Common Stock. All outstanding shares of Common Stock are, and all shares of
Common Stock to be outstanding upon completion of this offering will be, fully
paid and nonassessable.
SHAREHOLDER RIGHTS PLAN
Each share of Common Stock has associated with it one right (a
"Right") to purchase one one-hundredth of a share of Series B Junior
Participating Preferred Stock (or in certain cases other securities) of the
Company. The terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") dated as of January 23, 1998, between the Company and
American Stock Transfer & Trust Company, as Rights Agent. Prior to the
occurrence of certain specified future events, the rights will not be
represented by separate certificates and will be transferable with and only with
the associated Common Stock.
Pursuant to the Rights Agreement, in the event that, among other
things, a third party acquires beneficial ownership of 15% or more of the
outstanding shares of the Common Stock, each holder of Rights will be entitled
to purchase securities of the Company having a market value equal to twice the
purchase price thereof. In addition, Rights held by an Acquiring Person (as
defined in the Rights Agreement) will become null and void, nontransferable and
nonexercisable.
Subject to certain limitations, the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right. The Rights will expire on
January 23, 2008, unless earlier redeemed by the Company.
The Company's Shareholder Rights Plan may have the effect of
discouraging unsolicited takeover attempts.
The foregoing summary of certain terms of the Rights does not purport
to be complete and is subject to, and is qualified in its entirety by reference
to, the Rights Agreement, a copy of which is on file with the Commission.
20.
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PREFERRED STOCK
The Board of Directors of the Company is empowered, without approval of
the stockholders, to cause shares of preferred stock to be issued in one or more
series and to establish the number of shares to be included in each such series
and the rights, powers, preferences and limitations of each series. Because the
Board of Directors has the power to establish the preferences and rights of each
series, it may afford the holders of any series of preferred stock preferences,
powers and rights, voting or otherwise, senior to the rights of holders of
Common Stock or other series of preferred stock. The issuance of the preferred
stock could have the effect of delaying or preventing a change in control of the
Company. The Board of Directors has no present plans to issue any of the
preferred stock, other than the Series A Preferred Stock which was issued by the
Company in October 1997. In connection with the Company's Shareholder Rights
Plan, the Company would be obligated to issue shares of Series B Junior
Participating Preferred Stock if such rights become exercisable.
SERIES A PREFERRED STOCK
The Series A Preferred Stock constitutes a single series of the
preferred stock of the Company consisting of 336,200 shares. All outstanding
shares of Series A Preferred Stock are duly authorized, validly issued, fully
paid and nonassessable, and the holders thereof will not have any preemptive
rights in connection therewith. The Series A Preferred Stock is not subject to
any sinking fund or other obligation of the Company to redeem or retire such
shares except as described below. Any Series A Preferred Stock converted,
redeemed or otherwise acquired by the Company will, upon cancellation of such
shares, have the status of authorized but unissued preferred stock subject to
issuance by the Board of Directors as shares of preferred stock of any one or
more other series but not as shares of Series A Preferred Stock.
Dividends
Holders of the Series A Preferred Stock are each entitled to receive
(and the Company is required to pay), when, as and if declared by the Board of
Directors, out of the funds of the Company legally available therefor, a
semi-annual dividend payable in Common Stock (based upon the Common Stock's then
fair market value) or cash or a combination of Common Stock and cash, at the
Company's option, at an annual rate equal to (i) $4.00 per share to the extent
the dividend is paid in cash and (ii) $4.50 per share to the extent the dividend
is paid in Common Stock. The Company has agreed to issue dividends in Common
Stock only if a registration statement covering the resale of that stock is
effective. Accrued dividends on the Series A Preferred Stock are payable
semi-annually on December 31 and June 30 of each year and, in the case of any
accrued but unpaid dividends, at such additional times and for such interim
periods, if any, as determined by the Board of Directors. The initial dividend
payment to holders of Series A Preferred Stock will be on a date not later than
the earlier of (i) twenty days after the date on which this Registration
Statement is declared effective, or (ii) March 31, 1998. Dividends on the Series
A Preferred Stock are cumulative from the Closing Date and will be payable to
holders of record as they appear on the stock books of the Company on such
record dates, which shall be not more than 60 days nor less than 10 days
preceding the payment dates, as shall be fixed by the Board of Directors,
provided that holders of shares of Series A Preferred Stock called for
redemption on a redemption date falling between a dividend payment record date
and the dividend payment date shall, in lieu of receiving such dividend on the
dividend payment date fixed therefor, receive an amount equal to such dividend
payment (consisting of all accumulated and unpaid dividends through and
including the redemption date)
21.
<PAGE> 23
on the date fixed for redemption (unless such holders convert such shares in
accordance with the Series A Certificate of Designation (the "Series A
Designation")). Dividends payable on the Series A Preferred Stock for any period
greater or less than a full dividend period will be computed on the basis of a
360-day year consisting of twelve 30-day months. Accrued but unpaid dividends
will not bear interest. If dividends are paid in cash it could require the
Company to pay $1,344,000 annually. If dividends are paid in Common Stock it
will be dilutive to the Common Stockholders.
If dividends are not paid in full on the Series A Preferred Stock and
any other preferred stock ranking on a parity as to dividends with the Series A
Preferred Stock, all dividends declared upon shares of Series A Preferred Stock
and such other preferred stock will be declared pro rata so that in all cases
the amount of dividends declared per share on the Series A Preferred Stock and
such other preferred stock bear to each other the same ratio that accrued and
unpaid dividends per share on the shares of Series A Preferred Stock and such
other preferred stock bear to each other. Except as set forth above, unless full
cumulative dividends on the Series A Preferred Stock have been paid or funds set
aside, dividends (other than dividends paid solely in Common Stock, other stock
ranking junior as to dividends to the Series A Preferred Stock and rights to
acquire the foregoing) may not be paid or declared and set aside for payment and
other distributions may not be made upon the Common Stock or on any other stock
of the Company ranking junior to or on a parity with the Series A Preferred
Stock as to dividends nor may any Common Stock or any other stock of the Company
ranking junior to or on a parity with the Series A Preferred Stock as to
dividends be redeemed, purchased or otherwise acquired for any consideration by
the Company.
Conversion Rights
Each share of Series A Preferred Stock is convertible at the option of
the holder thereof at any time, unless previously redeemed, into that number of
shares of Common Stock equal to $50.00 divided by a conversion price per share
equal to $15.00, subject to adjustment as described below (the "Conversion
Price"). The right of conversion will terminate at the close of business on the
third business day preceding a date fixed for redemption and will be lost if not
exercised prior to that time.
In case the Company shall be a party to any transaction (including,
without limitation, a merger or consolidation; sale, lease or transfer of all or
substantially all of its assets; reclassification of the Common Stock; or
reorganization of the Company) as a result of which shares of Common Stock shall
be converted into the right to receive stock, securities or other property
(including cash or any combination thereof), each share of Series A Preferred
Stock, if not converted as a result of the transaction, shall thereafter be
convertible into the kind and amount of shares of stock and other securities and
property (including cash) receivable upon the consummation of such transaction
by a holder of that number of shares of Common Stock, or fraction thereof, into
which one share of Series A Preferred Stock was convertible immediately prior to
such transaction at the Conversion Price for each share of Series A Preferred
Stock in effect at such time. Under certain circumstances such transactions will
require the consent of the holders of Series A Preferred Stock.
22.
<PAGE> 24
The Conversion Price of the Series A Preferred Stock is subject to
adjustment upon certain events, including (i) the issuance of Common Stock as a
dividend with respect to the outstanding Common Stock, subdivisions, splits or
combinations of Common Stock, or the issuance of any shares of capital stock by
reclassification of Common Stock and (ii) the issuance to all holders of Common
Stock of rights, options or warrants to subscribe for or purchase the Common
Stock or securities convertible into or exchangeable for Common Stock, in each
case at less than the then current market price per share of Common Stock. In
the event of the distribution to holders of Common Stock of securities of the
Company (other than Common Stock) or of assets (excluding certain cash dividends
as specified in the Series A Designation) other than those mentioned in clause
(ii) above, the Company will set aside in escrow such amount of such
distribution as the holders of Series A Preferred Stock would have been entitled
to receive if they had converted such Series A Preferred Stock into Common Stock
prior to the record date for such distribution.
No adjustment of the Conversion Price of the Series A Preferred Stock
will be required to be made in any case until cumulative adjustments amount to a
change in the Conversion Price of $.05 or more, but any such adjustment that
would otherwise be required to be made shall be carried forward and taken into
account in any subsequent adjustment. The Company reserves the right, to the
extent permitted by law, to make such reductions in the Conversion Price in
addition to those required in the foregoing provision as it, in its sole
discretion, shall determine to be advisable in order that certain stock-related
distributions made by the Company to its stockholders shall not be taxable to
such stockholders.
No fractional shares or securities representing fractional shares of
Common Stock will be issued upon conversion. Any fractional shares resulting
from conversion will be paid in cash based on the closing price of the Common
Stock on the last trading day preceding the date of conversion.
Holders of shares of Series A Preferred Stock at the close of business
on a dividend payment record date will be entitled to receive the dividend
payable on such shares on the corresponding dividend payment date
notwithstanding the conversion thereof or the Company's default on payment of
the dividend due on such dividend payment date. However, for shares of Series A
Preferred Stock surrendered for conversion during the period from the close of
business on any dividend payment record date to the opening of business on the
corresponding dividend payment date, the Company shall only be required to pay
the dividend to the record holder of such shares on the dividend payment record
date. Except as provided above, no payment or adjustment will be made on account
of accrued or unpaid dividends upon conversion of shares of Series A Preferred
Stock.
Liquidation Rights
In the event of any liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, the holders of shares of Series A
Preferred Stock are each entitled to receive out of assets of the Company
available for distribution to stockholders, whether from capital surplus or
earnings, before any distribution of assets is made to holders of Common Stock
23.
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and of any other class of stock of the Company ranking junior to the Series A
Preferred Stock, liquidating distributions equal to the greater of (i) $50.00
per share of such Series A Preferred Stock or (ii) the amount per share of such
Series A Preferred Stock that would have been payable had each such share been
converted into Common Stock immediately prior to such event of liquidation,
dissolution or winding up, plus, in either case, accrued and unpaid dividends.
If upon any liquidation, dissolution or winding up of the Company, the amounts
payable with respect to the Series A Preferred Stock and any other preferred
stock ranking as to any such distribution on a parity with the Series A
Preferred Stock are not paid in full, the holders of the Series A Preferred
Stock and of such other preferred stock will share ratably in any such
distribution of assets in proportion to the full respective preferential amounts
to which they are entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of shares of Series A
Preferred Stock will not be entitled to any further participation in any
distribution of assets by the Company. Neither a consolidation or merger of the
Company with another corporation nor a sale, transfer or lease of all or part of
the Company's assets will be considered a liquidation, dissolution or winding up
of the Company for these purposes.
Redemption Rights
Under certain circumstances, the shares of Series A Preferred Stock are
redeemable at the option of the Company, in whole or in part, at any time or
from time to time out of funds legally available therefor, at $50.00 per share,
plus in each case an amount equal to accrued and unpaid dividends, if any, to
(and including) the redemption date, whether or not earned or declared (the
"Redemption Price"). The Series A Preferred Stock may be redeemed subsequent to
October 8, 1999 (the second anniversary of the Closing Date) in the event that
the closing price of the Common Stock equals or exceeds $30.00 per share (a 100%
premium to the Conversion Price), subject to certain adjustments, for each of
the 30 consecutive trading days ending two trading days prior to the date of the
redemption notice. The Series A Preferred Stock may be redeemed subsequent to
October 8, 2000 (the third anniversary of the Closing Date) in the event that
the closing price of the Common Stock equals or exceeds $26.25 (a 75% premium to
the Conversion Price), subject to certain adjustments, for each of the 30
consecutive trading days ending two trading days prior to the date of the
redemption notice. The Redemption Price may be paid in shares of Common Stock or
cash, or in a combination of Common Stock and cash, at the Company's option. If
the Company chooses to redeem the Series A Preferred Stock with Common Stock,
the number of shares of Common Stock issuable to the holders of the Series A
Preferred Stock being redeemed will be fixed on the date the notice of
redemption is sent to such holders and will be equal to the greater of (i) the
number of shares of Common Stock issuable to such holders at the then existing
Conversion Price or (ii) the number of shares of Common Stock issuable to such
holders at the Redemption Price based upon the Common Stock's then fair market
value as determined by taking the average closing price of the Common Stock for
the 10 consecutive trading days ending two trading days prior to the date of the
redemption notice.
If the Company chooses to pay the Redemption Price in Common Stock, the
holders of the Series A Preferred Stock being redeemed must be offered the
option to sell such Common Stock in a firm commitment underwriting. If the net
proceeds per share of Common Stock to the
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<PAGE> 26
holders who so elect to sell in a firm commitment underwriting would be less
than $30.00 (a 100% premium to the Conversion Price) or $26.25 (a 75% premium to
the conversion price), as applicable, and the Company chooses not to supplement
the net proceeds in an amount necessary to attain the $30.00 or $26.25 per share
threshold, as applicable, then such holders may elect to retain their shares of
Series A Preferred Stock.
The Series A Preferred Stock, if not earlier redeemed, will be redeemed
on October 8, 2002 (the fifth anniversary of the Closing Date) at the Redemption
Price. If the Company chooses to pay the Redemption Price in Common Stock, the
holders must be offered the option to sell such Common Stock in a firm
commitment underwriting. If the net proceeds per share of redeemed Series A
Preferred Stock to the holders who so elect to sell in a firm commitment
underwriting would be less than the Redemption Price and the Company chooses not
to supplement the net proceeds in an amount necessary to attain the Redemption
Price threshold, then such holders may elect to retain their Series A Preferred
Stock. The Company will then have a continuing obligation to use its reasonable
best efforts to effect a firm commitment underwriting which will result in net
proceeds to such holders equal to the Redemption Price; however, the Company
will in no event be required to pay cash to redeem such Series A Preferred
Stock. If the Series A Preferred Stock is not redeemed prior to October 8, 2003
(the sixth anniversary of the Closing Date), the Board of Directors of the
Company shall be increased and the holders of Series A Preferred Stock shall
each be entitled, voting as a separate class, to elect additional directors to
the Board of Directors of the Company so that the number of additional directors
granted to the Series A Preferred Stock shall constitute not less than 20%
(rounded to the nearest whole number) of the total number of directors after
giving effect to such increase. Such right shall exist until the Series A
Preferred Stock is redeemed.
If fewer than all of the shares of Series A Preferred Stock are to be
redeemed, the shares to be redeemed shall be selected by lot or pro rata or in
some other equitable manner determined by the Board of Directors of the Company
in its sole discretion. On and after the date fixed for redemption, provided
that the Redemption Price for the shares to be redeemed has been duly paid or
provided for, dividends shall cease to accrue on the Series A Preferred Stock
called for redemption, such shares shall no longer be deemed to be outstanding
and all rights of the holders of such shares as stockholders of the Company
shall cease, except the right to receive the cash or Common Stock payable upon
such redemption, without interest thereon, upon surrender of the certificates
evidencing such shares.
In the event the Company shall redeem shares of Series A Preferred
Stock, a notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 90 days prior to the redemption
date, to each holder of record of the shares of Series A Preferred Stock to be
redeemed, at such holder's address as the same appears on the stock records of
the Company. Each such notice shall state, among other things: (i) the
redemption date; (ii) whether the Redemption Price will be paid in shares of
Common Stock or cash, or in a combination of Common Stock and cash; (iii) that
dividends on shares of Series A Preferred Stock to be redeemed shall cease to
accrue following such redemption date; (iv) that dividends accrued to and
including the date fixed for redemption will be paid as specified in said notice
and (v) if the Redemption Price will be paid in shares of Common Stock, that an
investment banking
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firm mutually acceptable to the Company and the holders of a majority of the
shares of the Series A Preferred Stock being redeemed has agreed to proceed with
a firm commitment underwriting (x) for holders of Series A Preferred Stock to be
redeemed by such notice, (y) with respect to the shares of Common Stock
obtainable by such holders upon redemption of the Series A Preferred Stock being
redeemed and (z) which will yield net proceeds (after deducting underwriting
commissions and fees and other expenses of the offering) in the amounts
described above. Notice having been mailed as aforesaid, from and after the
redemption date, unless the Company shall be in default in providing cash or
Common Stock for the payment of the Redemption Price (including any accrued and
unpaid dividends to (and including) the date fixed for redemption), (1)
dividends on the shares of the Series A Preferred Stock so called for redemption
shall cease to accrue, (2) said shares shall be deemed no longer outstanding and
(3) all rights of the holders thereof as stockholders of the Company (except the
right to receive from the Company any cash or Common Stock payable upon
redemption without interest thereon) shall cease except for the rights
applicable to any Common Stock paid pursuant to the redemption.
An election by any holders to participate in an underwritten offering
shall suspend any redemption with respect to Series A Preferred Stock held by
such holders. If such holders who notified the Company that they wished to
participate in the public offering refuse to close under the underwriting
agreement despite the satisfaction of all conditions therein to their obligation
to close thereunder, or if no holder notifies the Company of any election to
participate in an underwritten offering, then the Company shall have the right
to redeem (in whole or in part) the Series A Preferred Stock scheduled for
redemption; any such required redemption shall be made no later than the date
(which shall be a business day) to be specified (not more than 20 days or less
than five days after such failure to close) to such holders by the Company. If
any underwriting does not close due to one or more of the conditions to the
sellers' obligations to close under the underwriting agreement not being
satisfied, then the notice of the Company requiring redemption of the Series A
Preferred Stock shall be rescinded.
Redemption at Option of Holder upon a Fundamental Change
If a Fundamental Change (as defined below) occurs, each holder of
Series A Preferred Stock shall have the right, at the holder's option, to
require the Company to redeem all of such holder's Series A Preferred Stock, or
any portion thereof that has an aggregate liquidation value that is a multiple
of $50.00, on the date (the "Repurchase Date") selected by the Company that is
not less than 10 nor more than 20 days after the Final Surrender Date (as
defined below), at a price per share equal to the Redemption Price. The Company
may, at its option, pay all or any portion of the Redemption Price upon a
Fundamental Change in shares of Common Stock of the Company or any successor
corporation. For purposes of calculating the number of shares of Common Stock
issuable upon such redemption, the value of any such stock will be equal to the
average of the closing prices of such Common Stock for the 10 trading days
ending two trading days prior to the Repurchase Date. Payment may not be made in
shares of Common Stock unless such shares have been, or will be no later than
the Final Surrender Date (as defined below), registered under the Securities Act
or are freely tradable pursuant to an exemption
26.
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thereunder and are listed on a United States national securities exchange or
quoted on The Nasdaq National Market at the time of payment.
Within 30 days after the occurrence of a Fundamental Change, the
Company is obligated to mail to all holders of record of the Series A Preferred
Stock a notice (the "Company Notice") describing, among other things, the
occurrences of such Fundamental Change and of the redemption right arising as a
result thereof. The Company must cause a copy of such notice to be published in
a newspaper of general circulation in the Borough of Manhattan, the City of New
York. At least two business days prior to the Repurchase Date, the Company must
publish a similar notice stating whether and to what extent the Redemption Price
will be paid in cash or shares of Common Stock. To exercise the redemption
right, a holder of Series A Preferred Stock must surrender, on or before the
date which is, subject to any contrary requirements of applicable law, 60 days
after the date of mailing of the Company Notice (the "Final Surrender Date"),
the certificates representing the Series A Preferred Stock with respect to which
the rights is being exercised, duly endorsed for transfer to the Company,
together with a written notice of election.
The term "Fundamental Change" shall mean any of the following:
(i) a "person" or "group" (within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), together with any affiliate thereof, becoming the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of
Voting Shares (as defined below) of the Company entitled to exercise
more than 60% of the total voting power of all outstanding Voting
Shares of the Company (including any Voting Shares that are not then
outstanding of which such person or group is deemed the beneficial
owner);
(ii) any consolidation of the Company with, or merger of the
Company into, any other person, any merger of another person into the
Company, or any sale, lease or transfer of all or substantially all of
the assets of the Company to another person (other than a merger (A)
which results in the holders of Common Stock of the Company immediately
prior to giving effect to such transaction owning shares of capital
stock of the surviving corporation in such transaction representing in
excess of 40% of the total voting power of all shares of capital stock
of such surviving corporation entitled to vote generally in the
election of directors and (B) in which the shares of the surviving
corporation held by such holders are, or immediately upon issuance will
be, listed on a national securities exchange or quoted on The Nasdaq
National Market and are not subject to any right of repurchase by the
issuer thereof or any third-party and are not otherwise subject to any
encumbrance as a result of such transaction, provided, that the
surviving corporation amends its charter or certificate of
incorporation to include the Series A Preferred Stock and its terms as
set forth in the Series A Designation); or
(iii) the substantial reduction or elimination of a public
market for the Common Stock of the Company as the result of the
Company's Common Stock ceasing to be approved for quotation on The
Nasdaq National Market or listed on a national securities exchange;
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provided, however, that a Fundamental Change shall not occur with respect to the
Series A Preferred Stock if either (i) as of the fifteenth trading day after the
public announcement by the Company of such transaction and, if later, three days
prior to the consummation of such transaction, the last sale price of the Common
Stock is equal to at least 110% of the applicable Conversion Price in effect on
such trading days or (ii) at least 90% of the consideration (excluding cash
payments for fractional shares) in such transaction or transactions to the
holders of Common Stock consists of shares of common stock that are, or
immediately upon issuance will be, listed on a national securities exchange or
quoted on The Nasdaq National Market and, as a result of such transaction or
transactions, the Series A Preferred Stock becomes convertible into such common
stock.
For purposes of the foregoing, "Voting Shares" is defined to mean all
outstanding shares of any class or classes (however designated) of capital stock
entitled to vote generally in the election of members of the Board of Directors.
Rule 13e-4 under the Exchange Act requires the dissemination of certain
information to security holders in the event of an issuer tender offer and may
apply in the event that the redemption option becomes available to holders of
the Series A Preferred Stock. The Company will comply with this rule to the
extent applicable at the time.
The foregoing provisions would not necessarily afford holders of the
Series A Preferred Stock protection upon the occurrence of events that would
constitute a change in control or in the event of highly leveraged or other
transactions involving the Company that may adversely affect such holders or
against a decline in the creditworthiness of the Company.
Voting Rights
The holders of Series A Preferred Stock have voting rights on all
matters subject to a vote of holders of Common Stock on an as-converted basis.
The holders of Series A Preferred Stock that would be required to make a filing
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act")
in connection with the acquisition of Series A Preferred Stock, however, will
not be entitled to vote in the election of directors of the Company until the
waiting period under the HSR Act has expired or been terminated. If the Series A
Preferred Stock has not been redeemed prior to October 8, 2003 (the sixth
anniversary of the Closing Date), the Board of Directors of the Company shall be
increased and the holders of Series A Preferred Stock that have not been so
redeemed shall be entitled, voting as a separate class, to elect additional
directors to the Board of Directors of the Company so that the number of
additional directors to be elected by the Series A Preferred Stock shall
constitute not less than 20% (rounded to the nearest whole number) of the total
number of directors after giving effect to such increase. Such right shall exist
until the Series A Preferred Stock is redeemed.
Without the vote or consent of the holders of at least two-thirds of
the shares of Series A Preferred Stock then outstanding, voting as a separate
class, the Company may not (i) create or issue or increase the authorized number
of shares of any class or series of stock ranking senior to the Series A
Preferred Stock either as to dividends or upon liquidation or create, authorize
or issue any class or series of common stock of the Company other than the
Common Stock,
28.
<PAGE> 30
(ii) amend, alter or repeal any of the provisions of the Company's certificate
of incorporation so as to affect adversely the preferences, special rights or
powers of the Series A Preferred Stock, or the holders thereof, (iii) authorize
any reclassification of the Series A Preferred Stock, or increase the number of
shares of the Series A Preferred Stock, (iv) create, authorize or issue any
securities convertible into capital stock prohibited by clause (i), (v) amend
the Series A Designation or (vi) issue any shares of Series A Preferred Stock at
any time after October 8, 1997. The holders of Series A Preferred Stock may,
until such time as the Series A Preferred Stock is registered pursuant to any
effective registration statement under Section 12 of the Securities Exchange Act
of 1934, as amended, act by written consent so long as such action by written
consent is solely being taken by, and is only applicable to, the holders of
Series A Preferred Stock.
OUTSTANDING REGISTRATION RIGHTS
Pursuant to an existing agreement between the Company and certain of
its stockholders, the holders (or their permitted transferees) of approximately
5,091,625 shares of Common Stock and 49,766 shares of Common Stock issuable upon
the exercise of warrants to purchase Common Stock (the "Holders") are entitled
to certain rights with respect to the registration of such shares under the
Securities Act. If the Company proposes to register any of its securities under
the Securities Act, either for its own account or for the account of other
security holders, the Holders are entitled to notice of the registration and are
entitled to include, at the Company's expense, such shares therein, provided,
among other conditions, that the underwriters have the right to limit the number
of such shares included in the registration. In addition, certain of the Holders
may require the Company, on not more than two occasions, to file a registration
statement under the Securities Act, at the Company's expense, with respect to
their shares of Common Stock, and the Company is required to use its best
efforts to effect the registration, subject to certain conditions and
limitations. However, the Holders may not require the Company to file any such
registration statement within 90 days of the effective date of any prior
registration statement covering the Company's Common Stock, and the Company may
defer the filing of such registration statement for up to 120 days. Further,
certain of the Holders may require the Company, at its expense, to register
their shares of Common Stock on a Form S-3 when such form becomes available to
the Company, subject to certain conditions and limitations.
DELAWARE ANTI-TAKEOVER LAW AND CERTAIN CHARTER PROVISIONS
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law (the "Delaware Law"), an anti-takeover law. In general,
the statute prohibits a publicly held Delaware corporation from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
For purposes of Section 203, a "business combination" includes a merger, asset
sale or other transaction resulting in a financial benefit to the interested
stockholder, and an "interested stockholder" is a person who, together with
affiliates and associates, owns (or within three years prior, did own) 15% or
more of the corporation's voting stock.
The Company's Certificate of Incorporation (the "Certificate of
Incorporation") also requires that any action required or permitted to be taken
by stockholders of the Company must be effected at a duly called annual or
special meeting of the stockholders and may not be effected by a consent in
writing; provided, however, that the holders of Series A Preferred Stock may,
until such time as the Series A Preferred Stock is registered pursuant to any
effective registration statement under Section 12 of the Securities Exchange Act
of 1934, as amended, act by written consent so long as such action by written
consent is solely being taken by, and is only applicable to, the holders of
Series A Preferred Stock. Special meetings of the stockholders of the Company
may be called
29.
<PAGE> 31
only by the Board of Directors, the Chairman of the Board or the Chief Executive
Officer. The Certificate of Incorporation also provides that the authorized
number of Directors may be changed only by resolution of the Board of Directors,
and that Directors can only be removed for cause by a majority vote of the
stockholders. In addition, the Certificate of Incorporation provides for the
classification of the Board of Directors into three classes, only one of which
shall be elected at any given annual meeting. These provisions may have the
effect of delaying, deterring or preventing a change in control of the Company,
depressing the market price of Common Stock or discouraging hostile takeover
bids in which stockholders of the Company could receive a premium for their
shares of Common Stock.
LIMITATION ON DIRECTORS' LIABILITY
The Certificate of Incorporation limits the liability of the Company's
directors to the Company or its stockholders (in their capacity as directors but
not in their capacity as officers) to the fullest extent permitted by Delaware
law. Specifically, directors of the Company will not be personally liable for
monetary damages for breach of a director's fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of the law, (iii)
for unlawful payments of dividends or unlawful stock repurchases or redemptions
as provided in Section 174 of the Delaware General Corporation Law or (iv) for
any transaction from which the director derived an improper personal benefit.
The inclusion of this provision in the Certificate of Incorporation may
have the effect of reducing the likelihood of derivative litigation against
directors and may discourage or deter stockholders or management from bringing a
lawsuit against directors for breach of their duty of care, even though such an
action, if successful, might otherwise have benefited the Company and its
stockholders.
TRANSFER AGENT AND REGISTRAR
American Stock Transfer & Trust Company acts as transfer agent and
registrar for the Common Stock and for the Series A Preferred Stock.
LEGAL MATTERS
Certain legal matters with respect to the validity of the securities
offered hereby are being passed upon for the Company by Cooley Godward LLP,
Boulder, Colorado.
EXPERTS
The financial statements and schedules of the Company incorporated by
reference in this Prospectus and elsewhere in the Registration Statement have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said reports.
30.
<PAGE> 32
================================================================================
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER IS NOT QUALIFIED TO
DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH SOLICITATION.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Available Information ................................................. 3
Documents Incorporated by Reference ................................... 3
The Company ........................................................... 5
Risk Factors .......................................................... 7
Use of Proceeds ....................................................... 17
Selling Stockholders .................................................. 17
Plan of Distribution .................................................. 18
Legal Matters ......................................................... 30
Experts ............................................................... 30
</TABLE>
================================================================================
================================================================================
[LOGO OF BOLDER
TECHNOLOGIES
CORPORATION APPEARS
HERE]
336,200 SHARES OF SERIES A
CONVERTIBLE PREFERRED STOCK,
INDETERMINATE NUMBER OF
SHARES OF COMMON STOCK
ISSUED ON CONVERSION THEREOF
AND
453,870 SHARES OF
COMMON STOCK
----------
PROSPECTUS
----------
JANUARY 28, 1998
================================================================================
<PAGE> 33
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses payable by the Registrant in
connection with the sale of the Series A Preferred Stock and Common Stock being
registered, none of which will be borne by the Selling Stockholders. All the
amounts shown are estimates except for the SEC registration fee.
<TABLE>
<S> <C>
SEC Registration fee............................. $ 6,465
Legal fees and expenses.......................... $15,000
Accounting fees and expenses..................... $15,000
Miscellaneous.................................... $23,535
-------
Total................................... $60,000
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
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
Securities Act of 1933, as amended (the "Act").
The Registrant's Bylaws provide that the Registrant will indemnify its
directors and executive officers and may indemnify its other officers, employees
and agents to the fullest extent permitted by Delaware law. The Registrant is
also empowered under its Bylaws to enter into indemnification agreements with
its directors and officers and to purchase insurance on behalf of any person it
is required or permitted to indemnify.
In addition, the Registrant's Restated Certificate of Incorporation
provides that to the fullest extent permitted by Delaware law, the Registrant's
directors will not be liable for monetary damages for breach of the directors'
fiduciary duty of care to the Registrant and its stockholders. This provision in
the Restated Certificate of Incorporation does not eliminate the duty of care,
and in appropriate circumstances equitable remedies such as an injunction or
other forms of non-monetary relief would remain available under Delaware law.
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,
for improper transactions between the director and the Registrant and for
improper distributions to stockholders and loans to directors and officers. This
provision also does not affect a director's responsibilities under any other
laws, such as the federal securities law or state or federal environmental laws.
II-1
<PAGE> 34
The Registrant has entered into indemnification agreements with each of
its directors and 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 officer of the Registrant, and the
Registrant maintains directors' and officers' liability insurance.
There is no pending litigation or proceeding involving a director or
officer of the Registrant as to which indemnification is being sought, nor is
the Registrant aware of any pending or threatened litigation that may result in
claims for indemnification by any director or officer.
At present, there is no pending litigation or proceeding involving a
Director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or Director.
The Registrant has an insurance policy covering the officers and
Directors of the Registrant with respect to certain liabilities, including
liabilities arising under the Act or otherwise.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<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+ Certificate of Designation of the Series A Preferred Stock.
4.3+ 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)).
4.4+ Specimen stock certificate representing shares of Series A
Preferred Stock.
4.5+ Specimen stock certificate representing shares of Common Stock
(incorporated by reference to Exhibit 4.2 to the Registrant's
Registration Statement on Form SB-2 (Registration No.
333-2500-D)).
4.6 Amendment to the Certificate of Designation of the Series A
Preferred Stock.
4.7 Certificate of Designation of the Series B Junior
Participating Preferred Stock (incorporated by reference to
Exhibit 99.3 of the Registrant's Report on Form 8-K filed
January 23, 1998).
4.8 Amendment to the Amended and Restated Bylaws of the
Registrant.
4.9 Rights Agreement dated as of January 1998 among the
Registrant and American Stock Transfer & Trust Company
(incorporated by reference to Exhibit 99.2 of the Registrant's
Report on Form 8-K filed January 23, 1998).
4.10 Form of Rights Certificate (incorporated by reference to
Exhibit 99.4 of the Registrant's Report on Form 8-K filed
January 23, 1998).
5.1+ Opinion of Cooley Godward LLP.
10.1+ Purchase Agreement, dated October 3, 1997, between the
Registrant and BT Alex. Brown Incorporated.
10.2+ Registration Rights Agreement, dated October 8, 1997, between
the Registrant and BT Alex. Brown Incorporated.
23.1 Consent of Arthur Andersen LLP.
23.2+ Consent of Cooley Godward LLP (included in Exhibit 5.1).
</TABLE>
- --------------
+ Previously filed.
II-2
<PAGE> 35
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)(3) of
the Act;
(b) 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 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 registration statement;
(c) 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 (1)(a) and (1)(b) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and
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
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in
the Registration Statement.
(2) For the purpose of determining any liability under the Act,
each post-effective amendment that contains a form of prospectus 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) 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.
(4) 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.
II-3
<PAGE> 36
(5) That, for purposes of determining any liability under the
Act, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Act shall be deemed to be part of this Registration Statement as of
the time it was declared effective.
(6) Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to provisions described in Item 15 or otherwise, the
Registrant has been advised that in the opinion of the 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.
(7) (a) For purposes of determining any liability under the Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Act shall be deemed to be part of this Registration Statement as of
the time it was declared effective.
(b) For the purpose of determining any liability under the
Act, each post-effective amendment that contains a form of prospectus 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 the
initial bona fide offering thereof.
II-4
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Golden, State of
Colorado, on January 28, 1998.
BOLDER TECHNOLOGIES, INC.
By: /s/ Joseph F. Fojtasek
------------------------------------
Joseph F. Fojtasek
Chief Financial Officer,
Vice President Finance and
Administration, Treasurer
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to this Registration Statement has been signed below 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, January 28, 1998
- ------------------------------- Chief Executive Officer and Director
Daniel S. Lankford (Principal Executive Officer)
/s/ Joseph F. Fojtasek* Chief Financial Officer, Vice President, January 28, 1998
- ------------------------------- Finance and Administration, Treasurer
Joseph F. Fojtasek and Secretary (Principal Financial and
Accounting Officer)
/s/ William R. Bottoms* Director January 28, 1998
- -------------------------------
William R. Bottoms
/s/ William D. Connor* Director January 28, 1998
- -------------------------------
William D. Connor
Director January , 1998
- -------------------------------
Tristan E. Juergens
/s/ Carl S. Stutts* Director January 28, 1998
- -------------------------------
Carl S. Stutts
</TABLE>
*By: /s/ Joseph F. Fojtasek
----------------------------
Joseph F. Fojtasek
Attorney-in-Fact
II-5
<PAGE> 38
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<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+ Certificate of Designation of the Series A Preferred Stock.
4.3+ 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)).
4.4+ Specimen stock certificate representing shares of Series A
Preferred Stock.
4.5+ Specimen stock certificate representing shares of Common Stock
(incorporated by reference to Exhibit 4.2 to the Registrant's
Registration Statement on Form SB-2 (Registration No.
333-2500-D)).
4.6 Amendment to the Certificate of Designation of the Series A
Preferred Stock.
4.7 Certificate of Designation of the Series B Junior
Participating Preferred Stock (incorporated by reference to
Exhibit 99.3 of the Registrant's Report on Form 8-K filed
January 23, 1998).
4.8 Amendment to the Amended and Restated Bylaws of the
Registrant.
4.9 Rights Agreement dated as of January 1998 among the
Registrant and American Stock Transfer & Trust Company
(incorporated by reference to Exhibit 99.2 of the Registrant's
Report on Form 8-K filed January 23, 1998).
4.10 Form of Rights Certificate (incorporated by reference to
Exhibit 99.4 of the Registrant's Report on Form 8-K filed
January 23, 1998).
5.1+ Opinion of Cooley Godward LLP.
10.1+ Purchase Agreement, dated October 3, 1997, between the
Registrant and BT Alex. Brown Incorporated.
10.2+ Registration Rights Agreement, dated October 8, 1997, between
the Registrant and BT Alex. Brown Incorporated.
23.1 Consent of Arthur Andersen LLP.
23.2+ Consent of Cooley Godward LLP (included in Exhibit 5.1).
</TABLE>
- --------------
+ Previously filed.
<PAGE> 1
EXHIBIT 4.6
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RIGHTS OF THE
SERIES A CONVERTIBLE PREFERRED STOCK
($.001 PAR VALUE)
(LIQUIDATION PREFERENCE $50.00 PER SHARE)
OF
BOLDER TECHNOLOGIES CORPORATION
----------------------
PURSUANT TO SECTION 151(G) OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
----------------------
THE UNDERSIGNED, being the President and Chief Executive Officer of
Bolder Technologies Corporation, a Delaware corporation (the "Company"), DOES
HEREBY CERTIFY that, pursuant to the provisions of Section 151(g) of the General
Corporation Law of the State of Delaware and pursuant to authority conferred
upon the Board of Directors by the provisions of the Amended and Restated
Certificate of Incorporation of the Company (the "Certificate of Incorporation),
the Board of Directors of the Company has duly adopted resolutions providing for
an amendment to the terms of the Series A Convertible Preferred Stock of the
Company. In addition, holders of more than two-thirds (2/3) of the outstanding
shares of Series A Convertible Preferred Stock have approved the amendment as
authorized by the Board of Directors. These resolutions are as follows:
RESOLVED, that Section 2(l) of the Certificate of the Powers,
Designations, Preferences and Rights of the Series A Convertible
Preferred Stock of the Company ("Certificate of Designation") as
currently in effect be, and it hereby is, amended and restated in its
entirety to read as follows:
"(L) "INITIAL DIVIDEND PERIOD" shall mean the interval
beginning on the Issue Date to and including a date to be specified by
the Board of Directors and which shall be no later than the earlier of
(i) twenty (20) days after the date on which the Company's registration
statement on Form S-3, covering the resale of the Common Shares and the
Common Stock issuable as dividend payments, is declared effective, or
(ii) March 31, 1998."
1.
<PAGE> 2
RESOLVED, that the officers of the Company be, and they hereby
are, authorized and directed, for and on behalf of the Company, to
submit the foregoing amendment to the Certificate of Designation for
the consent of the holders of not less than two-thirds (2/3) of the
shares of the Company's Series A Convertible Preferred Stock ("Series A
Preferred") outstanding.
Accordingly, Section 2(l) of the Certificate of Designation is hereby amended
and restated in its entirety to read as follows:
"(L) "INITIAL DIVIDEND PERIOD" shall mean the interval beginning on
the Issue Date to and including a date to be specified by the Board of Directors
and which shall be no later than the earlier of (i) twenty (20) days after the
date on which the Company's registration statement on Form S-3, covering the
resale of the Common Shares and the Common Stock issuable as dividend payments,
is declared effective, or (ii) March 31, 1998."
IN WITNESS WHEREOF, this Certificate has been signed by Daniel S.
Lankford of the Company, as of the 24th day of December, l997.
BOLDER TECHNOLOGIES CORPORATION
By: /s/ DANIEL S. LANKFORD
---------------------------------------
Daniel S. Lankford
President and Chief Executive Officer
2.
<PAGE> 1
EXHIBIT 4.8
AMENDMENT TO
AMENDED AND RESTATED BYLAWS OF
BOLDER TECHNOLOGIES CORPORATION
(ADOPTED BY THE BOARD OF DIRECTORS ON DECEMBER 23, 1997)
RESOLVED, that Section 13(d) of the Company's Amended and Restated
Bylaws as currently in effect be, and it hereby is, amended and restated in its
entirety to read as follows:
"(D) Notwithstanding the foregoing, no such action by written
consent may be taken following the closing of the initial public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), covering the offer and sale of Common Stock
of the corporation (the "Initial Public Offering"), unless such action by
written consent is solely being taken by, and is only applicable to,
stockholders of a class of security of the corporation which is not registered
pursuant to an effective registration statement under Section 12 of the
Securities Exchange Act of 1934, as amended ("Unregistered Stock"), and that
such action by written consent is taken by such class of stockholders solely in
their capacity as holders of Unregistered Stock."
<PAGE> 1
EXHIBIT 23.1
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 covering the registration
of 336,200 shares of Series A Preferred Stock and related shares of common
stock of our reports dated February 4, 1997, included in BOLDER Technologies
Corporation's Form 10-KSB for the year ended December 31, 1996 and to all
references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Denver, Colorado,
January 27, 1998.
