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As filed with the Securities and Exchange Commission on August 31, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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BOLDER TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 84-1166231
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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4403 TABLE MOUNTAIN DRIVE
GOLDEN, COLORADO 80403
(303) 215-7200
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
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DANIEL S. LANKFORD
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BOLDER TECHNOLOGIES CORPORATION
4403 TABLE MOUNTAIN DRIVE
GOLDEN, COLORADO 80403
(303) 215-7200
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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COPIES TO:
JAMES H. CARROLL, ESQ.
ANDREW D. DICKINSON, ESQ.
COOLEY GODWARD LLP
2595 CANYON BOULEVARD, SUITE 250
BOULDER, CO 80302
(303) 546-4000
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APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this registration
statement as determined by market conditions.
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, please 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, please 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. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER UNIT (1) OFFERING PRICE (1) REGISTRATION FEE
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Debt securities (2) (3) (3) (3)
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Preferred stock, par value $.001 (3) (3) (3)
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Depositary shares representing (3) (3) (3)
preferred stock (4)
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Warrants (3) (3) (3)
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Common stock, par value $.001 (5)(6) (3) (3) (3)
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Totals $30,000,000 (7) 100% (8) $30,000,000 (7)(8) $8,340 (9)
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The proposed maximum offering price
per unit will be determined from time to time by the Registrant in
connection with the issuance of securities registered hereunder. No
separate consideration will be received for common stock, preferred stock,
debt securities or warrants that are issued upon conversion or exchange of
debt securities, preferred stock, depositary shares or warrants.
(2) The debt securities registered hereby include such additional amount as may
be necessary so that, if debt securities are issued at an original issue
discount, the aggregate initial offering price of all debt securities will
equal $30,000,000.
(3) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933, as amended.
(4) To be represented by depository receipts representing an interest in all or
a specified portion of a share of preferred stock.
(5) There is also registered hereunder such indeterminate number of shares of
common stock as may from time to time be issued upon conversion or exchange
of debt securities, preferred stock, depository shares or warrants
registered hereunder.
(6) 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.
(7) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this registration statement exceed
$30,000,000 or the equivalent thereof in one or more foreign currencies
or composite currencies, including the euro. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder.
(8) Estimated solely for the purposes of computing the registration fee.
(9) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended.
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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 Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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SUBJECT TO COMPLETION PRELIMINARY PROSPECTUS
DATED AUGUST 31, 1999
[LOGO]
BOLDER TECHNOLOGIES CORPORATION
COMMON STOCK, PREFERRED STOCK, DEBT
SECURITIES, DEPOSITARY SHARES AND WARRANTS
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We may offer from time to time up to $30,000,000 of our common stock,
preferred stock, debt securities, depository shares, or warrants. When we offer
securities, we will provide you with a prospectus supplement or term sheet
describing the terms of the specific issue of securities, including the offering
price of the securities.
You should read this prospectus and the prospectus supplement or term
sheet carefully before you invest. The prospectus supplement or term sheet for
each offering of securities will describe in more detail the plan of
distribution for that offering. For general information about the distribution
of the securities offered, please see "Plan of Distribution" on page 25.
Our address and telephone number are: BOLDER Technologies Corporation.,
4403 Table Mountain Drive, Golden, Colorado 80403, (303) 215-7200.
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SEE "RISK FACTORS" BEGINNING ON PAGE 7 OF THIS PROSPECTUS FOR A
DISCUSSION OF CERTAIN FACTORS THAT YOU SHOULD CONSIDER BEFORE PURCHASING OUR
SECURITIES.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
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, 1999
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TABLE OF CONTENTS
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Page
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Where You Can Find More Information................................. 2
Forward-Looking Statements.......................................... 3
About this Prospectus............................................... 4
The Company......................................................... 4
Risk Factors........................................................ 7
Use of Proceeds..................................................... 17
Ratio of Earnings to Fixed Charges and Ratio of Earnings
To Combined Fixed Charges and Preferred Stock Dividends............. 17
The Securities...................................................... 18
Description of Common Stock......................................... 18
Description of Preferred Sock....................................... 20
Description of Debt Securities...................................... 22
Description of Depository Shares.................................... 24
Description of Warrants............................................. 24
Plan of Distribution................................................ 25
Legal Matters....................................................... 27
Experts............................................................. 27
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WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission. You may inspect and copy such material at
the public reference facilities maintained by the SEC at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the SEC's regional offices at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661, and at Seven World Trade Center, New York, New York 10048. You
can also inspect such materials at The National Association of Securities
Dealers, 1735 K Street, N.W., Washington, D.C.
Please call the SEC at 1-800-SEC-0330 for more information on the
public reference rooms. You can also find our SEC filings at the SEC's web site,
"http://www.sec.gov."
The SEC allows us to "incorporate by reference" the information that we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus. Information in this prospectus
supercedes information incorporated by reference which we filed with the SEC
prior to the date of this prospectus. Information that we file later with the
SEC will automatically update and supercede this information. We incorporate by
reference the documents listed below and any future filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934:
o Annual Report on Form 10-K for the fiscal year ended December 31,
1998;
o Quarterly Report on Form 10-Q for the period ended March 31, 1999;
o Quarterly Report on Form 10-Q for the period ended June 30, 1999;
o Definitive Proxy Statement dated April 30, 1999; and
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o The description of common stock contained in our Registration
Statement on Form 8-A declared effective by the Securities and
Exchange Commission on April 29, 1996, including any amendment or
reports filed for the purpose of updating such description.
You may request a copy of these filings (excluding exhibits which are not
specifically incorporated by reference into this prospectus), at no cost to you,
by writing or telephoning us at:
BOLDER Technologies Corporation
4403 Table Mountain Drive
Golden, Colorado 80403
Attention: Investor Relations
Telephone: (303) 215-7200
http://www.boldertmf.com
This prospectus constitutes a part of a registration statement on Form S-3
that has been filed with the SEC. SEC rules permit us to omit certain of the
information contained in the registration statement. For such information,
please refer to the registration statement on file with the SEC, including the
exhibits to the registration statement. The information contained on our Web
site does not constitute a part of this prospectus.
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YOU SHOULD RELY ONLY UPON THE INFORMATION CONTAINED IN THIS DOCUMENT OR
DOCUMENTS TO WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO
PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT. YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON
THE FRONT OF THIS PROSPECTUS.
FORWARD-LOOKING STATEMENTS
Statements about our expectations and all other statements made in this
registration statement or incorporated by reference hereby, other than
historical facts, are forward-looking statements. Those statements include words
such as "anticipate," "estimate," "project," "intend" and similar expressions
which we have used to identify these statements as forward-looking statements.
These statements appear throughout this prospectus and are statements regarding
our intent, belief, or current expectations, primarily with respect to the
operations of BOLDER Technologies Corporation or related industry developments.
You are cautioned that any such forward-looking statements do not guarantee
future performance and involve risks and uncertainties, and that actual results
could differ materially from those discussed here and in the documents
incorporated by reference in this prospectus. These factors, as and when
applicable, are discussed in our filings with the Securities and Exchange
Commission, including our most recent annual report on Form 10-K, a copy of
which may be obtained from us without charge. See "Where You Can Find More
Information."
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement (No. 333- ) that
we filed with the Securities and Exchange Commission utilizing a "shelf"
registration process. Under this shelf registration process, we may offer from
time to time up to $30,000,000 of any of the following securities, either
separately or in units: common stock, preferred stock, debt securities,
depositary shares representing preferred stock, and warrants. This prospectus
provides you with a general description of the securities we may offer. Each
time we offer securities, we will provide you with a prospectus supplement or
term sheet that will describe the specific amounts, prices and terms of the
securities being offered. The prospectus supplement or term sheet may also add
to, update or change information contained in this prospectus.
THE COMPANY
BOLDER Technologies Corporation ("Bolder") is an energy technology company
that is developing and commercializing advanced, high power, rechargeable
battery systems based on our patented thin metal film ("TMF") technology. Our
TMF battery uses proven lead acid electrochemistry in a proprietary
configuration that has higher power density than any other commercially
available battery system. We believe that our TMF batteries are attractive for
many existing battery-powered applications that require very large bursts of
power, and will enable new applications that could not previously be powered by
batteries. In addition, we believe that the combination of the following
characteristics of our TMF battery systems offers advantages over commercially
available rechargeable batteries in a broad range of current and future
applications.
o HIGH POWER. We believe our TMF batteries can deliver higher sustained
power density than any other commercially available battery
technology. This is important in existing applications such as high
power/pulse power tools, specialty standby power, power quality and
engine starting, and may enable new applications ranging from high
performance hybrid electric vehicles to an automotive starting battery
that weighs substantially less than conventional automotive starting
batteries.
o COST EFFECTIVE. TMF batteries are manufactured using inexpensive,
readily available raw materials. In addition, we believe our
manufacturing process will be cost effective at high volumes.
o NO MEMORY EFFECT. TMF batteries do not suffer from the memory effect
that reduces the capacity of nickel cadmium ("NiCd") batteries if they
are partially discharged and recharged repeatedly.
o SMALL SIZE. In high power applications, such as high power/pulse power
tools, automotive starting and standby power, TMF batteries can do the
same amount of work as much larger conventional rechargeable
batteries. Since the battery system typically accounts for a
significant part of the physical volume and weight of these products,
TMF technology can make such products easier to use and/or less
expensive to manufacture by enabling reductions in product size.
o FASTER RECHARGE. TMF batteries can be recharged to full capacity in
less than five minutes with an appropriate charger, allowing the
device to be back to work quickly, thus increasing the "up time" of
the device.
o STABLE DISCHARGE VOLTAGE. In some applications, notably standby power,
electronic circuits must be used to compensate for the voltage drop
during discharge of other types of rechargeable batteries. TMF
batteries have very stable voltage during high rate discharge, and
thus provide more consistent performance and potentially reduce the
need for and cost of voltage regulation.
o COOL OPERATION. High power operation of batteries typically generates
significant heat that must be accommodated in the design of products,
such as standby power systems or professional power tools. The low
impedance of TMF batteries greatly reduces the amount of heat
generated by the battery, thus simplifying product design.
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o SUPERIOR COLD TEMPERATURE OPERATION. All batteries lose capacity as
the temperature drops. TMF batteries lose much less of their room
temperature capacity at lower temperatures than do conventional
batteries.
o EXTREMELY RAPID RESPONSE. TMF batteries deliver energy when requested
much more rapidly than conventional batteries.
o EASY TO RECYCLE. Environmental concerns have made recycling of
batteries increasingly important. Unlike many existing and emerging
battery technologies, TMF batteries are readily handled by the well
developed recycling process that is currently used to recycle
approximately 90 percent of the lead acid batteries in the United
States.
We have focused our initial product development efforts on our sub-C cell,
which was introduced in October 1998. The sub-C cell can be used as a modular
building block for battery packs that can be used in a variety of applications.
In May 1997, we moved to a new 127,000 square foot leased manufacturing
facility and corporate headquarters in Golden, Colorado. The facility is
designed to accommodate multiple production lines and two research and
development lines, as well as all of our other operations. In the third quarter
of 1997, we received our first high-volume manufacturing line from our vendor.
The manufacturing line is designed to produce four million sub-C two-volt
battery cells per year.
For approximately one year after we received our production line, we
focused most of our resources on qualifying the line for commercial production.
We completed a process of debugging, testing and qualifying the production line,
as well as making appropriate modifications to the line, in the fourth quarter
of 1998. We are currently producing several thousand sub-C cells per month for
sampling, to fulfill small orders, to conduct experiments to improve our
production process and product performance, and to build inventory for assembly
of the BOLDER SECURESTART(TM) instant engine starting product that we introduced
in August 1999.
We believe that the task of improving the efficiency of our first
production line, the efficiency of the overall manufacturing process, and the
performance of our TMF battery products will be an ongoing activity, as with any
new process technology, even beyond the start of our commercial operations.
Additional modifications will be required from time to time to improve the
production capability of the line. Similarly, changes in the design of our
products will be required from time to time to improve product performance.
Recently, we have begun to focus on the design and introduction of a series
of end-use customer products based on our TMF technology. On August 5, 1999, we
introduced the BOLDER SECURESTART(TM), an instant engine starter, which is based
on our TMF technology and, specifically, the sub-C cell. In addition, in June
1999 we announced an agreement with Snap-on Tools Company, a subsidiary of
Snap-on Incorporated, to supply our TMF battery technology to a line of Snap-on
products for professional auto technicians.
We are also working with prospective OEM customers to develop market
opportunities and leverage our resources. Presently, certain of our prospective
OEM customers are testing and evaluating our TMF batteries. These companies may
design our TMF batteries into one or more of their products. However, we
currently expect only modest product shipments to our prospective OEM customers
prior to the completion of their testing and evaluation processes. In addition,
there can be no assurance that our prospective OEM customers will design our TMF
batteries into any of their products.
We currently expect that:
o we will generate revenues primarily from the sale of our TMF-based
products;
o product shipments and resulting revenues will remain at nominal levels
until we begin to ship our SECURESTART product in or after the fourth
quarter of 1999; and
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o the majority of our near-term revenues to be generated from sales of
our SECURESTART product.
In June 1995, we entered into a joint venture with Johnson Controls, Inc.
("JCI"), one of the world's leading suppliers of automotive batteries. The
primary objective of the joint venture was to develop high volume manufacturing
technology for TMF batteries. In 1997, after the joint venture had substantially
completed its primary objective, the joint venture was terminated and we entered
into a new relationship with JCI. Under the terms of the new relationship, which
were finalized in July 1997, JCI will separately implement TMF
battery-manufacturing facilities to best meet the unique requirements of its
markets. In connection with the termination of the joint venture, we received a
cash payment from JCI, retained all of the tangible net assets of the joint
venture, granted JCI certain royalty-bearing licenses, committed to provide
certain technology transfer services to JCI, and entered into a cross supply
agreement with JCI pursuant to which each party has agreed to supply the other
party with minimum quantities of TMF battery products for several years. Each of
the licenses that we granted to JCI in connection with the termination of the
joint venture is royalty bearing, and certain of the licenses are subject to
minimum royalties and minimum performance criteria. We completed all of our
obligations to provide technology transfer services to JCI in 1998.
We were incorporated in Colorado in 1991 and reincorporated in Delaware in
1993. Our executive offices are located at 4403 Table Mountain Drive, Golden,
Colorado 80403, and our telephone number is (303) 215-7200. Our Web site address
is "www.boldertmf.com." Information contained on our Web site does not
constitute part of this prospectus.
References in this prospectus to "Bolder," "we," "our," and "us" refer to
BOLDER Technologies Corporation, a Delaware corporation.
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RISK FACTORS
An investment in the securities being offered by this prospectus involves a
high degree of risk. The risks and uncertainties described below are not the
only ones we face. Additional risks and uncertainties not presently known to us
or that we currently deem immaterial may also impair our business. We will
describe the risks relating specifically to the different types of securities we
may offer under this registration statement in the supplemental prospectus or
term sheet relating thereto.
If any of the events described in the following risks actually occur, our
business, financial condition and operating results could be materially
adversely affected. In such case, the trading price of our securities could
decline, and you may lose all or part of your investment.
WE ARE A DEVELOPMENT STAGE COMPANY, HAVE A LIMITED OPERATING HISTORY AND ARE
SUBJECT TO MANY RISKS APPLICABLE TO A YOUNG COMPANY.
Since our inception in 1991, we have been principally engaged in research
and development activities relating to our TMF batteries. To date, our revenues
have been derived solely from technology transfer services, license fees,
federal Small Business Innovation Research research and development agreements,
customer funded research and development agreements and limited sales of
prototype batteries. Since inception, we have generated revenues of
approximately $389,000 from sales of our batteries. We did not commence initial,
limited commercial production of our TMF batteries until October 1998. We do not
expect a significant volume of product shipments and resulting product sales
revenues prior to the fourth quarter of 1999. The market for our products is
unproven.
We will encounter the risks and difficulties frequently encountered by
development stage companies in new and evolving markets. We may not successfully
address any of these issues.
WE HAVE A HISTORY OF LOSSES, WE EXPECT TO LOSE MONEY IN THE FUTURE AND WE MAY
NOT ACHIEVE OR SUSTAIN PROFITABILITY.
We have not achieved profitability or material revenues from the sale of
battery products. As of June 30, 1999, we had an accumulated deficit of $39.8
million. We do not expect to have material product revenues until the fourth
quarter of 1999 at the earliest. We do not expect to have a profitable quarter
prior to the second half of 2000 or thereafter. We expect to incur significant
losses as we continue to incur significant sales and marketing, research and
development and general and administrative expenses. There is no guarantee that
we will ever be profitable or, if we do achieve profitability, that we will
sustain or increase profitability on a quarterly or annual basis in the future.
MARKET ACCEPTANCE OF OUR TMF BATTERIES AND END-USE PRODUCTS IS UNCERTAIN.
The markets for our TMF batteries and end-use products are unproven and our
TMF batteries and end-use products have not achieved any degree of market
acceptance. To achieve market acceptance, our TMF batteries and end-use products
must offer significant price and/or performance advantages over other current
and potential alternatives in a broad range of applications. We cannot guarantee
that our TMF batteries or end-use products will achieve or sustain any such
advantages. Even if our TMF batteries and/or end-use products provide meaningful
price or performance advantages, we cannot be certain that they will achieve or
maintain market acceptance in any potential market application. The success of
our TMF batteries also will depend upon the level of market acceptance of our
OEMs' and other customers' end products which incorporate our TMF batteries,
over which we have no control. We expect that our future financial performance
will depend significantly on the successful sales, implementation and market
acceptance of our TMF batteries and end-use products, which may not occur on a
timely basis or at all.
OUR SUCCESS WILL DEPEND ON OUR ABILITY TO MEET CUSTOMER REQUIREMENTS.
Our success will depend significantly on our ability to meet end-use and
OEM customer requirements by developing and introducing on a timely basis new
products and enhanced or modified versions of our existing
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products. Certain of our OEM customers may 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. As a result, a
substantial lead time may exist between the commencement of design efforts for a
customized battery system and the commencement of volume shipments of the
battery system.
If we are unable to design, develop and introduce products that meet our
end-use or OEM customer's requirements on a timely basis, our business,
operating results and financial condition could be materially and adversely
affected.
WE ARE NOT EXPERIENCED IN THE RETAIL MARKETING OF END-USER PRODUCTS. WE WILL
DEPEND UPON OUTSIDE SALES REPRESENTATIVES AND RESELLERS TO DEVELOP THE RETAIL
SALES CHANNEL FOR OUR END-USER PRODUCTS.
We have announced plans to introduce a line of end-user products based on
TMF batteries beginning in the fourth quarter of 1999. We expect that end-user
products will account for a significant portion of our product revenues. We
intend to market these products in retail stores and other consumer distribution
outlets. We do not have any experience in the promotion, advertising and
distribution of retail products to consumers, and our efforts to develop a
retail sales channel may be unsuccessful.
To develop the retail sales channel, we will depend upon outside sales
representatives, distributors, resellers and retail operators. It is likely that
our agreements with such persons will not be exclusive, will not have minimum
purchase or resale requirements, and may be terminated by either party without
cause. These persons may carry products that are competitive with our products,
may not give a high priority to the marketing of our products, or may not
continue to carry our products. They may give a higher priority to other
products, including the products of competitors. We may not be able to obtain or
retain the sales representatives, distributors, resellers or retailers needed to
develop the retail sales channel.
During the initial phase of our product introductions, we may receive
significant initial "stocking orders" from retailers. These stock orders may not
recur, and may take some time to be absorbed through our distribution channel
and into the hands of end users. Accordingly, our revenue from such products may
be erratic and volatile until our products are widely distributed and accepted
by the market.
IF OUR ORIGINAL EQUIPMENT MANUFACTURER CHANNEL DOES NOT PERFORM ADEQUATELY, OUR
BUSINESS COULD BE HARMED.
We expect that product sales to OEMs will account for a portion of our
product revenues. We may fail to implement this strategy. We are currently
investing, and intend to continue to invest, resources to develop this sales
channel. Such investments could seriously harm our operating margins. We depend
on our OEMs' abilities to develop product enhancements or new products on a
timely and cost-effective basis that will meet changing customer needs and
respond to emerging industry standards and other technological changes. Our OEMs
may not effectively meet these technological challenges. These original
equipment manufacturers:
o Are not within our control;
o May incorporate into their products the technologies of other
companies in addition to or in place of our technologies; and
o Are not obligated to purchase our products.
Our OEMs may not continue to carry our products. Our inability to recruit,
or our loss of, important original equipment manufacturers could have a negative
impact on our business.
WE ARE DEPENDENT UPON EFFECTIVE STRATEGIC RELATIONSHIPS.
We expect to rely on a limited number of strategic relationships to
accelerate the commercialization of our products by assisting in the design and
development of products for certain applications, as well as to provide
manufacturing and marketing expertise. We currently have strategic relationships
with Johnson Controls and three VAPs located throughout North America and
Europe.
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We may be unable to enter into any other such partnerships and existing
relationships may not achieve their goals. The success of any strategic
partnership is dependent upon the following:
o the general business condition of our partner;
o our partner's commitment to the strategic partnership;
o the skills and experience of our partner's employees responsible for
the strategic partnership; and
o our partner's timely and satisfactory performance of its obligations
under the partnership.
To the extent we enter into strategic partnerships, the terms of the
partnerships may require us and our partners to share revenues and/or expenses
from certain activities or for us to grant to our partners licenses to
manufacture, market and/or sell products based upon our TMF technology, which
could adversely affect our business, operating results and financial condition.
WE ARE IN THE EARLY STAGES OF MANUFACTURING AND MUST CONTINUE TO DEVELOP OUR
MANUFACTURING CAPABILITIES.
The difficulties and risks related to the implementation of our
manufacturing line and new process technology have in the past and may in the
future materially and adversely affect our operating results.
We did not commence initial commercial production of our TMF batteries
until October 1998. We are currently producing several thousand batteries per
month for sampling, to fulfill small orders, to conduct experiments to improve
our production process and product performance, and to build inventory for
assembly of the BOLDER SecureStart(TM) instant engine starting product that we
introduced in August 1999. Although our initial automated production line is
installed, qualified and functional, we have not yet operated this line at full
capacity over an extended period of time.
A key determinant of our current and future production capacity and
profitability is the production yield of our manufacturing process. Failure to
achieve acceptable yields of commercial quality batteries in commercial
quantities, and thereby reduce our unit manufacturing costs, would negatively
affect our profitability. In addition, failure to continue volume manufacturing
on a timely basis could damage customer relationships and result in lost
opportunities. Any such failure would have a material adverse effect on our
business, operating results and financial condition.
In order to continue to scale up our manufacturing capacity, we will need
to complete fabrication, installation and qualification of additional automated
production equipment. In addition, as part of our manufacturing ramp-up, we 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 our manufacturing facility, is limited due to a relatively low
unemployment rate. The continued implementation of our manufacturing facility
will continue to require substantial engineering work and expenses and is
subject to significant risks, including risks of cost overruns and significant
delays.
WE RELY ON THIRD PARTIES TO MANUFACTURE PARTS FOR AND ASSEMBLE CERTAIN OF OUR
PRODUCTS.
We currently rely on a third party to manufacture parts for and assemble
our SECURESTART product. In addition, we may outsource additional manufacturing
and assembly work relating to our products in the future. Our business,
operating results and financial condition could be materially and adversely
affected if one or more of our contractors fails to perform its manufacturing,
assembly, or other obligations to us in a timely and satisfactory manner.
WE MAY NOT BE ABLE TO COMPETE SUCCESSFULLY IF WE FAIL TO KEEP PACE WITH RAPIDLY
CHANGING TECHNOLOGIES.
The battery industry has experienced, and is expected to continue to
experience, rapid technological change. 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, lithium and other emerging and potential technologies. If
competing technologies that outperform our batteries are
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developed and successfully introduced, our business, operating results and
financial condition will be materially and adversely affected.
In addition, the instant engine starting industry has experienced, and is
expected to continue to experience, rapid technological changes. Various
companies are seeking to enhance instant engine starting technologies and have
introduced or are developing instant engine starting products that will compete
with our instant engine starting products. If competing technologies that
outperform our instant engine starting products are developed and successfully
introduced, our business, operating results and financial condition could be
materially and adversely affected.
WE MAY NOT BE ABLE TO OBTAIN ADDITIONAL CAPITAL TO FUND OUR OPERATIONS WHEN
NEEDED.
We will require substantial funds to build and operate commercial
manufacturing facilities, to market our products and to conduct the necessary
research and development and testing of our products. We believe that our
current cash reserves and cash flows from operations should be adequate to fund
our operations at least through the first quarter of 2000. In order to continue
planned operations beyond the first quarter of 2000 and to provide funds for
additional production capacity, we will need to access additional sources of
equity capital or debt. If our capital requirements or revenue vary materially
from our current plans or if unforeseen circumstances occur, we may require
additional financing sooner than we anticipate. We are unable to predict the
precise amount of future capital that we may require. Additional financing may
not be available when we require it, and the form and terms of any such
available financing may not be acceptable.
If we cannot obtain adequate funds on acceptable terms, then:
o we may have to delay, scale back or eliminate one or more of our
development programs;
o we may have to delay, scale back or eliminate any substantial
expansion of fully-automated manufacturing capacity;
o we may have to curtail or otherwise discontinue the development,
manufacture or sale of our TMF battery systems;
o we may have to sell additional securities on terms that could be
dilutive to our stockholders;
o we may be unable to take advantage of strategic opportunities or
respond to competitive pressures;
o we may be unable to develop or enhance our products; and
o we may have to seek a merger partner or suspend operations.
Any of these failures could have a material adverse effect on our business,
operating results and financial condition.
INTENSE COMPETITION EXISTS IN THE BATTERY AND INSTANT ENGINE STARTING INDUSTRIES
AND WE EXPECT COMPETITION TO CONTINUE TO INTENSIFY.
Competition in the battery and instant engine starting industries is
intense. We expect that competition will continue to intensify.
Currently, our primary instant engine starting competitors include:
o Century Manufacturing Co., an affiliate of Pentair, Inc.; and
o K&K Jump Start/Chargers, Inc.
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In applications such as portable tools and appliances and certain
electronic and medical products, our primary competitors are suppliers of NiCd
batteries, including:
o SANYO Energy (USA) Corporation;
o Panasonic Industrial Company, a division of Matsushita Electric
Corporation of America;
o Energizer Power Systems, a division of Eveready Battery Company; and
o SAFT America, Inc.
In applications such as car starting, standby power and certain medical and
electronics applications, our primary competitors are suppliers of lead acid
batteries:
o Suppliers of automotive batteries include Johnson Controls, Inc.,
Exide Corporation, GNB Inc. and Delphi Automotive Systems Corporation,
formerly a division of General Motors Corporation; and
o Suppliers of small lead acid batteries used in non-automotive
applications include Yuasa Exide, Inc., Exide Corporation, Matsushita
Electric Corporation of America, Hawker Energy Products, Inc., CSB
Battery of America Corp. and GS Battery USA, Inc., a division of Japan
Storage Battery Co., Limited.
In addition, we have granted Johnson Controls certain license rights which
allow Johnson Controls to compete with us in lawn and garden starting,
motorcycle starting, hybrid electric vehicles, standby power, and emergency
jump-starting batteries.
We may not be able to compete successfully against our current or future
competitors. Many of our competitors have established positions in the market,
greater name recognition, financial, technical, marketing, sales, manufacturing,
distribution and other resources and long standing relationships with OEMs and
other customers. These factors may place us at a disadvantage when we respond to
our competitors' pricing strategies, technological advances and other
initiatives. Specifically, we may not be able to compete successfully with
Johnson Controls in the markets where Johnson Controls has a royalty-bearing
license from us. Additionally, our competitors may develop services that are
superior to ours or that achieve greater market acceptance. Our inability to
successfully respond to competitive pressures would have a material adverse
effect on our business, operating results and financial condition.
FAILURE TO MANAGE OUR GROWTH EFFECTIVELY COULD ADVERSELY AFFECT OUR BUSINESS.
Our transition from a development stage company to a manufacturing company
has strained and will continue to strain our managerial, operational and
financial resources. If our products achieve market acceptance, we will need to
further increase our number of employees and enhance our operating systems and
practices. We must effectively manage our operational and financial systems,
procedures and controls to manage this future growth. Further, our transition
from a research and development focused entity to a manufacturing and customer
focused entity will require new processes and activities that we have not done
before.
A NUMBER OF FACTORS COULD CAUSE OUR OPERATING RESULTS TO FLUCTUATE SIGNIFICANTLY
AND OUR STOCK PRICE TO FALL.
We expect our annual and quarterly operating results to fluctuate
significantly in the future. It is possible that in some future periods our
results may be below expectations of public market analysts and investors. If
this occurs, the trading price of our securities could significantly decline.
Our operating results may fluctuate in the future due to a variety of factors,
not all of which are in our control. These factors include:
o the size and timing of individual purchase orders;
o market acceptance of our battery and end-use products, including our
instant engine starting products;
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<PAGE> 15
o implementation of additional automated production capacity;
o manufacturing yields and efficiency;
o changes in our operating expenses;
o product development programs;
o the long sales cycle in the OEM market for our products; and
o general industry and economic conditions.
The success of our business depends on increasing revenues to offset
expenses. We cannot assure you that we will generate sufficient revenues to
offset our expenses. If our revenues are less than expected, or if we increase
our spending ahead of our revenue growth, our business, financial condition and
operating results will be materially and adversely affected. You should not rely
on annual or quarter-to-quarter comparisons of our operating results as an
indication of future performance.
WE ARE DEPENDENT ON OUR SUPPLIERS FOR RAW MATERIALS.
We are dependent on sole or limited source suppliers for certain key raw
materials used in our products, particularly thin lead foil, lead oxide, molded
components, separators, acid and expander components. We have qualified, or we
are in the process of qualifying, second or additional sources for all primary
product components. We generally purchase sole or limited source raw materials
pursuant to purchase orders placed from time to time and we have no long-term
contracts or other guaranteed supply arrangements with our sole or limited
source suppliers. If our suppliers are unable to meet our quality and volume
requirements for raw materials in a timely manner and at an acceptable cost, it
could have a material adverse effect on our business, financial condition and
operating results.
OUR INABILITY TO PROTECT OUR INTELLECTUAL PROPERTY MAY ADVERSELY AFFECT OUR
ABILITY TO COMPETE.
Patents, trade secrets and other proprietary rights are important to our
success and competitive position. Our efforts to protect our proprietary rights
may be inadequate and may not prevent others from claiming violations by us of
their proprietary rights.
We hold seven issued United States patents which expire beginning in 2008
and ending in 2016. We also have four issued foreign patents. In addition, we
have ten patents pending in the United States, as well as 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, we
cannot be certain that we are the first creator of inventions covered by pending
patent applications or the first to file patent applications on such inventions.
We cannot be certain that our pending applications will result in issued
patents or that foreign patent applications related to issued United States
patents will issue. Because the status of patents involves complex legal and
factual questions and the breadth of claims issued is uncertain, we cannot be
certain that any of our issued patents will afford meaningful protection against
competitors with similar technology. In addition, with respect to foreign
patents, some foreign countries provide significantly less patent protection
than the United States.
In addition to patent protection, we rely on the law of unfair competition
and trade secrets to protect our proprietary rights.
The unauthorized misappropriation of our proprietary rights could have a
material adverse effect on our business, financial condition and operating
results. Other companies may infringe upon our patents and other proprietary
rights or may obtain patents that will require us to license or design around
such patents. If we resort to legal proceedings to enforce our proprietary
rights, the proceedings could be burdensome and expensive and the
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<PAGE> 16
outcome could be uncertain. To determine the priority of inventions, we 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 and may result in an adverse decision as to the
priority of our inventions.
WE ARE SUBJECT TO CLAIMS ALLEGING INTELLECTUAL PROPERTY INFRINGEMENT.
We may be subject to claims alleging that we have infringed third party
proprietary rights. If we were to discover that any of our products infringed
third party rights, we may not be able to obtain permission to use those rights
on commercially reasonable terms. If we resort to legal proceedings to enforce
our proprietary rights or defend against alleged infringements, the proceedings
could be burdensome and expensive and could involve a high degree of risk. Any
of these events could have a material adverse effect on our business, operating
results and financial condition.
WE MAY NOT BE ABLE TO SUCCESSFULLY OPERATE OUR BUSINESS IF WE LOSE KEY
PERSONNEL.
We believe that our success will depend on the continued services of our
senior management team and other key personnel. The loss of the services of any
of our senior management team or other key employees could materially adversely
affect our business, operating results and financial condition. In addition, we
rely on consultants and advisors to assist us in formulating our research and
development strategy. We do not have fixed term employment contracts with any of
our key executives. We maintain key person life insurance on Daniel S. Lankford,
our President and Chief Executive Officer, Sandra D. Schreiber, our Senior Vice
President--Systems and Supply Chain, and Arthur S. Homa, our Senior Vice
President--Technology and Manufacturing.
OUR BUSINESS WILL SUFFER IF WE DO NOT ATTRACT AND RETAIN HIGHLY SKILLED
PERSONNEL.
In order to continue to pursue our product development and marketing plans,
our future success depends on our ability to identify, attract, hire and train
highly skilled scientific, manufacturing and sales and marketing personnel.
These requirements are also expected to demand the addition of management
personnel and the development of additional expertise by existing management
personnel. Our failure to attract and retain the necessary scientific,
manufacturing and sales and marketing personnel could materially and adversely
affect our business, operating results and financial condition, including our
ability to conclude collaborations with additional corporate partners.
OUR INABILITY TO COMPLY WITH ENVIRONMENTAL REGULATIONS MAY ADVERSELY AFFECT OUR
BUSINESS.
Our 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, we are required to maintain our research and
manufacturing operations in compliance with United States federal, state and
local laws and regulations, including but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, that govern the
storage, use and disposal of various chemicals used in and waste materials
produced by the manufacture of our TMF batteries.
For example, our manufacturing facilities 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 guidelines to submit to blood monitoring tests on a periodic
basis which are undertaken by an outside, independent agency.
We may be unable to operate in conformity with such laws and regulations in
the future. Additionally, changes in such regulations may require us to incur
substantial capital or operating costs to achieve or maintain compliance. Any
failure by us to adequately control the discharge of our hazardous materials and
wastes could also subject us to future liabilities, which could be significant.
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<PAGE> 17
OUR BUSINESS COULD BE AFFECTED BY YEAR 2000 ISSUES.
Year 2000 issues refer generally to the problems that some software may
have in determining the correct century for the year. For example, software with
date-sensitive functions that is not Year 2000 compliant may not be able to
distinguish whether "00" means 1900 or 2000, which may result in failures or the
creation of erroneous results.
We rely upon software in our information systems and manufacturing
equipment, most of which was installed and written within the past three years.
We have completed an inventory of our critical control systems, computers, and
application software.
We plan to validate each of our internal systems by September 30, 1999. To
date, this plan has been implemented through a combination of written vendor
confirmations and specific validation testing. We have tested 95% of our
equipment and software have found it to be compliant, applied supplier fixes or
replaced the equipment. In addition, we have implemented processes to identify
and evaluate the Year 2000 status of newly acquired equipment, and to evaluate
supplier and customer Year 2000 compliance. These programs will continue through
the end of 1999. We intend to maintain contingency plans for each of our key
relationships as they arise, such as second sourcing, purchasing additional
inventory, and creating joint contingency plans for Year 2000 situations.
We are not currently aware of any significant operational issues or costs
associated with preparing our internal information technology and
non-information technology systems for the Year 2000. However, we may experience
significant unanticipated problems and costs caused by undetected errors or
defects in the technology used in our internal information technology and
non-information technology systems. These problems and costs could seriously
harm our business, financial condition and results of operations.
In addition, we may experience significant unanticipated problems and costs
caused by external Year 2000 compliance failures that generally affect industry
and commerce, such as utility or transportation company interruptions. Such
problems and costs could seriously harm our business, financial condition and
results of operations.
We have funded and will continue to fund our Year 2000 plan from cash
balances and have not separately budgeted for these costs in the past. To date,
our Year 2000 costs have not been significant and we do not anticipate that we
will incur significant costs associated with the Year 2000 in the future. There
can be no guarantee, however, that we will not incur significant costs
associated with internal and external Year 2000 compliance failures.
We believe that our most likely risks from Year 2000 issues are external,
due to the difficulty of validating key third parties' readiness for Year 2000.
Even if we obtain Year 2000 compliance assurances from third parties, there is
still a risk that a major supplier of raw materials, or a major OEM customer,
could become unreliable due to Year 2000 problems.
OUR PRODUCT LIABILITY INSURANCE MAY NOT BE SUFFICIENT TO COVER PRODUCT LIABILITY
CLAIMS.
Lead acid batteries, including our 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, our 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. Such occurrences may result in product
liability claims against us.
Additionally, we intend to manufacture and retail end user products to
consumers, such as instant engine starting products. The sale of such products
may expose us to product liability claims from consumers.
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Although we maintain product liability insurance in amounts which we
believe are reasonable given the associated risks, we cannot be certain 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.
CONTROL BY EXISTING STOCKHOLDERS MAY LIMIT YOUR ABILITY TO INFLUENCE THE OUTCOME
OF DIRECTOR ELECTIONS AND OTHER MATTERS REQUIRING STOCKHOLDER APPROVAL.
Approximately 31% of our outstanding stock is owned by two venture capital
funds. These stockholders may be able to significantly influence matters that we
require our stockholders to approve, including electing directors and approving
significant corporate transactions. This concentration of ownership may also
have the effect of delaying or preventing a change in control of us, which could
result in a lower stock price.
CERTAIN PROVISIONS IN OUR CORPORATE DOCUMENTS MAY DISCOURAGE OUR ACQUISITION BY
OTHERS AND THUS DEPRESS OUR STOCK PRICE.
Our corporate documents and Delaware law could make it more difficult for a
third party to acquire us, even if a change in control would be beneficial to
our stockholders. In particular, we adopted a stockholder rights plan in 1998.
These and other provisions might discourage, delay or prevent a change in
control of us or a change in our management. These provisions could also limit
the price that investors might be willing to pay in the future for our
securities.
THE PRICES FOR OUR SECURITIES ARE LIKELY TO BE HIGHLY VOLATILE, AND YOU MAY NOT
BE ABLE TO RESELL OUR SECURITIES AT OR ABOVE THE OFFERING PRICE.
The market price of our common stock has been and is likely to be highly
volatile as the stock market in general, and the market for technology companies
in particular, has been highly volatile. Investors may not be able to resell
their securities following periods of volatility because the market reacts
adversely to volatility.
Factors that could cause volatility in our securities may include, among
other things:
o actual or anticipated variations in our quarterly operating results;
o if we or our competitors announce technological innovations or new
commercial products;
o changes in governmental regulation;
o developments in our patents or other proprietary rights or those of
our competitors, including litigation;
o developments in our relationships with current or future collaborative
partners;
o if securities analysts change their financial estimates for us or for
our competitors;
o general conditions or trends in the stock market;
o if we add or lose key personnel; and
o if our stockholders sell our securities.
Many of these factors are beyond our control. These factors may materially
adversely affect the market price of our securities, regardless of our operating
performance.
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FUTURE SALES OF OUR SECURITIES IN THE PUBLIC MARKET COULD CAUSE THE PRICE OF OUR
SECURITIES TO FALL AND DECREASE THE VALUE OF YOUR INVESTMENT.
The market price of our securities could fall if the holders of our
securities sell substantial amounts of our securities, including securities
issued upon the exercise of outstanding options and warrants and upon conversion
of the outstanding Series A Preferred Stock, in the public market following this
offering. Such sales might also make it more difficult for us to sell securities
in the future at a time and price that we deem appropriate.
Some of our security holders are entitled to certain registration rights.
The exercise of such rights could adversely affect the market price of our
securities.
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USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities to repay
indebtedness and for general corporate purposes, unless otherwise specified in
the prospectus supplement or term sheet relating to such securities. Pending
such applications, we will invest the net proceeds in interest-bearing
investment grade securities.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
We had no earnings for the periods presented. Accordingly, our ratio of
earnings to fixed charges and ratio of earnings to combined fixed charges and
preferred stock dividends are not meaningful for the periods presented.
The following table sets forth our deficiency of earnings to fixed charges
and deficiency of earnings to combined fixed charges and preferred dividends for
the periods presented.
<TABLE>
<CAPTION>
Six Months
Ended
June 30, Year Ended December 31,
----------- ------------------------------------------------------------------------
1999 1998 1997 1996 1995 1994
----------- ------------ ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Deficiency of earnings to
fixed charges $ 8,296,104 $ 11,590,207 $ 9,696,729 $ 3,612,432 $ 3,313,817 $ 3,388,268
Deficiency of earnings to
combined fixed
charges and $ 9,160,092 $ 13,317,324 $ 10,099,049 $ 3,612,432 $ 3,313,817 $ 3,388,268
preference dividends
</TABLE>
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THE SECURITIES
We intend to sell our securities from time to time. These securities may
include the following, in each case, as specified by us at the time of offering:
(1) common stock, (2) preferred stock, (3) debt securities, comprising senior
debt securities and subordinated debt securities, each of which may be
convertible into common stock or preferred stock, (4) depository shares
representing preferred stock, and (5) warrants to purchase debt securities,
preferred stock, common stock or units representing any combination of the
foregoing securities.
We will offer the securities to the public on terms determined by market
conditions at the time of sale and set forth in a prospectus supplement or term
sheet relating to the specific issue of securities. We will offer the securities
described in this prospectus either separately or together in one or more series
of up to $30,000,000 aggregate public offering price or its equivalent in
foreign currencies or units of two or more currencies, based on the applicable
exchange rate at the time of the offering, as shall be designated by us at the
time of the offering.
Our authorized capital stock presently 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 July 31, 1999, there were approximately 320 record
holders of our common stock.
DESCRIPTION OF COMMON STOCK
The holders of our common stock are entitled to one vote for each share
held of record on all matters submitted to a vote of our 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 our board of directors out of funds
legally available therefor. In the event of a liquidation, dissolution or
winding up of Bolder, 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.
American Stock Transfer & Trust Company acts as transfer agent and
registrar for the common stock.
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 Bolder. The terms of the Rights
are set forth in a Rights Agreement (the "Rights Agreement") dated as of January
23, 1998, between Bolder 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 Bolder 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, we 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 us.
Our Shareholder Rights Plan may have the effect of discouraging unsolicited
takeover attempts.
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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 Securities and
Exchange Commission.
OUTSTANDING REGISTRATION RIGHTS
Pursuant to an existing agreement between Bolder and certain of our
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 of 1933, as amended. If we propose to register any of our
securities under the Securities Act, either for our 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 our 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 us, on not more than two occasions, to file a
registration statement under the Securities Act, at our expense, with respect to
their shares of common stock, and we are required to use our best efforts to
effect the registration, subject to certain conditions and limitations. However,
the Holders may not require us to file any such registration statement within 90
days of the effective date of any prior registration statement covering our
common stock, and we may defer the filing of such registration statement for up
to 120 days. Further, certain of the Holders may require us, at our expense, to
register their shares of common stock on a Form S-3, subject to certain
conditions and limitations.
DELAWARE ANTI-TAKEOVER LAW AND CHARTER PROVISIONS
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law ("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.
Our Certificate of Incorporation (the "Certificate of Incorporation") also
requires that any action required or permitted to be taken by our stockholders
must be effected at a duly called annual or special meeting of 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 our
stockholders may be called only by our board of directors, the chairman of our
board of directors or our chief executive officer. The Certificate of
Incorporation also provides that the authorized number of directors may be
changed only by resolution of our board of directors, and that directors can
only be removed for cause by a majority vote of our stockholders. In addition,
the Certificate of Incorporation provides for the classification of our 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 Bolder, depressing the market price of our
common stock or discouraging hostile takeover bids in which our stockholders
could receive a premium for their shares of common stock.
LIMITATION ON DIRECTORS' LIABILITY
The Certificate of Incorporation limits the liability of our directors or
our stockholders (in their capacity as directors but not in their capacity as
officers) to the fullest extent permitted by Delaware law. Specifically, our
directors 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 Bolder or our 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.
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The inclusion of this provision in our 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 Bolder and our
stockholders.
DESCRIPTION OF PREFERRED STOCK
GENERAL DESCRIPTION
The following description sets forth general terms of preferred stock that
we may issue. The terms of any series of the preferred stock will be described
in the prospectus supplement or term sheet relating to the preferred stock being
offered thereby. The description set forth below and in any prospectus
supplement or term sheet does not purport to be complete and is subject to, and
qualified in its entirety by reference to, our Amended and Restated Certificate
of Incorporation (the "Certificate of Incorporation"), which is filed as an
exhibit to this registration statement and the Certificate of Designations (the
"Certificate of Designations") relating to each particular series of the
preferred stock, which will be filed with the Securities and Exchange Commission
at or prior to the time of sale of such preferred stock.
Pursuant to the Certificate of Incorporation, we are authorized to issue up
to 5,000,000 shares of undesignated preferred stock, par value $0.001 per share.
Our board of directors has the authority, without approval of our stockholders,
to issue all of the shares of preferred stock which are currently authorized in
one or more series and to fix the number of shares and the rights, preferences,
privileges, qualifications, restrictions and limitations of each series. Because
our 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 Bolder. In connection with our Shareholder Rights Plan, we are
obligated to issue shares of Series B Junior Participating Preferred Stock if
the shareholder rights become exercisable.
In addition, as described under "Description of Depositary Shares," we may
offer depositary shares evidenced by depositary receipts, each representing a
fraction (to be specified in the prospectus supplement or term sheet relating to
the depositary shares offered thereby) of a share of the particular series of
preferred stock issued and deposited with a depositary, in lieu of offering full
shares of such series of preferred stock.
The preferred stock will have the dividend, liquidation, redemption, voting
and conversion or exchange rights specified in the prospectus supplement or term
sheet relating to the particular series of preferred stock offered thereby. In
addition, the applicable prospectus supplement or term sheet will describe the
other terms of the preferred stock, including, where applicable, the following:
o the designation, stated value and liquidation preference of such
preferred stock and the number of shares offered;
o the offering price;
o the dividend rate (or method of calculation), the dividend periods,
the date on which dividends shall be payable and whether such
dividends shall be cumulative or noncumulative and, if cumulative, the
dates from which dividends shall commence to cumulate;
o any redemption or sinking fund provisions;
o any conversion or exchange provisions;
o voting rights, if any;
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<PAGE> 24
o to the extent permitted by applicable law, whether such preferred
stock will be issued in certificated or book-entry form;
o whether such preferred stock will be listed on a national securities
exchange or the Nasdaq Stock Market;
o information with respect to book-entry procedures, if any; and
o any additional rights, preferences, privileges, limitations and
restrictions of such preferred stock (which may not be inconsistent
with the provisions of the Certificate of Incorporation or the
Certificate of Designations establishing such series of preferred
stock).
The preferred stock will be, when issued against payment therefor, fully
paid and nonassessable. Holders thereof will have no preemptive rights to
subscribe for any additional securities that we may issue. Unless otherwise
specified in the applicable prospectus supplement or term sheet, the shares of
each series of preferred stock will rank on a parity with all other outstanding
series of preferred stock issued by us as to payment of dividends (except with
respect to cumulation thereof) and as to the distribution of assets upon our
liquidation, dissolution, or winding up. Each series of preferred stock will
rank prior to the common stock, and any other capital stock of ours that is
expressly made junior to such series of preferred stock.
OUTSTANDING PREFERRED STOCK
The Series A Preferred Stock constitutes a single series of our preferred
stock. As of August 18, 1999, 336,200 shares of the Series A Preferred Stock are
outstanding. 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
Bolder to redeem or retire such shares except as described below. Any Series A
Preferred Stock converted, redeemed or otherwise acquired by us will, upon
cancellation of such shares, have the status of authorized but unissued
preferred stock subject to issuance by our board of directors as shares of
preferred stock of any one or more other series but not as shares of Series A
Preferred Stock.
The material rights, powers, preferences and limitations of the Series A
Preferred Stock are set forth below:
o Dividends. Holders of the Series A Preferred Stock are each entitled
to receive (and we are required to pay), when, as and if declared by
our board of directors, out of the funds of Bolder 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 our 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. If
dividends are paid in cash it could require us to pay $1,344,000
annually. If dividends are paid in common stock it will be dilutive to
the holders of common stock.
o 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 certain adjustments.
o Liquidation Rights. In the event of any liquidation, dissolution or
winding up of Bolder, whether voluntary or involuntary, the holders of
shares of Series A Preferred Stock are each entitled to receive out of
assets of Bolder available for distribution to stockholders, whether
from capital surplus or earnings, before any distribution of assets is
made to holders of common stock and of any other class of stock of
Bolder 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
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<PAGE> 25
case, accrued and unpaid dividends.
o Redemption Rights. Under certain circumstances, the shares of Series A
Preferred Stock are redeemable at our option, 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
Redemption Price may be paid in shares of common stock or cash, or in
a combination of common stock and cash, at our option.
o Redemption at Option of Holder upon a Fundamental Change. If a
Fundamental Change (as defined in the Certificate of Designation of
the Series A Preferred Stock, a copy of which has previously been
filed with the Securities and Exchange Commission) occurs, each holder
of Series A Preferred Stock shall have the right, at the holder's
option, to require us 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 selected
by us that is not less than 10 nor more than 20 days after the Final
Surrender Date (as defined in the Series A Certificate of
Designation), at a price per share equal to the Redemption Price. We
may, at our option, pay all or any portion of the Redemption Price
upon a Fundamental Change in shares of our common stock or any
successor corporation.
o 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. If the Series A Preferred Stock has not been
redeemed prior to October 8, 2003, our board of directors 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 our board of directors 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.
DESCRIPTION OF DEBT SECURITIES
Debt securities will be issued pursuant to an Indenture to be entered into
between Bolder and a qualified trustee to be specified in an applicable
prospectus supplement or term sheet (the "Trustee").
The Indenture will fix the terms of such debt securities, including:
o the aggregate principal amount of such debt securities and whether
there is any limit upon the aggregate principal amount of such debt
securities that may be subsequently issued;
o the date on which such debt securities will mature;
o the principal amount payable with respect to such debt securities
whether at maturity or upon earlier acceleration, and whether such
principal amount will be determined with reference to an index,
formula or other method;
o the rate or rates per annum (which may be fixed or variable) at which
such debt securities will bear interest, if any;
o the dates on which such interest, if any, will be payable;
o the provisions for redemption of such debt securities, if any, the
redemption price and any remarketing arrangements relating thereto;
o the sinking fund requirements, if any, with respect to such debt
securities;
o whether such debt securities are denominated or provide for payment in
United States dollars or a
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<PAGE> 26
foreign currency or units of two or more of such foreign currencies;
o the form (registered or bearer or both) in which such debt securities
may be issued and any restrictions applicable to the exchange of one
form for another and to the offer, sale and delivery of such debt
securities in either form;
o whether and under what circumstances we must pay additional amounts in
respect of such debt securities held by a person who is not a U.S.
person (as defined in the prospectus supplement or term sheet, as
applicable) in respect of specified taxes, assessments or other
governmental charges and whether we have the option to redeem the
affected debt securities rather than pay such additional amounts;
o whether such debt securities are to be issued in global form;
o the title of the debt securities and the series of which such debt
securities shall be a part;
o the denominations of such debt securities;
o whether, and the terms and conditions relating to when, we may satisfy
certain of our obligations with respect to such debt securities with
regard to payment upon maturity, or any redemption or required
repurchase or in connection with any exchange provisions by delivering
to the holders thereof securities or a combination of cash, other
securities and/or property;
o the terms of the debt securities with respect to the Events of Default
set forth in the Indenture;
o the terms, if any, upon which the debt securities may be convertible
into our common stock, preferred stock or depository shares and the
terms and conditions upon which such conversion will be effected,
including the initial conversion price or rate, and the conversion
period;
o whether, and the terms and conditions relating to when, the debt
securities may be transferred separately from warrants when such debt
securities and warrants are issued together; and
o any other terms of the debt securities.
Reference is made to the prospectus supplement for the terms of the debt
securities being offered thereby, including whether such debt securities are
senior debt securities or subordinated debt securities. We may deliver to
purchasers of securities a term sheet instead of a prospectus supplement. This
prospectus may be delivered prior to or concurrently with a term sheet.
Prospective purchasers of debt securities should be aware that special U.S.
Federal income tax, accounting and other considerations may be applicable to
instruments such as debt securities. The prospectus supplement or term sheet
relating to any issue of debt securities will describe any such considerations.
The debt securities will be issued, to the extent provided in the
prospectus supplement or term sheet, in fully registered form without coupons,
and/or in bearer form with or without coupons, and in denominations set forth in
the prospectus supplement or term sheet. No service charge will be made for any
registration of transfer of registered debt securities or exchange of debt
securities, but we may require payment of a sum sufficient to cover any tax or
other governmental charges that may be imposed in connection therewith. The
Indenture will provide that debt securities issued thereunder may be issued in
global form. If any series of debt securities is issuable in global form, the
applicable prospectus supplement or term sheet will describe the circumstances,
if any, under which beneficial owners of any such global debt securities may
exchange such interests for debt securities of such series and of like tenor and
principal amount in any authorized form and denomination. Principal and any
premium, additional amounts, and interest on, a global debt security will be
payable or deliverable in the manner described in the applicable prospectus
supplement or term sheet.
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<PAGE> 27
DESCRIPTION OF DEPOSITARY SHARES
We may issue receipts for depositary shares, each of which will represent a
fraction of a share of preferred stock. Shares of preferred stock of each class
or series represented by depositary shares will be deposited under deposit
agreements to be entered into among Bolder, a bank or trust company, as
depository, and the holders from time to time of the depositary receipts. A copy
of the form of deposit agreement, including the form of certificates
representing the depositary receipts, will be filed as an exhibit to this
registration statement prior to the issuance of any depositary shares.
The depositary shares are to be evidenced by depositary receipts issued
pursuant to the applicable deposit agreement. Immediately following our issuance
and delivery of the preferred stock to the depositary, we will cause the
depositary to issue the depositary receipts on our behalf. Subject to the terms
of the applicable deposit agreement, each holder of a depositary receipt will be
entitled, in proportion to the fraction of a share of preferred stock
represented by such depositary share, to all the rights and preferences of the
preferred stock represented thereby (including dividend, voting, conversion,
redemption and liquidation rights), all as will be set forth in the prospectus
supplement or term sheet relating to the depositary receipts offered thereby.
The depositary shares will have the dividend, liquidation, redemption,
voting and conversion or exchange rights specified in the applicable prospectus
supplement or term sheet. The applicable prospectus supplement or term sheet
will also describe the other terms of depositary shares offered thereby, the
deposit agreement relating to such depositary shares and the depositary receipt
certificates representing such depositary shares, including the following:
o the designation, stated value and liquidation preference of such
depositary shares and the number of shares offered;
o the offering price or prices;
o the dividend rate or rates (or method of calculation), the dividend
periods, the dates on which dividends shall be payable and whether
such dividends shall be cumulative or noncumulative and, if
cumulative, the dates from which dividends shall commence to cumulate;
o any redemption or sinking fund provisions;
o any conversion or exchange provisions;
o any material risk factors relating to such depositary shares;
o the identity of the depositary; and
o any other terms of such depositary shares.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of debt securities, preferred stock,
common stock, depository shares or units of any combination of the foregoing
securities. Each series of warrants will be issued under a warrant agreement to
be entered into between us and a bank or trust company, as warrant agent, all as
set forth in the prospectus supplement or term sheet relating to the warrants
offered thereby. A copy of the form of warrant agreement, including the form of
warrant certificates representing the warrants reflecting the provisions to be
included in the warrant agreements that will be entered into with respect to
particular offerings of warrants, will be filed as an exhibit to this
registration statement prior to the issuance of any warrants.
The applicable prospectus supplement or term sheet will describe the terms
of the warrants offered thereby, the warrant agreement relating to such warrants
and the warrant certificates, including the following:
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<PAGE> 28
o the offering price or prices;
o the aggregate amount of securities that may be purchased upon exercise
of such warrants and minimum number of warrants that are exercisable;
o the number of securities, if any, with which such warrants are being
offered and the number of such warrants being offered with each
security;
o the date on and after which such warrants and the related securities,
if any, will be transferable separately;
o the amount of securities purchasable upon exercise of each warrant and
the price at which the securities may be purchased upon such exercise,
and events or conditions under which the amount of securities may be
subject to adjustment;
o the date on which the right to exercise such warrants shall commence
and the date on which such right shall expire;
o the circumstances, if any, which will cause the warrants to be deemed
to be automatically exercised;
o any material risk factors relating to such warrants;
o the identity of the warrant agent; and
o any other terms of such warrants (which shall not be inconsistent with
the provisions of the warrant agreement).
Warrant certificates may be exchanged for new warrant certificates of
different denominations, may (if in registered form) be presented for
registration of transfer, and may be exercised at the corporate trust office of
the warrant agent or any other office indicated in the applicable prospectus
supplement or term sheet. Prior to the exercise of any warrants, holders of such
warrants will not have any rights of holders of the securities purchasable upon
such exercise, including the right to receive payments of dividends, if any, on
the securities purchasable upon such exercise or the right to vote such
underlying securities.
Prospective purchasers of warrants should be aware that special U.S.
federal income tax, accounting and other considerations may be applicable to
instruments such as warrants. The prospectus supplement or term sheet relating
to any issue of warrants will describe such considerations.
PLAN OF DISTRIBUTION
We may sell the securities to or through underwriters, through or to
dealers, directly to one or more purchasers, or through agents. The prospectus
supplement or term sheet with respect to the securities offered thereby will set
forth the terms of the offering of the securities, including the name or names
of any underwriters, dealers or agents, the purchase price of the securities and
the proceeds to us from such sale, any delayed delivery arrangements, any
underwriting discounts and other items constituting underwriters' compensation,
the initial public offering price, any discounts or concessions allowed or
re-allowed or paid to dealers, and any securities exchanges on which the
securities may be listed.
If underwriters are used in the sale, the securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices, at negotiated prices or at varying
prices determined at the time of sale. The securities may be offered to the
public either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more firms acting as underwriters or
agents. The underwriter or underwriters with respect to a particular
underwritten offering of securities will be named in the prospectus supplement
or term sheet relating to such
25
<PAGE> 29
offering, and if an underwriting syndicate is used, the managing underwriter or
underwriters will be set forth on the cover of such prospectus supplement or
term sheet. Unless otherwise set forth in the prospectus supplement or term
sheet relating thereto, the obligations of the underwriters or agents to
purchase the securities will be subject to conditions precedent and the
underwriters will be obligated to purchase all the securities if any are
purchased. The initial public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from time to time.
If dealers are used in the sale of securities with respect to which this
prospectus is delivered, we will sell such securities to the dealers as
principals. The dealers may then resell such securities to the public at varying
prices to be determined by such dealers at the time of resale. The names of the
dealers and the terms of the transaction will be set forth in the prospectus
supplement or term sheet relating thereto.
We may sell securities directly or through agents from time to time at
fixed prices, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices, at negotiated prices or at varying prices
determined at the time of sale. Any agent involved in the offer or sale of the
securities with respect to which this prospectus is delivered will be named, and
any commissions payable by us to such agent will be set forth, in the prospectus
supplement or term sheet relating thereto. Unless otherwise indicated in the
prospectus supplement or term sheet, any such agent will be acting on a best
efforts basis for the period of its appointment.
In connection with the sale of the securities, underwriters or agents may
receive compensation from us or from purchasers of securities for whom they may
act as agents in the form of discounts, concessions, or commissions.
Underwriters, agents, and dealers participating in the distribution of
securities may be deemed to be underwriters, and any discounts or commissions
received by them from us and any profit on the resale of the securities by them
may be deemed to be underwriting discounts or commissions under the Securities
Act of 1933, as amended.
If so indicated in the prospectus supplement or term sheet, we will
authorize agents, underwriters, or dealers to solicit offers from certain types
of institutions to purchase securities from us at the public offering price set
forth in the prospectus supplement or term sheet pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject only to those conditions set forth in the
prospectus supplement or term sheet, and the prospectus supplement or term sheet
will set forth the commission payable for solicitation of such contracts.
Agents, dealers, and underwriters may be entitled under agreements entered
into with us to indemnification by us against certain civil liabilities,
including liabilities under the Securities Act of 1933, as amended, or to
contribution with respect to payments that such agents, dealers, or underwriters
may be required to make with respect thereto. Agents, dealers, and underwriters
may be customers of, engage in transactions with, or perform services for us in
the ordinary course of business.
We may also use this prospectus to directly solicit offers to purchase
securities. Except as set forth in the applicable prospectus supplement or term
sheet, none of our directors, officers, or employees will solicit or receive a
commission in connection with those direct sales. Those persons may respond to
inquiries by potential purchasers and perform ministerial and clerical work in
connection with direct sales.
The securities may or may not be listed on a national securities exchange
or the Nasdaq Stock Market.
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<PAGE> 30
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
BOLDER Technologies Corporation by Cooley Godward LLP, Boulder, Colorado.
EXPERTS
The financial statements of BOLDER Technologies Corporation
incorporated by reference in this prospectus 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.
27
<PAGE> 31
NO DEALER, SALES PERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS,
AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY BOLDER. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURITY
OTHER THAN THE NOTES OR CONVERSION SHARES OFFERED HEREBY, NOR DOES IT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE NOTES OR
CONVERSION SHARES TO ANYONE IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM,
IT WOULD BE UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES,
CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN OUR AFFAIRS SINCE THE
DATE HEREOF OR IMPLY THAT INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE.
[LOGO]
BOLDER TECHNOLOGIES CORPORATION
COMMON STOCK, PREFERRED STOCK, DEBT
SECURITIES, DEPOSITORY SHARES AND WARRANTS
--------------------
PROSPECTUS
--------------------
, 1999
<PAGE> 32
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses, other than the underwriting
discounts and commissions, payable by us in connection with the sale of the
securities being registered. All the amounts shown are estimates except for the
registration fee.
<TABLE>
<S> <C>
Registration fee................................................ $ 8,340
Printing and engraving expenses................................. 10,000
Legal fees and expenses......................................... 15,000
Accounting Fees and Expenses.................................... 5,000
Miscellaneous................................................... 5,000
---------
Total........................................................ $ 43,340
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Under Section 145 of the Delaware General Corporation Law, we have broad
powers to indemnify our Directors and officers against liabilities they may
incur in such capacities, including liabilities under the Securities Act of
1933, as amended.
Our Bylaws provide that we will indemnify our directors and executive
officers and may indemnify our other officers, employees and agents to the
fullest extent permitted by Delaware law. We are also empowered under our Bylaws
to enter into indemnification agreements with our directors and officers and to
purchase insurance on behalf of any person we are required or permitted to
indemnify.
In addition, our Amended and Restated Certificate of Incorporation provides
that to the fullest extent permitted by Delaware law, our directors will not be
liable for monetary damages for breach of the directors' fiduciary duty of care
to Bolder and our stockholders. This provision in the Amended and 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 of
directors will continue to be subject to liability for breach of the director's
duty of loyalty to Bolder, 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 Bolder 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.
We have entered into indemnification agreements with each of our directors
and officers under which we have indemnified each of them against expenses and
losses incurred for claims brought against them by reason of their being a
director or officer of Bolder, and we maintain directors' and officers'
liability insurance.
There is no pending litigation or proceeding involving a director or
officer of Bolder as to which indemnification is being sought, nor are we 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 Bolder as to which indemnification is being sought nor
are we aware of any threatened litigation that may result in claims for
indemnification by any officer or director.
We have an insurance policy covering our officers and directors with
respect to certain liabilities, including liabilities arising under the
Securities Act of 1933, as amended, or otherwise.
II-1
<PAGE> 33
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
<S> <C>
1.1# Form of Underwriting Agreement
4.1* Amended and Restated Certificate of Incorporation of Bolder
4.2** Certificate of Designation of the Series A Preferred Stock of Bolder
4.3** Amendment to Certificate of Designation of the Series A Preferred Stock of Bolder
4.4*** Certificate of Designation of the Series B Junior Participating Preferred Stock of
Bolder
4.5* Amended and Restated Bylaws of Bolder
4.6** Amendment to the Amended and Restated Bylaws of Bolder
4.7** Specimen stock certificate representing shares of Series A Preferred Stock of Bolder
4.8* Specimen stock certificate representing shares of common stock of Bolder
4.9*** Rights Agreement between Bolder and American Stock Transfer & Trust Company, dated
January 23, 1998
4.10*** Form of Rights Certificate
4.11# Indenture
4.12# Form of Note
4.13# Certificate of Designations for preferred stock
4.14# Specimen stock certificate representing shares of preferred stock
4.15# Depository Agreement
4.16# Specimen depository receipt representing depository shares
4.17# Warrant Agreement
4.18# Form of Warrant
5.1# Opinion of Cooley Godward LLP
12.1 Statement regarding computation of deficiency of earnings
to fixed charges and deficiency of earnings to combined
fixed charges and preferred stock dividends
23.1 Consent of Arthur Anderson LLP
23.2# Consent of Cooley Godward LLP (included in Exhibit 5.1)
24.1 Power of Attorney (see signature page hereto)
25.1# Statement of eligibility of trustee
</TABLE>
II-2
<PAGE> 34
----------------
# To be filed by amendment.
* Previously filed as an exhibit to our Registration Statement on Form
SB-2 (Registration No. 333-2500-D) and incorporated herein by
reference.
** Previously filed as an exhibit to our Registration Statement on Form
S-3 (Registration No. 333-41625) and incorporated herein by reference.
*** Previously filed as an exhibit to our January 23, 1998 Form 8-K and
incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) Bolder hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section 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 Securities and Exchange Commission
by Bolder 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) That, for the purpose of determining any liability under the
Securities 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 registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(b) Bolder hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of Bolder's annual report
pursuant to Section 13(a) or 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.
(c) Insofar as indemnification for liabilities under the Securities Act of
1933 may be permitted to directors, officers, and controlling persons of Bolder
pursuant to the foregoing provisions, or otherwise, Bolder has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by Bolder of expenses incurred or paid by a
director, officer or controlling person of Bolder in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
II-3
<PAGE> 35
controlling person in connection with the securities being registered, Bolder
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriated jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
(d) Bolder hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, 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 Bolder pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, 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.
(e) Bolder hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
section 310 of the Trust Indenture Act ("Act") in accordance with the rules and
regulations prescribed by the Commission under section 305(b)(2) of the Act.
II-4
<PAGE> 36
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Bolder
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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Golden, State of Colorado, on August 31, 1999.
BOLDER Technologies Corporation
By /s/ DANIEL S. LANKFORD
----------------------------------
Daniel S. Lankford
Chief Executive Officer, President
and Chairman of the Board
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Daniel S. Lankford and Joseph F.
Fojatsek, his true and lawful attorney-in-fact and agent, each acting alone,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement, and to
sign any registration statement for the same offering covered by this
registration statement that is to be effective upon filing pursuant to Rule
462(b) and all post-effective amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ DANIEL S. LANKFORD
- ----------------------------------- Chief Executive Officer, President and Chairman August 31, 1999
Daniel S. Lankford of the Board of Directors
(Principal Executive Officer)
/s/ JOSEPH F. FOJTASEK
- ----------------------------------- Chief Financial Officer and Vice President of August 31, 1999
Joseph F. Fojtasek Finance and Administration, Treasurer, and
Secretary (Principal Financial and Accounting
Officer)
/s/ WILMER R. BOTTOMS
- ----------------------------------- Director August 31, 1999
Wilmer R. Bottoms
/s/ WILLIAM D. CONNOR
- ----------------------------------- Director August 31, 1999
William D. Connor
/s/ DONOVAN B. HICKS
- ----------------------------------- Director August 31, 1999
Donovan B. Hicks
/s/ DAVID L. RIEGEL
- ----------------------------------- Director August 31, 1999
David L. Riegel
/s/ CARL S. STUTTS
- ----------------------------------- Director August 31, 1999
Carl S. Stutts
/s/ ROGER F. WARREN
- ----------------------------------- Director August 31, 1999
Roger F. Warren
</TABLE>
<PAGE> 37
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------
<S> <C>
1.1# Form of Underwriting Agreement
4.1* Amended and Restated Certificate of Incorporation of Bolder
4.2** Certificate of Designation of the Series A Preferred Stock of Bolder
4.3** Amendment to Certificate of Designation of the Series A Preferred Stock of Bolder
4.4*** Certificate of Designation of the Series B Junior Participating Preferred Stock of
Bolder
4.5* Amended and Restated Bylaws of Bolder
4.6** Amendment to the Amended and Restated Bylaws of Bolder
4.7** Specimen stock certificate representing shares of Series A Preferred Stock of Bolder
4.8* Specimen stock certificate representing shares of common stock of Bolder
4.9*** Rights Agreement between Bolder and American Stock Transfer & Trust Company, dated
January 23, 1998
4.10*** Form of Rights Certificate
4.11# Indenture
4.12# Form of Note
4.13# Certificate of Designations for preferred stock
4.14# Specimen stock certificate representing shares of preferred stock
4.15# Depository Agreement
4.16# Specimen depository receipt representing depository shares
4.17# Warrant Agreement
4.18# Form of Warrant
5.1# Opinion of Cooley Godward LLP
12.1 Statement regarding computation of deficiency of earnings
to fixed charges and deficiency of earnings to combined
fixed charges and preferred stock dividends
23.1 Consent of Arthur Anderson LLP
23.2# Consent of Cooley Godward LLP (included in Exhibit 5.1)
24.1 Power of Attorney (see signature page hereto)
25.1# Statement of eligibility of trustee
</TABLE>
- --------------------
# To be filed by amendment.
* Previously filed as an exhibit to our Registration Statement on Form
SB-2 (Registration No. 333-2500-D) and incorporated herein by
reference.
** Previously filed as an exhibit to our Registration Statement on Form
S-3 (Registration No. 333-41625) and incorporated herein by reference.
*** Previously filed as an exhibit to our January 23, 1998 Form 8-K and
incorporated herein by reference.
<PAGE> 1
EXHIBIT 12.1
STATEMENT REGARDING COMPUTATION OF DEFICIENCY
OF EARNINGS TO FIXED CHARGES AND DEFICIENCY OF EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
BOLDER Technologies Corporation's deficiency of earnings to fixed charges
and deficiency of earnings to combined fixed charges and preferred stock
dividends were computed as set forth below.
<TABLE>
<CAPTION>
Six Months
Ended
June 30, Year Ended December 31,
----------- -----------------------------------------------------------------------
1999 1998 1997 1996 1995 1994
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Interest, including
amounts capitalized $ 679,754 $ 1,346,511 $ 633,625 $ 54,277 $ 72,633 $ 32,092
Amortization of debt
discount (premium and
expenses, including
amounts capitalized) -- -- -- -- -- --
Interest factor in rental
expense $ 173,384 $ 299,727 $ 313,680 $ 67,090 $ 63,336 $ 39,952
----------- ----------- ----------- ----------- ----------- -----------
Fixed charges $ 853,138 $ 1,646,238 $ 947,305 $ 121,367 $ 135,969 $ 72,044
Loss from continuing
operations $ 7,442,966 $ 9,943,969 $ 8,749,424 $ 4,160,090 $ 3,341,984 $ 3,316,224
Add back losses from
equity-method
investments -- -- -- $ (669,025) $ (164,136) --
----------- ----------- ----------- ----------- ----------- -----------
Deficiency of earnings to
fixed charges $ 8,296,104 $ 11,590,207 $ 9,696,729 $ 3,612,432 $ 3,313,817 $ 3,388,268
=========== =========== =========== =========== =========== ===========
Preferred stock dividends $ 756,450 $ 1,512,900 $ 352,320 -- -- --
Accretion on preferred
stock $ 107,538 $ 214,217 $ 50,000 -- -- --
----------- ----------- ----------- ----------- ----------- -----------
Deficiency of earnings to
Fixed charges and
preferred dividends $ 9,160,092 $13,317,324 $10,099,049 $ 3,612,432 $ 3,313,817 $ 3,388,268
=========== =========== =========== =========== =========== ===========
</TABLE>
<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 dated August 31, 1999 of
our report dated February 3, 1999, included in BOLDER Technologies Corporation's
Form 10-K for the year ended December 31, 1998 and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
Denver, Colorado,
August 30, 1999.
