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As filed with the Securities and Exchange Commission on August 16, 2000
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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ROGER F. WARREN
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 the only 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
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PRICE PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
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Debt securities(2) (3) (3) (3)
Preferred stock, par value $.001 (3) (3) (3)
Depositary shares representing (3) (3) (3)
preferred stock (4)
Warrants (3) (3) (3)
Common stock, par value $.001(5)(6) (3) (3) (3)
Totals $30,000,000(7) 100%(8) $30,000,000(7)(8) $7,920(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 (the "Act").
(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 Act.
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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 Act 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 16, 2000
[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 20.
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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, 2000
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TABLE OF CONTENTS
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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........................................................................................ 12
Ratio of Earnings to Fixed Charges and Ratio of Earnings
to Combined Fixed Charges and Preferred Stock Dividends.............................................. 12
The Securities......................................................................................... 13
Description of Common Stock............................................................................ 13
Description of Preferred Sock.......................................................................... 15
Description of Debt Securities......................................................................... 17
Description of Depository Shares....................................................................... 19
Description of Warrants................................................................................ 19
Plan of Distribution................................................................................... 20
Legal Matters.......................................................................................... 22
Experts................................................................................................ 22
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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. 20006.
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,
1999;
o Quarterly Report on Form 10-Q for the period ended March 31, 2000;
o Quarterly Report on Form 10-Q for the period ended June 30, 2000;
o Current Report on Form 8-K dated March 24, 2000;
o Definitive Proxy Statement filed April 28, 2000; and
2.
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o The description of common stock contained in our Registration
Statement on Form 8-A declared effective by the Commission on
April 29, 1996, including any amendment or reports filed for the
purpose of updating such description.
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."
3.
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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
We manufacture and market innovative rechargeable battery powered
products for the consumer and other aftermarkets based on our patented thin
metal film ("TMF(R)") technology. Our high power density batteries recharge very
rapidly, possess no memory effect, provide superior performance in cold
temperatures and are much smaller in size than conventional lead acid batteries.
On a specific power (watts per kilogram) basis, our TMF(R) cells perform at 8 to
10 times the level of traditional lead acid batteries that currently provide
power for automobiles, trucks and boats. We are presently manufacturing TMF(R)
cells at a rate of 30,000 to 35,000 per week, and we intend to continuously
enhance our manufacturing processes and capability to meet anticipated demand.
Our high power density TMF(R) cells are designed to quickly and
efficiently deliver large bursts of power. This contrasts with high energy
density batteries which are designed to provide low amounts of power over an
extended period of time for applications such as laptop computers, cellular
telephones and other electronic devices. We believe the performance attributes
of TMF(R) batteries make them ideal for numerous applications, such as engine
starting of all types (both jump starting and primary starting), as well as
other applications such as standby power, industrial power quality maintenance,
hybrid electric vehicles and fuel cell applications.
We are developing products for engine starting applications in the
automobile, commercial truck, motorsports and marine markets. There are two
major categories of engine starting applications - jump starting and primary
starting.
o JUMP STARTING. We introduced our first commercial product,
SECURESTART(TM), in September 1999. SECURESTART(TM) is an easy to
use jump-starter that utilizes six of our 1 Ah (Ampere-hour) cells
and built-in cables to quickly jump-start cars and trucks with
"dead" batteries. The SECURESTART(TM) instant engine starter is
now available through Wal-Mart, Sears, Target, Auto-Zone, Orchard
Supply Hardware, The Tool Warehouse, Home Hardware Canada, and
G.I. Joe Auto and Sporting Goods stores, as well as several
catalogs including SkyMall, Herringtons and Sears. In April 2000,
we commenced shipments of our marine version of the
SECURESTART(TM) jump-starter, which includes corrosion proofing of
the control electronics, cables and tin-plated clamp jaws, making
it ideal for boating applications. The marine product is currently
being sold through West Marine and Barclay Marine Distributor
Corporation. In addition, we launched an e-commerce website to
sell SECURESTART(TM) products directly to consumers.
o PRIMARY STARTING. We plan to introduce primary starting batteries
for motor boats, commercial trucks, and automobiles, beginning in
the first quarter of 2001 with a marine dedicated starting battery
that attaches to the side of the existing battery in a boat and
permanently provides the starting function, even if the existing
energy battery is discharged. This product will not only provide
the boat owner with a "guaranteed start" but also extends the life
of the existing battery or batteries as they no longer need to
perform the starting function, which is the highest drain on the
battery. Subsequent to 2001, we expect to launch a dedicated truck
starting battery and an auto aftermarket replacement battery.
These new products will be based on our TMF(R) technology and will
be designed to start a car or truck even if the traditional lead
acid batteries have been fully discharged. The marine dedicated
starting battery will incorporate six of our 1 Ah cells, while the
truck and automobile dedicated starting batteries will incorporate
six larger cells, probably in the 3 Ah to 5 Ah range.
4.
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Due to the increasing electrical demands of the modern automobile
over the course of the next several years, we believe that the
world's manufacturers will replace the current 12-volt battery
system in automobiles with a 36-volt battery system. Once adopted,
the new system will increase electrical power, boost fuel
efficiency and allow manufacturers to save significant weight from
the reduction of copper wire used in each vehicle. However,
conventional car batteries will weigh too much and take up too
much room to be easily implemented. Using our TMF(R) technology,
manufacturers could save approximately 20% to 50% of the weight
and 20% to 60% of the volume of conventional car batteries.
According to Autoweek magazine, BMW will be the first OEM
(original equipment manufacturer) to release a 36-volt battery
system car when it does so in the second half of 2002, in its
flagship 7 series 2003 model. We believe several other OEMs will
convert to 36-volt batteries over the course of the next several
years and that, ultimately, all cars will convert to 36-volt
batteries.
We granted Johnson Controls, Inc. ("JCI") a royalty-bearing
worldwide exclusive license with respect to the automotive primary
starting market. JCI is a major supplier of batteries to the
automobile industry and has announced plans to offer engine
starting batteries, based upon our TMF(R) technology, for 36-volt
systems. We will earn a royalty from JCI based on its sales of
primary starting batteries that use TMF(R) technology.
Additionally, we plan to become a second supplier to the OEM
market by introducing our own line of primary starting batteries
after JCI's exclusivity ends in July 2001. JCI currently owns
approximately 3.3% of our outstanding shares of common stock.
o OTHER APPLICATIONS. In addition to engine starting, our batteries
have features that are effective in applications such as standby
power, industrial power quality maintenance, hybrid electric
vehicles and fuel cell applications.
o Because of their very fast response time and quick
discharge capability, TMF(R) batteries are an excellent
backup to provide instantaneous bridging power for
electronics and for uninterruptible power supply.
o TMF(R) batteries can be used for industrial power quality
maintenance, eliminating voltage sags by instantaneously
filling in the required power.
o Hybrid electric vehicles typically perform poorly when
high power is required, i.e., for rapid acceleration or
for hill climbing. TMF(R) batteries are a natural
complement for this application.
o TMF(R) batteries can be used as a supplement to fuel cell
technology for both stationary and vehicular applications.
For stationary applications, TMF(R) batteries function as
a standby power source to provide instantaneous power
bridging for fuel cell generators or to maintain power
quality. For vehicular applications, TMF(R) batteries
provide supplemental power for acceleration and hill
climbing.
We believe there are barriers to entry for potential competitors
interested in developing technology similar to our TMF(R) technology.
o INTELLECTUAL PROPERTY PROTECTION. We hold 7 registered and 12
pending United States patents and 6 registered and 17 pending
foreign patents covering a number of inventions relating to
various aspects of our TMF(R) technology. In addition, unfair
competition and trade secrets laws protect certain aspects of our
intellectual property and proprietary rights. We believe our
issued and pending patents and other intellectual property rights
provide significant protection for our proprietary designs and
processes.
o TECHNOLOGY AND MANUFACTURING EXPERTISE. We have invested a
significant amount of time and capital in developing our TMF(R)
technology and the associated manufacturing process. Through the
use of sophisticated process controls, we have collected large
amounts of data regarding the characteristics and performance of
the TMF(R) batteries we have produced to date. We have utilized
5.
<PAGE> 8
this information to substantially refine our TMF(R) battery
technology and manufacturing process. Based on our experience, we
believe it would take a significant amount of time and a
substantial capital investment to develop a competing high power
density battery technology.
o EXPERIENCED MANAGEMENT AND KEY EMPLOYEES. Our executive officers
and key employees have extensive experience in the battery
industry and, in particular, in designing, developing and
producing small format, spiral-wound batteries, such as our TMF(R)
batteries. We believe this specialized expertise gives us a
competitive advantage.
Our objective is to become a major supplier of high power density
rechargeable batteries and innovative battery-powered products. Our strategies
for achieving this objective include:
o developing products that exploit the unique capabilities of
TMF(R)batteries;
o creating brand recognition for our trademarks, including
SECURESTART(TM) and TMF(R);
o using precision process control and advanced analytical tools for
improved performance and reduced manufacturing costs; and
o protecting and enhancing our proprietary technology base.
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.
6.
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RISK FACTORS
An investment in our securities involves a high degree of risk. You
should carefully consider the following "Risk Factors" before you decide to buy
our securities. The risks discussed below, as well as other risks not presently
known to us or that we currently deem immaterial, may have a material adverse
effect on our business, results of operations and financial condition.
WE 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(R) batteries. We
commenced commercial production of our TMF(R) batteries in October 1998. We will
encounter the risks and difficultieS frequently encountered by companies that
have recently made a transition from research and development activities to
commercial production, including those set forth below.
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 earned substantial revenues from
the sale of our products. As of June 30, 2000, we had an accumulated deficit of
$62.8 million. We do not expect to be profitable prior to the second half of
2001, at the earliest. Prior to achieving profitability, we expect to incur
significant losses as we continue to incur substantial sales and marketing,
research and development and general and administrative expenses. No assurance
can be given that we will ever be profitable or, if we do achieve profitability,
that we will sustain or increase profitability.
MARKET ACCEPTANCE OF OUR TMF(R) BATTERIES AND END-USER PRODUCTS IS UNCERTAIN.
The markets for our products are unproven, and no assurance can be
given that market acceptance will be achieved. Our success will depend, in large
part, on our ability to meet end-user and OEM customer requirements by
developing and introducing, on a timely basis, new products and enhanced or
modified versions of our existing products. We cannot assure that we will be
able to do so. We may have large inventory write downs if our products do not
sell at expected prices, or in expected quantities.
WE HAVE LIMITED EXPERIENCE IN MARKETING OUR PRODUCTS AND WE ARE DEPENDENT ON
OTHERS TO DO SO.
We have limited experience in marketing our products and will be
dependent on outside sales representatives, distributors, resellers and retail
operators to do so. We may not be able to obtain additional or retain any
present or future sales representatives, distributors, resellers or retailers
needed to develop material retail sales. It is likely that any agreements we may
enter into 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 other persons will not be within our control and may carry products
that are competitive with our products, not give a high priority to the
marketing of our products, not continue to carry our products or not adequately
market our products.
WE 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 adversely affect our operating results. We have not yet
operated our initial automated line at full capacity or over an extended period
of time.
In order to become profitable, we must continue to increase the
production yield of our existing manufacturing line and successfully fabricate,
install and qualify additional automated production equipment that will produce
at acceptable yields. In addition, because we are in the early stages of
commercial production, we have not yet produced batteries in quantities
sufficient to absorb our fixed manufacturing costs. We will continue to report
gross losses until we are able to produce batteries in quantities that allow us
to absorb these costs and generate gross profit.
7.
<PAGE> 10
Any fire or other calamity affecting the existing line or our facility
could have a material adverse effect on us because we have only one
manufacturing line and expect that any additional lines we build in the
foreseeable future will be located in our current building.
We will also 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.
WE MAY NOT BE ABLE TO OBTAIN ADDITIONAL CAPITAL TO FUND OUR OPERATIONS WHEN
NEEDED.
From our inception, we have financed our operations primarily through
private and public offerings of our equity securities. We have capital resources
to allow operation through at least December 2000. We will require substantial
capital resources in the future. We do not have any availability under our loan
agreement or other capital resources. Our inability to obtain required capital
resources when needed would have a material adverse effect on our business,
results of operations 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 increase our number of employees, significantly increase our manufacturing
capability and enhance our operating systems and practices. We cannot assure you
that we will be able to effectively do so or otherwise manage our future growth.
WE ARE DEPENDENT UPON EFFECTIVE STRATEGIC RELATIONSHIPS.
Our business strategy includes relying on a limited number of strategic
relationships for the commercialization of our products, assistance in the
design and development of our products and manufacturing and marketing
expertise. Our existing relationships may be inadequate to, and we may be unable
to enter into other relationships that will, achieve our objectives in these
areas. To the extent we enter into strategic partnerships, we may be required to
share revenues, contribute to expenses and grant to the other parties licenses
to manufacture, market or sell products based upon our TMF(R) technology, any of
which could adversely affect our operating results.
IF WE ARE UNSUCCESSFUL IN SELLING TO OEMS, OUR BUSINESS COULD BE HARMED.
Our business strategy includes selling our products to OEMs, and we are
investing resources to do so. No assurances can be given that we will be
successful in selling to OEMs. The ability of OEMs to successfully integrate our
products into their products and to successfully market those products is beyond
our control.
WE RELY ON THIRD PARTIES TO MANUFACTURE PARTS FOR AND ASSEMBLE OUR PRODUCTS.
We currently rely on third parties to manufacture parts for and
assemble our SECURESTART(TM) products. We may outsource additional manufacturing
and assembly work in the future. These third parties are not under our control,
and their failure to perform could have a material adverse effect on our
business, results of operations and financial condition.
WE ARE DEPENDENT ON OUR SUPPLIERS FOR RAW MATERIALS.
To date, we have used sole or limited source suppliers for certain key
raw materials used in our products. We have no long-term contracts or other
guaranteed supply arrangements for any of these materials. 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, results of operations and financial condition.
8.
<PAGE> 11
INTENSE COMPETITION EXISTS IN THE BATTERY AND ENGINE JUMP STARTING INDUSTRIES
AND WE EXPECT COMPETITION TO CONTINUE TO INTENSIFY.
Competition in the battery and engine jump starting industries is
intense and is expected to increase in the future. Our competitors range from
development stage companies to major domestic and international companies.
Many of our competitors have significant financial resources,
established market positions, longstanding relationships with OEMs and other
customers and significantly greater name recognition, technical, marketing,
sales, manufacturing, distribution and other resources than we do. We cannot
give assurance that we will be able to compete successfully with those
companies, including JCI, in the markets where JCI has a license from us, and
other competitors.
Prestone Products Corporation (a subsidiary of AlliedSignal
Corporation), Century Mfg. Co. ("Century," a subsidiary of Pentair, Inc.) and
others are marketing portable jump starters for automotive, marine and other
applications, some of which are priced materially lower than SECURESTART(TM),
and offer a variety of features. Some of these products, with a power inverter,
can also power computers and other small appliances. While we believe
SECURESTART(TM) is superior to these other products in several respects, no
assurance can be given that we will market SECURESTART(TM) successfully against
the products of these other companies.
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. If competing technologies that
outperform our batteries are developed and successfully introduced, our
business, operating results and financial condition may be materially adversely
affected.
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 cannot be certain that any of our issued patents will afford
meaningful protection against competitors with similar technology because the
status of patents involves complex legal and factual questions and the breadth
of claims issued is uncertain. Some foreign countries provide significantly less
patent protection than the United States. Moreover, we cannot be certain that
our pending applications will result in issued patents.
In addition to patent protection, we rely on the law of unfair
competition and trade secrets to protect our proprietary rights. 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 outcome could be uncertain. The unauthorized
misappropriation of our proprietary rights could have a material adverse effect
on our business, results of operations and financial condition.
WE ARE NOW, AND MAY IN THE FUTURE BE, SUBJECT TO CLAIMS ALLEGING INTELLECTUAL
PROPERTY INFRINGEMENT.
We are now, and may in the future 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 defend against alleged infringements, the proceedings could
be burdensome and expensive and could involve a high degree of risk.
In September 1999, Century filed a complaint against us in the United
Stated District Court for the District of Minnesota. Century manufactures a line
of portable power and jump starting products and held discussions with us in
1996 regarding the possible incorporation of our TMF(R) batteries into its
potential products. Century alleges that the concept of using a charging battery
to charge and prolong the shelf life of our TMF(R) cells in a jump starting
product is proprietary to Century and that, among other things, we have
misappropriated Century's trade secrets and
9.
<PAGE> 12
breached a confidentiality agreement in producing and manufacturing
SECURESTART(TM). The complaint seeks injunctive relief and unspecified damages.
In October 1999, the Federal District Court Judge hearing the case
denied Century's request for a preliminary injunction, stating that Century had
not shown either a probability of prevailing on the merits or irreparable
injury, both of which must be established to obtain a preliminary injunction.
This determination does not dispose of the case, which remains pending trial.
Century previously informed us that it had a United States patent
application pending in which certain claims covered the SECURESTART(TM) product.
In December 1999, the United States Patent Office issued the patent to Century.
Thereafter, Century filed a second complaint against us in the United States
District Court for the District of Minnesota. In its second complaint, Century
alleged that SECURESTART(TM) infringes the patent that was issued by the United
States Patent Office. Century's second complaint has been consolidated with the
first action, and now all of Century's claims are pending in the first action.
We have answered Century's complaint and asserted counterclaims for
Century's misappropriation of our own trade secrets and confidential
information. We believe that Century's claims are without merit, intend to
defend against them vigorously and intend to press forcefully our counterclaims.
WE MAY NOT BE ABLE TO SUCCESSFULLY OPERATE OUR BUSINESS IF WE LOSE KEY PERSONNEL
OR FAIL TO ATTRACT AND RETAIN HIGHLY SKILLED PERSONNEL.
We believe that our success will depend on the continued services of
our senior management team and other key personnel, as well as our ability to
attract and retain skilled personnel. The loss of any of our senior management
team or other key employees or our failure to attract and retain the necessary
scientific, manufacturing, sales and marketing personnel could have a material
adverse effect on our business, results of operations and financial condition.
ENVIRONMENTAL MATTERS MAY MATERIALLY ADVERSELY AFFECT US.
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. 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 CERCLA and OSHA, that
govern the storage, use and disposal of various chemicals used in and waste
materials produced by the manufacture of our TMF(R) batteries.
We may be unable to operate in conformity with applicable environmental
and safety laws and regulations. Changes in these laws or regulations may
require us to incur substantial capital or operating costs to achieve or
maintain compliance. Any failure by us to comply with safety laws and
regulations, including adequately controlling the discharge of our hazardous
materials and wastes, could have a material adverse effect on our business,
results of operations and financial condition.
OUR PRODUCTS LIABILITY INSURANCE MAY NOT BE SUFFICIENT TO COVER PRODUCTS
LIABILITY CLAIMS.
The sale of our products may expose us to products liability claims
from consumers. Although we maintain products liability insurance in amounts we
believe are commercially reasonable, we cannot be certain that insurance will be
adequate to cover any potential liability relating to one or more claims of
products liability, or that such insurance will be available at an acceptable
cost in the future.
In this regard, lead acid batteries, including our TMF(R) 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 and, when mixed with air, might
cause explosions. In addition, under such conditions,
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toxic gases or sulfuric acid spray may be released. Sulfuric acid can cause
burns and other severe injuries. Such occurrences or misuse of our products may
result in products liability claims against us.
CONTROL BY EXISTING STOCKHOLDERS MAY LIMIT YOUR ABILITY TO INFLUENCE THE OUTCOME
OF DIRECTOR ELECTIONS AND OTHER MATTERS REQUIRING STOCKHOLDER APPROVAL.
Approximately 38% of our outstanding stock is owned by three
institutional investors. These stockholders may be able to significantly
influence or control matters that require stockholder approval, including
electing directors and approving significant corporate transactions.
CERTAIN PROVISIONS IN OUR CORPORATE DOCUMENTS MAY DISCOURAGE OUR ACQUISITION BY
OTHERS AND THUS DEPRESS OUR STOCK PRICE.
Our corporate documents, including our stockholder rights plan, 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. These and other
provisions could limit the price that investors might be willing to pay for our
securities or preclude a sale of our company at a time and price beneficial to
our stockholders.
A NUMBER OF FACTORS COULD CAUSE THE PRICES FOR OUR SECURITIES TO CONTINUE TO BE
HIGHLY VOLATILE, AND YOU MAY NOT BE ABLE TO RESELL OUR SECURITIES AT OR ABOVE
THE OFFERING PRICE.
Our annual and quarterly operating results may fluctuate and may be
below expectations of public market analysts and investors. If this occurs, the
trading price of our securities could significantly decline. The market price of
our securities could also 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. Some of our security holders are entitled to certain
registration rights. The exercise of those rights could adversely affect the
market price of our securities.
For these and other reasons, the market price of our common stock has
been and is likely to continue to be volatile. No assurance can be given that
investors will be able to sell our securities at or above the offering price.
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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 Year Ended December 31,
June 30, -------------------------------------------------------------------
2000 1999 1998 1997 1996 1995
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Deficiency of earnings
to fixed charges $10,869,784 $22,033,478 $11,590,207 $ 9,696,729 $ 3,612,432 $ 3,313,817
Deficiency of earnings to
combined fixed charges
and preferred dividends $11,708,572 $23,736,254 $13,317,324 $10,099,049 $ 3,612,432 $ 3,313,817
</TABLE>
12.
<PAGE> 15
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 325,000 are designated Series A
Preferred Stock and 250,000 are designated Series B Junior Participating
Preferred Stock. As of June 30, 2000, there were approximately 270 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 the Company, holders of the common stock are entitled to share
ratably in all assets remaining after payment of liabilities and the liquidation
preference of any then-outstanding preferred stock. Holders of common stock have
no preemptive rights and no right to convert their common stock into any other
securities. There are no redemption or sinking fund provisions applicable to the
common stock. All outstanding shares of common stock are, and all shares of
common stock to be outstanding upon completion of this offering will be, fully
paid and non-assessable.
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 the Company. The terms
of the Rights are set forth in a Rights Agreement (as amended from time to time,
the "Rights Agreement") dated as of January 23, 1998, between the Company and
American Stock Transfer & Trust Company, as Rights Agent. Prior to the
occurrence of certain specified future events, the Rights will not be
represented by separate certificates and will be transferable with and only with
the associated common stock.
Pursuant to the Rights Agreement, in the event that, among other
things, a third party acquires beneficial ownership of 15% or more of the
outstanding shares of the common stock, each holder of Rights will be entitled
to purchase securities of the Company having a market value equal to twice the
purchase price thereof. In addition, Rights held by an Acquiring Person (as
defined in the Rights Agreement) will become null and void, nontransferable and
nonexercisable.
Subject to certain limitations, the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right. The Rights will expire on
January 23, 2008, unless earlier redeemed by 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 the Company and certain of
its stockholders, the holders (or their permitted transferees) of approximately
7,553,165 shares of common stock and 195,102 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 the Company proposes to register any
of its securities under the Securities Act, either for its own account or for
the account of other security holders, the Holders are entitled to notice of the
registration and are entitled to include, at 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
The Company is 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. 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 Amended and Restated 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 the
Company, 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
Our Certificate of Incorporation limits the liability of our directors
or 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 the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of the law, (iii) for unlawful payments of dividends or
unlawful stock repurchases or redemptions as provided in Section 174 of
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Delaware Law or (iv) for any transaction from which the director derived an
improper personal benefit.
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 the Company and its
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 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 the Company. 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
accumulate;
o any redemption or sinking fund provisions;
o any conversion or exchange provisions;
o voting rights, if any;
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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 senior 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 10, 2000, 325,000 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 have no preemptive rights in connection therewith. The Series A
Preferred Stock is not subject to any sinking fund or other obligation of the
Company to redeem or retire such shares except as described below. Any Series A
Preferred Stock converted, redeemed or otherwise acquired by 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 the
Company legally available therefor, a semi-annual dividend payable
in common stock (based upon the common stock's then fair market
value) or cash or a combination of common stock and cash, at 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 $1,300,000 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 the Company, whether voluntary or involuntary,
the holders of shares of Series A Preferred Stock are each
entitled to receive out of assets of the Company available for
distribution to stockholders, whether from capital surplus or
earnings, before any distribution of assets is made to holders of
common stock and of any other class of stock of the Company
ranking junior to the Series A Preferred Stock, liquidating
distributions equal to the greater of (i) $50.00 per share of such
Series A Preferred Stock or (ii) the amount per share of such
Series A Preferred Stock that would have been payable had each
such share been converted into common stock immediately prior to
such event of liquidation, dissolution or winding up, plus, in
either case, accrued and unpaid dividends.
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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 (the "Series A Certificate of
Designation"), 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 into which the
Company and a qualified trustee to be specified in an applicable prospectus
supplement or term sheet (the "Trustee") will enter.
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
17.
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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 paid 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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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 the Company, 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 into which we will enter with 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 in which we will enter with
respect to particular offerings of warrants, will be filed as an exhibit to this
registration statement prior to the issuance of any warrants.
19.
<PAGE> 22
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:
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, to or through
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
20.
<PAGE> 23
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 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 into
which they enter 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.
21.
<PAGE> 24
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
the Company by Cooley Godward LLP, Boulder, Colorado.
EXPERTS
The audited financial statements incorporated by reference in this
prospectus to the extent and for the periods indicated in their report have been
audited by Arthur Andersen LLP, independent public accountants, and are included
herein in reliance upon the authority of said firm as experts in accounting and
auditing in giving said reports.
22.
<PAGE> 25
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 THE COMPANY. 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
--------------------
, 2000
<PAGE> 26
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................................................ $ 7,920
Printing and engraving expenses................................. 10,000
Legal fees and expenses......................................... 15,000
Accounting Fees and Expenses.................................... 5,000
Miscellaneous................................................... 5,000
--------
Total........................................................ $ 42,920
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Under Section 145 of Delaware 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 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 the
Company and its stockholders. This provision in the 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 our directors will continue to be
subject to liability for breach of the director's duty of loyalty to the
Company, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, for improper transactions between
the director and the Company 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 the Company, and we maintain directors' and
officers' liability insurance.
At present, there is no pending litigation or proceeding involving a
director or officer of the Company 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> 27
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
1.1# Form of Underwriting Agreement
4.1* Amended and Restated Certificate of Incorporation of the
Company
4.2** Certificate of Designation of the Series A Preferred Stock
of the Company
4.3** Amendment to Certificate of Designation of the Series A
Preferred Stock of the Company
4.4*** Certificate of Designation of the Series B Junior
Participating Preferred Stock of the Company
4.5* Amended and Restated Bylaws of the Company
4.6** Amendment to the Amended and Restated Bylaws of the
Company
4.7** Specimen stock certificate representing shares of Series A
Preferred Stock of the Company
4.8* Specimen stock certificate representing shares of common
stock of the Company
4.9*** Rights Agreement between the Company 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 Andersen 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
II-2
<PAGE> 28
----------------
# To be filed by amendment/incorporated by reference.
* 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) We hereby undertake:
(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; and
(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 us 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 from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at
the termination of the offering.
(b) We hereby undertake that, for purposes of determining any liability
under the Securities Act, each filing of our 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 our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have 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 our payment of expenses incurred or paid by a director,
officer or controlling person of ours in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
II-3
<PAGE> 29
person in connection with the securities being registered, we will, unless in
the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
(d) We hereby undertake that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A
and contained in a form of prospectus filed by us 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, 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) We hereby undertake 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 (the "Act") in accordance with the rules
and regulations prescribed by the Commission under section 305(b)(2) of the Act.
II-4
<PAGE> 30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, we certify
that we have reasonable grounds to believe that we meet all of the requirements
for filing on Form S-3 and have duly caused this registration statement to be
signed on our behalf by the undersigned, thereunto duly authorized, in the City
of Golden, State of Colorado, on August 11, 2000.
BOLDER Technologies Corporation
By /s/ JOSEPH F. FOJTASEK
--------------------------------
Joseph F. Fojtasek
Chief Financial Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Roger F. Warren and Joseph F. Fojtasek
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/ ROGER F. WARREN Chief Executive Officer, President and Chairman August 11, 2000
------------------------------------ of the Board (Principal Executive Officer)
Roger F. Warren
/s/ JOSEPH F. FOJTASEK Chief Financial Officer and Vice President - August 11, 2000
------------------------------------ Finance and Administration, Treasurer
Joseph F. Fojtasek (Principal Financial and Accounting Officer)
/s/ WILMER R. BOTTOMS Director August 11, 2000
------------------------------------
Wilmer R. Bottoms
/s/ WILLIAM D. CONNOR Director August 11, 2000
------------------------------------
William D. Connor
/s/ ROBERT N. HIATT Director August 11, 2000
------------------------------------
Robert N. Hiatt
</TABLE>
II-5
<PAGE> 31
<TABLE>
<S> <C> <C>
/s/ DONOVAN B. HICKS Director August 11, 2000
------------------------------------
Donovan B. Hicks
/s/ DANIEL S. LANKFORD Director August 11, 2000
------------------------------------
Daniel S. Lankford
/s/ CARL S. STUTTS Director August 11, 2000
------------------------------------
Carl S. Stutts
</TABLE>
II-6
<PAGE> 32
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
1.1# Form of Underwriting Agreement
4.1* Amended and Restated Certificate of Incorporation of the
Company
4.2** Certificate of Designation of the Series A Preferred Stock
of the Company
4.3** Amendment to Certificate of Designation of the Series A
Preferred Stock of the Company
4.4*** Certificate of Designation of the Series B Junior
Participating Preferred Stock of the Company
4.5* Amended and Restated Bylaws of the Company
4.6** Amendment to the Amended and Restated Bylaws of the
Company
4.7** Specimen stock certificate representing shares of Series A
Preferred Stock of the Company
4.8* Specimen stock certificate representing shares of common
stock of the Company
4.9*** Rights Agreement between the Company 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 Andersen LLP
23.2# Consent of Cooley Godward LLP (included in Exhibit 5.1)
</TABLE>
<PAGE> 33
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
24.1 Power of Attorney (see signature page hereto)
25.1# Statement of eligibility of trustee
</TABLE>
----------------
# To be filed by amendment/incorporated by reference.
* 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.
