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EXHIBIT 4.11
WARRANT
NEITHER THE RIGHTS REPRESENTED BY THIS CERTIFICATE NOR THE SHARES ISSUABLE UPON
THE EXERCISE OF THE RIGHTS GRANTED HEREIN HAVE BEEN REGISTERED FOR OFFER OR SALE
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE
LAW. SUCH RIGHTS AND SHARES MAY NOT BE SOLD OR OFFERED FOR SALE IN WHOLE OR IN
PART EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT.
BOLDER TECHNOLOGIES CORPORATION
Warrants to Purchase Common Stock
BOLDER TECHNOLOGIES CORPORATION, a Delaware corporation (the
"Company"), hereby certifies that, for value received and pursuant to that
certain Letter Agreement dated as of April 19, 2000 between Donaldson, Lufkin &
Jenrette Securities Corporation and the Company, the registered holder hereof,
or its registered assigns, is entitled, subject to the terms set forth below, to
purchase from the Company upon surrender of this certificate, at any time or
times on or after the date hereof but not after 5:00 P.M., New York City Time,
on the Expiration Date (as defined herein), ninety eight thousand, four hundred
and sixty one (98,461) fully paid, nonassessable shares of Common Stock (as
defined herein) of the Company (as adjusted from time to time as provided in
this certificate) at a purchase price per share equal to the Warrant Exercise
Price (as defined herein) in effect at the time of exercise hereof in lawful
money of the United States. The Warrant Exercise Price may be paid in cash or,
alternatively, the holder may, in lieu of paying the Warrant Exercise Price in
cash, receive a "net issuance" of shares of Common Stock pursuant to Section 2.
SECTION 1. (a) Definitions. The following terms as used in this
certificate shall have the following meanings:
"Common Stock" means (a) the Company's common stock, par value .001
per share, and (b) any capital stock into which such "Common Stock" shall have
been changed or any capital stock resulting from a reclassification of such
"Common Stock".
"Expiration Date" means June 27, 2005.
"Fair Market Value" means either (i) the Market Price, if any, of the
Common Stock or (ii) if no Market Price exists, the value (which shall not take
into effect any minority discounts) of the Common Stock as determined by a
nationally recognized investment banking firm or accounting firm designated by
the Investors and reasonably acceptable to the Company; provided
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that if the parties cannot agree on such a firm, each party shall choose a
nationally recognized investment banking firm, which shall choose a third
nationally recognized firm and that third firm shall determine the Fair Market
Value, which determination shall be final and binding. The cost relating to
retaining any such firm(s) pursuant to this definition shall be borne by the
Company.
"Market Price" of any security means the value determined in accordance
with the following provisions:
(i) if such security is listed on a national securities exchange
registered under the Exchange Act, a price equal to the average of the closing
sales prices for such security on such exchange for each day during the 20
consecutive trading days immediately preceding the date in question; and
(ii) if not so listed, and such security is quoted on NASDAQ, a
price equal to the average of the closing bid and asked prices for such security
quoted on such system each day during the 20 consecutive trading days
immediately preceding the date in question.
"Original Issue Date" means the date of original issuance of this
Certificate.
"Warrants" shall mean the warrants represented by a certificate in the
form hereof.
"Warrant Exercise Price" shall initially be $4.0625 per share and shall
be adjusted and readjusted from time to time as provided in this certificate.
"Warrant Shares" means the shares of Common Stock issuable upon
exercise of the Warrants.
(b) Other Definitional Provisions. (i) Except as otherwise specified
herein, all references herein (A) to any person other than the Company, shall be
deemed to include such person's successors and assigns, (B) to the Company shall
be deemed to include the Company's successors and (C) to any applicable law
defined or referred to herein, shall be deemed references to such applicable law
as the same may have been or may be amended or supplemented from time to time.
(ii) When used in this certificate, the words "herein", "hereof" and
"hereunder", and words of similar import, shall refer to this certificate as a
whole and not to any provision of this certificate, and the words "Section" and
"Exhibit" shall refer to Sections of, and Exhibits to, this certificate unless
otherwise specified.
(iii) Whenever the context so requires the neuter gender includes the
masculine or feminine, and the singular number includes the plural, and vice
versa.
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SECTION 2. Exercise of Warrants. (a) Subject to the terms and
conditions hereof, the Warrants may be exercised, in whole or in part, at any
time during normal business hours on or after the opening of business on the
date hereof and prior to the close of business on the Expiration Date. The
rights represented by this certificate may be exercised by the holder hereof
then registered on the books of the Company, in whole or from time to time in
part (except that the Warrants shall not be exercisable as to a fractional
share) by (i) delivery of a written notice, in the form of the Subscription
Notice attached as Exhibit A hereto, of such holder's election to exercise
Warrants, which notice shall specify the number of Warrant Shares to be
purchased, (ii) subject to Section 2(c), payment to the Company of an amount
equal to the Warrant Exercise Price multiplied by the number of Warrant Shares
as to which Warrants are being exercised in cash or by certified or official
bank check, for the number of Warrant Shares as to which Warrants shall have
been exercised, and (iii) the surrender of this certificate, properly endorsed,
at the principal office of the Company at 4403 Table Mountain Drive, Golden,
Colorado 80403 (or at such other agency or office of the Company as the Company
may designate by notice to the holder hereof). In the event of any exercise of
the rights represented by this certificate, a certificate or certificates for
the Warrant Shares so purchased, registered in the name of, or as directed by,
the holder, shall be delivered to, or as directed by such holder within a
reasonable time, not exceeding 15 days, after such rights shall have been so
exercised.
(b) Unless the rights represented by this certificate shall have
expired or have been fully exercised, the Company shall issue a new certificate
identical in all respects to the certificate surrendered upon exercise except
(x) it shall represent rights to purchase the number of Warrant Shares
purchasable immediately prior to such exercise under the Warrants exercised,
less the number of Warrant Shares with respect to which such Warrants were
exercised, and (y) the Warrant Exercise Price thereof shall be the Warrant
Exercise Price of the Warrants so exercised. The person in whose name any
certificate for Warrant Shares is issued upon exercise of the Warrants shall for
all purposes be deemed to have become the holder of record of such Warrant
Shares immediately prior to the close of business on the date on which this
certificate was surrendered and payment of the amount due in respect of such,
irrespective of the date of delivery of such share certificate, except that, if
the date of such surrender and payment is a date when the stock transfer books
of the Company are properly closed, such person shall be deemed to have become
the holder of such Warrant Shares at the opening of business on the next
succeeding date on which the stock transfer books are open.
(c) In lieu of any holder of this certificate exercising the Warrants
(or any portion of the Warrants) evidenced hereby for cash, such holder may, in
connection with such exercise, elect to satisfy the Warrant Exercise Price by
exchanging solely the Warrants represented by this certificate (or such portion
thereof) for a number of Warrant Shares equal to the product of (i) the number
of shares of Common Stock issuable upon such exercise of such Warrants (or, if
only a portion of such Warrants are being exercised, issuable upon the exercise
of such portion) for cash multiplied by (ii) a fraction, the numerator of which
is the Fair Market Value per share of the Common Stock at the time of such
exercise minus the Warrant Exercise Price per share of the Common Stock at the
time of such exercise, and the denominator of which is the Fair Market Value per
share of the Common Stock at the time of such exercise, such number of shares so
issuable upon such exercise to be rounded up or down to the nearest whole number
of Warrant Shares.
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SECTION 3. Covenants as to Common Stock. (a) The Company covenants and
agrees that all Warrant Shares which may be issued upon the exercise of the
rights represented by this certificate will, upon issuance, be validly issued,
fully paid and nonassessable. The Company further covenants and agrees that
during the period within which the Warrants may be exercised, the Company will
at all times have authorized and reserved a sufficient number of shares of
Common Stock to provide for the exercise of the rights then represented by this
certificate and that the par value of said shares will at all times be less than
or equal to the applicable Warrant Exercise Price.
(b) If any shares of Common Stock reserved or to be reserved to provide
for the exercise of the Warrants require registration with or approval of any
governmental or self-regulatory authority under any federal or state law or
stock exchange or NASDAQ rule before such shares may be validly issued, then the
Company covenants that it will in good faith and as expeditiously as possible
endeavor to secure such registration or approval, as the case may be.
SECTION 4. Anti-Dilution Adjustments.
(a) Adjustments. The number of Warrant Shares and the Warrant Exercise
Price shall be subject to adjustment from time to time as hereinafter provided
in this Section 4.
(b) Adjustments Upon Stock Splits, Dividends, Distributions and
Combinations. In case the Company shall at any time subdivide its outstanding
shares of Common Stock into a greater number of shares or issue a stock dividend
or make a distribution in shares of Common Stock with respect to outstanding
shares of Common Stock or other securities or in case the outstanding shares of
Common Stock of the Company shall be combined into a smaller number of shares,
then in each such case the holder hereof shall thereafter be entitled to
purchase, at the Warrant Exercise Price resulting from such adjustment as
described below, the number of Warrant Shares determined by multiplying the
number of Warrant Shares purchasable pursuant hereto immediately prior to such
adjustment by a fraction of which (i) the numerator shall be the Shares of
Common Stock outstanding immediately after and giving effect to such issuance
and (ii) the denominator shall be the Shares of Common Stock outstanding
immediately prior to such adjustment;
Upon each adjustment of the number of Warrant Shares as provided above
in this Section 4(b), the Warrant Exercise Price in effect immediately prior to
such combination shall be proportionately increased or reduced to a price
determined by multiplying the Warrant Exercise Price in effect immediately prior
to such adjustment by a fraction of which the (i) the numerator shall be the
number of Warrant Shares purchasable pursuant hereto immediately prior to such
adjustment and (ii) the denominator shall be the number of Warrant Shares
purchasable pursuant hereto immediately after such adjustment.
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Notwithstanding anything to the contrary herein, no adjustment shall be
required to the number of Warrant Shares or the Warrant Exercise Price in
connection with the Company's payment (in Common Stock or in cash) of a
semi-annual dividend to the holders of its Series A Preferred Stock.
(c) Certain Dividends and Distributions. If the Company shall
distribute to all holders of its Common Stock evidences of its indebtedness or
assets (including cash) in the form of an Extraordinary Dividend, then in such
case (i) the Warrant Exercise Price shall be reduced by an amount equal to the
amount of such indebtedness and/or assets distributed per share of Common Stock
until the Warrant Exercise price equals $.001 and (ii) if the amount of such
indebtedness or assets distributed per share of Common Stock exceeds the Warrant
Exercise Price, an amount of such indebtedness and assets equal to such excess
amount multiplied by the number of Warrant Shares issuable upon exercise of a
Warrant shall be distributed to the holder of Warrants for each outstanding
Warrant held by such holder. Such adjustment and distribution to the holders, if
applicable, shall be made whenever any such distribution to holders of Common
Stock is made and such adjustment shall be retroactively effective as of
immediately after the record date for the determination of stockholders entitled
to receive such distribution. The amount of any such distribution to holders of
Common Stock for purposes of calculating a reduction in the Warrant Exercise
Price under this Section 4(c) shall be based upon the "fair market value" of
such indebtedness and assets distributed per share of Common Stock as determined
reasonably and in good faith by the Board of Directors of the Company.
"Extraordinary Dividend" shall mean any dividend or distribution other than a
regularly scheduled dividend (including, without limitation, regularly scheduled
dividend payments made to the holders of the Company's Series A Preferred Stock)
paid out of cumulative consolidated net income (including all losses) after June
27, 2000 pursuant to an announced Company dividend policy.
(d) Computation of Adjustments. Upon each computation of an adjustment
in the Warrant Exercise Price and the number of Warrant Shares, the Warrant
Exercise Price shall be computed to the nearest cent (i.e., fractions of .5 of a
cent, or greater, shall be rounded to the next highest cent) and the number of
Warrant Shares shall be calculated to the nearest whole share (i.e., fractions
of less than one half of a share shall be disregarded and fractions of one half
of a share, or greater, shall be treated as being a whole share). No such
adjustment shall be made, however, if the change in the Warrant Exercise Price
would be less than $.001 per share, but any such lesser adjustment shall be made
(i) at the time and together with the next subsequent adjustment which, together
with any adjustments carried forward, shall amount to $.001 per share or more,
or (ii) if earlier, upon the third anniversary of the event for which such
adjustment is required.
(e) Notice of Additional Adjustments. Upon any event requiring an
adjustment in the number of Warrant Shares or the Warrant Exercise Price
pursuant to Section 4, then and in each such case the Company promptly shall
give written notice thereof to each holder of Warrants, which notice shall state
the number of Warrant Shares and the Warrant Exercise Price after giving effect
to such adjustment and shall set forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.
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(f) Issuance Tax. The issuance of certificates for shares of Common
Stock pursuant to Section 4 shall be made without charge to the holders of
Shares for any issuance tax in respect thereto, provided that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name other than
that of the holder of the Shares.
(g) Closing of Books. The Company will not close its books against the
issuance or transfer of any shares of Common Stock issuable pursuant to
Section 4.
(h) Record Date. In case the Company shall take a record of the holders
of its Common Stock for the purpose of entitling them (x) to receive a dividend
or other distribution, or (y) to receive any rights to purchase any securities,
then such record date shall be deemed to be the date of the issue or sale of the
shares of Common Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or the date of the
granting of such right or option of subscription or purchase.
SECTION 5. Reorganization, Reclassification, Etc. In case of any
capital reorganization, or of any reclassification of the capital stock, of the
Company (other than a change in par value or from par value to no par value or
from no par value to par value or as a result of a split-up or combination) or
in case of the consolidation or merger of the Company with or into any other
person (other than a consolidation or merger in which the Company is the
continuing corporation and which does not result in the Common Stock being
changed into or exchanged for stock or other securities or property of any other
person), or of the sale of all or substantially all of the properties and assets
of the Company to any other person, the Warrants shall, after such capital
reorganization, reclassification of capital stock, consolidation, merger or
sale, entitle the registered holder hereof to purchase the kind and number of
shares of stock or other securities or property of the Company, or of the person
resulting from such consolidation or surviving such merger or to which such sale
shall be made, as the case may be, to which the holder hereof would have been
entitled if such holder had held the Common Stock issuable upon the exercise
hereof immediately prior to such capital reorganization, reclassification of
capital stock, consolidation, merger or sale, and in any such case appropriate
provision shall be made with respect to the rights and interests of the holder
of this certificate to the end that the provisions hereof (including without
limitation provisions for adjustment of the Warrant Exercise Price and of the
number of shares purchasable upon the exercise of the Warrants) shall thereafter
be applicable, as nearly as may be in relation to any shares of stock,
securities or assets thereafter deliverable upon the exercise of the Warrants.
The Company shall not effect any such consolidation, merger or sale, unless
prior to or simultaneously with the consummation thereof the successor (if other
than the Company) resulting from such consolidation or merger or the person
purchasing such assets shall assume by written instrument executed and mailed or
delivered to the registered holder hereof at the address of such holder
appearing on the books of the Company, the obligation to deliver to such holder
such shares of stock, securities or assets as, in accordance with the foregoing
provisions, such holder may be entitled to purchase.
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SECTION 6. Notice of Certain Events. In case at any time:
(a) the Company shall pay any dividend upon, or make any distribution
in respect of, its Common Stock;
(b) the Company shall offer for subscription pro rata to the holders of
its Common Stock any additional shares of stock of any class or other rights;
(c) there shall be any capital reorganization, or reclassification of
the capital stock, of the Company, or consolidation or merger of the Company
with, or sale of all or substantially all of its assets to, another person; or
(d) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in any one or more of said cases, the Company shall give notice to each
registered holder of the Warrants hereof of the date on which (i) the books of
the Company shall close or a record shall be taken for such dividend,
distribution or subscription rights, or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall be given not
less than ten (10) days prior to the record date or the date on which the
transfer books of the Company are to be closed in respect thereto in the case of
an action specified in clause (i) and at least twenty (20) days prior to the
action in question in the case of an action specified in clause (ii).
SECTION 7. No Change in Warrant Terms on Adjustment. Irrespective of
any adjustment in the Warrant Exercise Price or the number of the number of
Warrant Shares, this certificate, whether theretofore or thereafter issued or
reissued, may continue to express the same price and number of Warrant Shares as
are stated herein and the Warrant Exercise Price and such number of Warrant
Shares specified herein shall be deemed to have been so adjusted.
SECTION 8. Transfer Taxes. The Company shall not be required to pay any
tax or taxes attributable to the initial issuance of the Warrant Shares or any
transfer involved in the issue or delivery of any certificates for Warrant
Shares in each case in a name other than that of the registered holder hereof or
upon any transfer of the Warrants.
SECTION 9. Exchange of Warrants. This certificate is exchangeable upon
the surrender hereof by the holder at such office or agency of the Company, for
a new certificate of like tenor representing in the aggregate the right to
subscribe for and purchase the number of shares which may be subscribed for and
purchased hereunder from time to time after giving effect to all the provisions
hereof, each of such new certificates to represent the right to subscribe for
and purchase such number of shares as shall be designated by said holder hereof
at the time of such surrender.
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SECTION 10. Lost, Stolen, Mutilated or Destroyed Warrant. If this
Certificate is lost, stolen, mutilated or destroyed, the Company shall, on such
terms as to indemnity or otherwise as it may in its discretion impose (which
shall, in the case of a mutilated Certificate, include the surrender thereof),
issue a new Certificate of like denomination and tenor as the Certificate so
lost, stolen, mutilated or destroyed. Any such new certificate shall constitute
an original contractual obligation of the Company, whether or not the allegedly
lost, stolen, mutilated or destroyed certificate shall be at any time
enforceable by anyone.
SECTION 11. Notice. All notices and other communications under this
Warrant shall (a) be in writing (which shall include communications by telex and
telecopy), (b) be (i) sent by registered or certified mail, postage prepaid,
return receipt requested, by prepaid telex or telecopier, or (ii) delivered by
hand, (c) be given at the following respective addresses and telex, telecopier
and telephone numbers and to the attention of the following persons:
(i) if to the Company, to it at:
Bolder Technologies Corporation
4403 Table Mountain Drive
Golden, CO 80403
Telephone No.: 303-215-7200
Telecopier No.: 303-215-2500
Attention: President
with a copy to:
Cooley Godward LLP
2595 Canyon Blvd., Suite 250
Boulder, CO 80302
Telephone No.: 303-546-4000
Telecopier No.: 303-546-4099
Attention: James H. Carroll, Esq.
(ii) if to the holder, to it at:
Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Telephone No.: (212) 892-3605
Telecopier No.: (212) 892-7272
Attention: Sam Pina
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with a copy to:
George Fan
Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Telephone No.: (212) 892-3000
Telecopier No.: (212) 892-7272
or at such other address or telex, telecopier or telephone number or to the
attention of such other person as the party to whom such information pertains
may hereafter specify for the purpose in a notice to the other specifically
captioned "Notice of Change of Address", and (d) be effective or deemed
delivered or furnished (i) if given by mail, on the fifth Business Day after
such communication is deposited in the mail, addressed as above provided, (ii)
if given by telex or telecopier, when such communication is transmitted to the
appropriate number determined as above provided in this Section 12 and the
appropriate answerback is received or receipt is otherwise acknowledged, (iii)
if given by hand delivery, when left at the address of the addressee addressed
as above provided, and (iv) if given by telephone, when communicated to the
person or to the holder of the office specified as the person or officeholder to
whose attention communications are to be given, except that notices of a change
of address, telex, telecopier or telephone number, shall not be deemed
furnished, until received.
SECTION 12. Miscellaneous. All certificates evidencing outstanding
Warrants and any term hereof or thereof may be amended or waived only by an
instrument in writing signed by the Company and the holders of a majority of the
outstanding Warrants, provided that such amendment or waiver shall amend or
waive each Warrant certificate in the same manner. The headings in this
certificate are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
SECTION 13. Date. The date of this certificate is June 27, 2000. This
certificate, in all events, shall be wholly void and of no effect after the
close of business on the Expiration Date.
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IN WITNESS WHEREOF, the Company has caused this certificate to be
executed by its duly authorized officers and its corporate seal to be hereunto
affixed as of the 27 day of June, 2000.
BOLDER TECHNOLOGIES CORPORATION
By:
--------------------------------
Name: Roger F. Warren
Title: President and CEO
ATTEST:
By:
-----------------------
Secretary
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EXHIBIT A TO
WARRANT CERTIFICATE
SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER IF
SUCH REGISTERED HOLDER DESIRES TO EXERCISE WARRANTS
BOLDER TECHNOLOGIES CORPORATION
The undersigned hereby exercises the right to purchase Warrant Shares
covered by this certificate according to the conditions thereof and herewith
[makes payment of $__________, the aggregate Warrant Exercise Price for
________ Warrant Shares.] [tenders solely the Warrants evidenced by this
certificate, or applicable portion hereof, in full satisfaction of the Warrant
Exercise Price for _____ Warrant Shares upon the terms and conditions set forth
herein.]
HOLDER:
------------------------------------
By:
--------------------------------
Name:
Title:
[Net] Number of
Warrant Shares Being
Purchased
--------------------------
Dated: _____________, ______
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