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As filed with the Securities and Exchange Commission on July 28, 2000
Registration No. [_______]
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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 registration statement becomes effective.
If any of the securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
------------------------------------- ------------------- --------------------------- -------------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001(2) 2,572,500 shares(3) $7.3750 $18,972,187.50 $5,008.66
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) based on the average of the high
and low sale prices of the Registrant's common stock as reported on The
NASDAQ National Market on July 24, 2000.
(2) Includes Preferred Share Purchase Rights ("Rights"). The Rights are
associated with and trade with the Common Stock. The value, if any,
attributable to the Rights is reflected in the market price of the Common
Stock.
(3) Includes 98,461 shares of the Registrant's common stock issuable upon the
exercise of a warrant.
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment that specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE> 3
SUBJECT TO COMPLETION PRELIMINARY PROSPECTUS
DATED JULY 28, 2000
2,572,500 SHARES
BOLDER TECHNOLOGIES CORPORATION
COMMON STOCK
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This Prospectus covers 2,572,500 shares of our common stock, 98,461 shares
of which are issuable upon the exercise of an outstanding warrant which may be
exercised at any time prior to June 27, 2005. The selling stockholders
identified in this Prospectus may sell these shares of common stock from time to
time on terms to be determined at the time of sale. We will not receive any of
the proceeds from the sale of shares by the selling stockholders.
Our shares trade on The NASDAQ National Market under the symbol "BOLD." On
July 24, 2000, the closing sale price of the common stock, as reported on The
NASDAQ National Market, was $7.25.
The selling stockholders may sell the shares of common stock described in
this Prospectus in public or private transactions, on or off The NASDAQ National
Market, at prevailing market prices, or at privately negotiated prices. The
selling stockholder may sell shares directly to purchasers or through brokers or
dealers. Brokers or dealers may receive compensation in the form of discounts,
concessions or commissions from the selling stockholder. We have agreed to
indemnify certain of the selling stockholders and certain other persons against
certain liabilities, including liabilities under the Securities Act of 1933.
We will not be paying any underwriting commissions or discounts in the
offering of these shares. We will, however be paying for the expenses incurred
in the offering of the shares. For their shares, the selling stockholders will
receive the purchase price of the shares sold less any agents' commissions and
underwriters' discounts and other related expenses. More information is provided
in the section titled "Plan of Distribution" on page 12.
Our address and telephone number are: BOLDER Technologies Corporation.,
4403 Table Mountain Drive, Golden, Colorado 80403, (303) 215-7200.
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THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD ACQUIRE SHARES
ONLY IF YOU CAN AFFORD A COMPLETE LOSS. SEE "RISK FACTORS" BEGINNING ON PAGE 7.
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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Page
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Where You Can Find More Information.................................. 2
The Company.......................................................... 4
Forward-Looking Statements........................................... 6
Risk Factors......................................................... 7
Use of Proceeds...................................................... 12
Selling Stockholders................................................. 12
Plan of Distribution................................................. 12
Description of Capital Stock......................................... 13
Legal Matters........................................................ 17
Experts.............................................................. 17
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WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the Securities
and Exchange Commission. You may inspect and copy such material at the public
reference facilities maintained by the SEC at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the SEC's regional offices at Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and at
Seven World Trade Center, New York, New York 10048. You can also inspect such
materials at The National Association of Securities Dealers, 1735 K Street,
N.W., Washington, D.C.
Please call the SEC at 1-800-SEC-0330 for more information on the public
reference rooms. You can also find our SEC filings at the SEC's web site,
"http://www.sec.gov."
The SEC allows us to "incorporate by reference" the information that we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this Prospectus. Information in this Prospectus
supercedes information incorporated by reference which we filed with the SEC
prior to the date of this Prospectus. Information that we file later with the
SEC will automatically update and supercede this information. We incorporate by
reference the documents listed below and any future filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934:
o Annual Report on Form 10-K for the fiscal year ended December 31,
1999;
o Quarterly Report on Form 10-Q for the period ended March 31, 2000;
o Definitive Proxy Statement dated April 28, 2000;
o Current Report on Form 8-K dated March 24, 2000; and
o The description of common stock contained in BOLDER Technologies
Corporation's Registration Statement on Form 8-A declared effective by
the Commission on April 29, 1996, including any amendment or reports
filed for the purpose of updating such description.
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:
2.
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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.
3.
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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 telephone 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 stores, 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 dedicated starting batteries
for motor boats, commercial trucks, and automobiles, beginning in the
first half 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 concept will not only provide the boat owner with a
"guaranteed start" but also extend 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.
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 will 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 in the second half of 2002, under 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.
4.
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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 its 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 8 issued and 10 pending
United States patents and 21 issued and 13 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 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.
5.
<PAGE> 8
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.
FORWARD-LOOKING STATEMENTS
This Prospectus and the documents incorporated by reference herein include
forward-looking statements. Those statements are sometimes indicated by words
such as "anticipate," "estimate," "believe," "consider," "expect," "project,"
"intend" and similar expressions. Forward-looking statements are based on
assumptions of future events, some of which will not occur. Actual results will
vary from those set forth or implied in the forward-looking statements and the
variances may be material. See "Risk Factors."
6.
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RISK FACTORS
An investment in our common stock involves a high degree of risk. You
should carefully consider the following "Risk Factors" before you decide to buy
our common stock. 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. There can be no assurance that we will be able to do
so. We may have large inventory writedowns 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 our
manufacturing costs and generate gross profit.
7.
<PAGE> 10
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, any fire or other calamity affecting the existing line or our facility
could have a material adverse effect on us.
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 currently 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, 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. No assurance can be
given that we will be able to compete successfully with those companies,
including with JCI in the markets where JCI has a license from us, or other
competitors.
Prestone Products Corporation (a subsidiary of AlliedSignal Corporation),
Century Mfg. Co. (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.
Because the status of patents involves complex legal and factual questions
and the breadth of claims issued is uncertain, we cannot be certain that any of
our issued patents will afford meaningful protection against competitors with
similar technology. Some foreign countries provide significantly less patent
protection than the United States. 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 Mfg. Co., an affiliate of Pentair, Inc., 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
9.
<PAGE> 12
misappropriated Century's trade secrets and 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 recently 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 vigorously 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 PRODUCT
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 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, which when mixed with air, can
cause explosions. In addition, under such conditions, toxic
10.
<PAGE> 13
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 be volatile. No assurance can be given that investors will be
able to sell our securities at or above the offering price.
11.
<PAGE> 14
USE OF PROCEEDS
We will not receive any proceeds from the sale of common stock by the
selling stockholders.
SELLING STOCKHOLDERS
The following table sets forth the names of the selling stockholders,
the number of shares of common stock owned by each of them as of the date of
this Prospectus and the number of shares of common stock which may be offered
pursuant to this Prospectus. The selling stockholders may offer all, some or
none of their shares of common stock.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY
OWNED PRIOR TO SHARES BEING SHARES BENEFICIALLY OWNED
NAME OFFERING(1)(2) OFFERED AFTER OFFERING(2)
---- --------------------- ------------ ---------------------------
NUMBER PERCENT NUMBER PERCENT
------ ------- ------ -------
<S> <C> <C> <C> <C> <C>
State of Wisconsin 910,800 5.30% 2,461,539 910,800 5.30%
Investment Board
Donaldson, Lufkin and -- -- 98,461 -- --
Jenrette Securities
Corporation
Wheatley Blair, Inc. -- -- 12,500 -- --
</TABLE>
----------
(1) Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission and generally includes voting or
investment power with respect to securities. Shares of common stock
issuable upon exercise of options currently exercisable, or exercisable
within 60 days of the date of this Prospectus, are deemed outstanding for
computing the percentage of the person holding such securities but are not
outstanding for computing the percentage of any other person. Subject to
community property laws where applicable, the persons named in the above
table have sole voting and investment power with respect to all shares of
common stock shown as beneficially owned by them.
(2) Although the selling stockholders have not expressed a specific intention
as to the number of shares of common stock to be sold, the table shows the
beneficial ownership that would result if all shares being offered hereby
were sold. Percentage calculations are based upon approximately 17,200,000
shares of common stock outstanding as of June 30, 2000.
PLAN OF DISTRIBUTION
The Company is registering the shares of common stock (the "Shares")
offered by the selling stockholders hereunder. As used herein, "selling
stockholders" includes pledgees, donees and transferees selling shares received
from a named selling stockholder after the date of this Prospectus. All costs,
expenses and fees in connection with the registration of the Shares offered
hereby will be borne by the Company. Brokerage commissions and similar selling
expenses, if any, attributable to the sale of Shares will be borne by the
selling stockholders.
Sales of Shares may be effected by the selling stockholders from time
to time in one or more types of transactions (which may involve one or more
blocked transactions) on The NASDAQ National Market, in privately negotiated
transactions, through put or call options transactions, through short sales of
Shares, or a combination of such methods of sale, at market prices prevailing at
the time of sale or at negotiated prices. Such transactions may or may not
involve brokers or dealers.
The selling stockholders may effect such transactions by selling the
Shares to or through broker-dealers, which may act as agents or principals. Such
broker-dealers may receive compensation in the form of discounts, concession or
commissions from the selling stockholders and/or the purchasers of the Shares
for whom such broker-dealers may act as agent or to whom they sell as principal,
or both (which compensation to a particular broker-dealer might be in excess of
customary commission).
12.
<PAGE> 15
At any time a particular offer of Shares is made, the specific Shares of
common stock to be sold, the names of the selling stockholders, the respective
purchase prices and public offering prices, the names of any agent, dealer or
underwriter, and any applicable commissions or discounts with respect to a
particular offer will be set forth in an accompanying Prospectus supplement or,
if appropriate, a post-effective amendment to the registration statement of
which this Prospectus is a part.
The selling stockholders and any broker-dealers who act in connection with
the sale of Shares hereunder may be deemed to be "underwriters" as that term is
defined in the Securities Act of 1933 (the "Securities Act"), and any
commissions received by them and profit on any resale of the Shares as principal
might be deemed to be underwriting discounts and commissions under the
Securities Act.
Any or all of the sales or other transactions involving the Shares
described above, whether effected by the selling stockholders, any broker-dealer
or others, may be made pursuant to this Prospectus. In addition, any Shares that
qualify for sale pursuant to Rule 144 under the Act may be sold under Rule 144
rather than pursuant to this Prospectus.
In order to comply with the securities laws of certain states, if
applicable, the Shares may be sold in such jurisdictions only through registered
or licensed brokers or dealers. In addition, in certain states the Shares may
not be sold unless they have been registered or qualified for sale or an
exemption from registration or qualification requirements is available and is
complied with.
The Company will be permitted to suspend the use of the Prospectus which is
a part of such registration statement during certain periods of time and under
certain circumstances relating to pending corporate developments, public filings
with the Commission and similar events. The Company will pay all expenses of
such registration statement, provide to each registered holder requesting to
sell the Shares copies of such Prospectus, notify each registered holder when
such registration statement has become effective and take certain other actions
as are required to permit, subject to the foregoing, unrestricted resales of
such securities. A holder who sells such securities pursuant to such
registration statement generally will be required to be named as a selling
stockholder in the related Prospectus and to deliver a Prospectus to purchasers.
If a registration statement covering the Shares is not effective, such Shares
may not be sold or otherwise transferred except in accordance with the
provisions set forth under an exemption from registration under federal and
state securities laws.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital stock consists of 25,000,000 shares of
common stock, $.001 par value per share, and 5,000,000 shares of preferred
stock, $.001 par value per share, of which 336,200 are designated Series A
Preferred Stock and 250,000 are designated Series B Junior Participating
Preferred Stock. As of June 30, 2000, there were approximately 270 record
holders of the Company's common stock.
COMMON STOCK
The holders of the Company's common stock are entitled to one vote for each
share held of record on all matters submitted to a vote of the stockholders. The
holders of common stock are not entitled to cumulative voting rights with
respect to the election of directors, and as a consequence, minority
stockholders will not be able to elect directors on the basis of their votes
alone. Subject to preferences that may be applicable to any then outstanding
shares of preferred stock, holders of common stock are entitled to receive
ratably such dividends as may be declared by the Board of Directors out of funds
legally available therefor. In the event of a liquidation, dissolution or
winding up of the Company, holders of the common stock are entitled to share
ratably in all assets remaining after payment of liabilities and the liquidation
preference of any then outstanding preferred stock. Holders of common stock have
no preemptive rights and no right to convert their common stock into any other
securities. There are no redemption or sinking fund provisions applicable to the
common stock. All outstanding shares of common stock are, and all shares of
common stock to be outstanding upon completion of this offering will be, fully
paid and nonassessable.
13.
<PAGE> 16
SHAREHOLDER RIGHTS PLAN
Each share of common stock has associated with it one right (a "Right") to
purchase one one-hundredth of a share of Series B Junior Participating Preferred
Stock (or in certain cases other securities) of the Company. The terms of the
Rights are set forth in a Rights Agreement (the "Rights Agreement") dated as of
January 23, 1998, between the Company and American Stock Transfer & Trust
Company, as Rights Agent. Prior to the occurrence of certain specified future
events, the rights will not be represented by separate certificates and will be
transferable with and only with the associated common stock.
Pursuant to the Rights Agreement, in the event that, among other things, a
third party acquires beneficial ownership of 15% or more of the outstanding
shares of the common stock, each holder of Rights will be entitled to purchase
securities of the Company having a market value equal to twice the purchase
price thereof. In addition, Rights held by an Acquiring Person (as defined in
the Rights Agreement) will become null and void, nontransferable and
nonexercisable.
Subject to certain limitations, the Company may redeem the Rights in whole,
but not in part, at a price of $.01 per Right. The Rights will expire on January
23, 2008, unless earlier redeemed by the Company.
The Company's Shareholder Rights Plan may have the effect of discouraging
unsolicited takeover attempts.
The foregoing summary of certain terms of the Rights does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
the Rights Agreement, a copy of which is on file with the Commission.
PREFERRED STOCK
The Board of Directors of the Company is empowered, without approval of the
stockholders, to cause shares of preferred stock to be issued in one or more
series and to establish the number of shares to be included in each such series
and the rights, powers, preferences and limitations of each series. Because the
Board of Directors has the power to establish the preferences and rights of each
series, it may afford the holders of any series of preferred stock preferences,
powers and rights, voting or otherwise, senior to the rights of holders of
common stock or other series of preferred stock. The issuance of the preferred
stock could have the effect of delaying or preventing a change in control of the
Company. The Board of Directors has no present plans to issue any of the
preferred stock, other than the Series A Preferred Stock which was issued by the
Company in October 1997. In connection with the Company's Shareholder Rights
Plan, the Company would be obligated to issue shares of Series B Junior
Participating Preferred Stock if such rights become exercisable.
The Series A Preferred Stock constitutes a single series of the preferred
stock of the Company consisting of 336,200 shares. All outstanding shares of
Series A Preferred Stock are duly authorized, validly issued, fully paid and
nonassessable, and the holders thereof will not have any preemptive rights in
connection therewith. The Series A Preferred Stock is not subject to any sinking
fund or other obligation of the Company to redeem or retire such shares except
as described below. Any Series A Preferred Stock converted, redeemed or
otherwise acquired by the Company will, upon cancellation of such shares, have
the status of authorized but unissued preferred stock subject to issuance by the
Board of Directors as shares of preferred stock of any one or more other series
but not as shares of Series A Preferred Stock.
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 the Company is required to pay), when, as and if
declared by the Board of Directors, out of the funds of the Company
legally available therefor, a semi-annual dividend payable in common
stock (based upon the common stock's then fair market value) or cash
or a combination of common stock and cash, at the Company's option, at
an annual rate equal to (i) $4.00 per share to the extent the dividend
is paid in cash and (ii) $4.50 per share to the extent the dividend is
paid in common stock. If dividends are paid in cash it could require
the Company to pay $1,344,000 annually. If dividends are paid in
common stock it will be dilutive to the holders of common stock.
14.
<PAGE> 17
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.
o REDEMPTION RIGHTS. Under certain circumstances, the shares of Series A
Preferred Stock are redeemable at the option of the Company, in whole
or in part, at any time or from time to time out of funds legally
available therefor, at $50.00 per share, plus in each case an amount
equal to accrued and unpaid dividends, if any, to (and including) the
redemption date, whether or not earned or declared (the "Redemption
Price"). The Redemption Price may be paid in shares of common stock or
cash, or in a combination of common stock and cash, at the Company's
option.
o REDEMPTION AT OPTION OF HOLDER UPON A FUNDAMENTAL CHANGE. If a
Fundamental Change (as defined in the Certificate of Designation of
the Series A Preferred Stock, a copy of which has previously been
filed with the Commission (the "Certificate of Designation")) occurs,
each holder of Series A Preferred Stock shall have the right, at the
holder's option, to require the Company to redeem all of such holder's
Series A Preferred Stock, or any portion thereof that has an aggregate
liquidation value that is a multiple of $50.00, on the date selected
by the Company 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. The
Company may, at its option, pay all or any portion of the Redemption
Price upon a Fundamental Change in shares of common stock of the
Company or any successor corporation.
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, the Board of Directors of the
Company shall be increased and the holders of Series A Preferred Stock
that have not been so redeemed shall be entitled, voting as a separate
class, to elect additional directors to the Board of Directors of the
Company so that the number of additional directors to be elected by
the Series A Preferred Stock shall constitute not less than 20%
(rounded to the nearest whole number) of the total number of directors
after giving effect to such increase. Such right shall exist until the
Series A Preferred Stock is redeemed.
OUTSTANDING REGISTRATION RIGHTS
Pursuant to existing agreements 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. If the Company proposes to register any of its securities
under the Securities Act, either for its own account or for the account of other
security holders, the Holders are entitled to notice of the registration and are
entitled to include, at the Company's expense, such shares therein, provided,
among other conditions, that the underwriters have the right to limit the number
of such shares included in the registration. In addition, certain of the Holders
may require the Company, on not more than two occasions, to file a registration
statement under the Securities Act, at the Company's expense, with respect to
their shares of common stock, and the Company is required to use its best
efforts to effect the registration, subject to certain conditions and
limitations. However, the Holders may not require the Company to file any such
registration statement within 90 days of the effective date of any prior
registration statement covering the Company's common
15.
<PAGE> 18
stock, and the Company may defer the filing of such registration statement for
up to 120 days. Further, certain of the Holders may require the Company, at its
expense, to register their shares of common stock on a Form S-3, 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, and an "interested stockholder" is a person who, together with
affiliates and associates, owns (or, within three years prior, did own) 15% or
more of the corporation's voting stock.
The Company's Certificate of Incorporation (the "Certificate of
Incorporation") also requires that any action required or permitted to be taken
by stockholders of the Company must be effected at a duly called annual or
special meeting of the stockholders and may not be effected by a consent in
writing; provided, however, that the holders of Series A Preferred Stock may,
until such time as the Series A Preferred Stock is registered pursuant to any
effective registration statement under Section 12 of the Securities Exchange Act
of 1934, as amended, act by written consent so long as such action by written
consent is solely being taken by, and is only applicable to, the holders of
Series A Preferred Stock. Special meetings of the stockholders of the Company
may be called only by the Board of Directors, the Chairman of the Board or the
Chief Executive Officer. The Certificate of Incorporation also provides that the
authorized number of Directors may be changed only by resolution of the Board of
Directors, and that Directors can only be removed for cause by a majority vote
of the stockholders. In addition, the Certificate of Incorporation provides for
the classification of the Board of Directors into three classes, only one of
which shall be elected at any given annual meeting. These provisions may have
the effect of delaying, deterring or preventing a change in control of the
Company, depressing the market price of common stock or discouraging hostile
takeover bids in which stockholders of the Company could receive a premium for
their shares of common stock.
LIMITATION ON DIRECTORS' LIABILITY
The Certificate of Incorporation limits the liability of the Company's
directors to the Company or its stockholders (in their capacity as directors but
not in their capacity as officers) to the fullest extent permitted by Delaware
law. Specifically, directors of the Company will not be personally liable for
monetary damages for breach of a director's fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of the law, (iii)
for unlawful payments of dividends or unlawful stock repurchases or redemptions
as provided in Section 174 of the Delaware General Corporation Law or (iv) for
any transaction from which the director derived an improper personal benefit.
The inclusion of this provision in the Certificate of Incorporation may
have the effect of reducing the likelihood of derivative litigation against
directors and may discourage or deter stockholders or management from bringing a
lawsuit against directors for breach of their duty of care, even though such an
action, if successful, might otherwise have benefited the Company and its
stockholders.
TRANSFER AGENT AND REGISTRAR
American Stock Transfer & Trust Company acts as transfer agent and
registrar for the common stock and for the Series A Preferred Stock.
16.
<PAGE> 19
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed
upon for BOLDER Technologies Corporation by Cooley Godward LLP, Boulder,
Colorado.
EXPERTS
The audited financial statements incorporated by reference in this
prospectus and registration statement to the extent and for the period indicated
in their reports have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
17.
<PAGE> 20
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 THE AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOF OR IMPLY THAT INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
2,572,500 SHARES
BOLDER TECHNOLOGIES CORPORATION
COMMON STOCK
----------
PROSPECTUS
----------
, 2000
<PAGE> 21
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 the Registrant in connection with the sale
of the common stock being registered. All the amounts shown are estimates except
for the registration fee.
<TABLE>
<S> <C>
Registration fee.............................. $ 5,008.66
Printing and engraving expenses............... 2,500.00
Legal fees and expenses....................... 10,000.00
Accounting Fees and Expenses.................. 2,500.00
Miscellaneous................................. 2,491.34
-----------
Total...................................... $ 22,500.00
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its Directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act.
The Registrant's Bylaws provide that the Registrant will indemnify its
directors and executive officers and may indemnify its other officers, employees
and agents to the fullest extent permitted by Delaware law. The Registrant is
also empowered under its Bylaws to enter into indemnification agreements with
its directors and officers and to purchase insurance on behalf of any person it
is required or permitted to indemnify.
In addition, the Registrant's Restated Certificate of Incorporation
provides that to the fullest extent permitted by Delaware law, the Registrant's
directors will not be liable for monetary damages for breach of the directors'
fiduciary duty of care to the Registrant and its stockholders. This provision in
the Restated Certificate of Incorporation does not eliminate the duty of care,
and in appropriate circumstances equitable remedies such as an injunction or
other forms of non-monetary relief would remain available under Delaware law.
Each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Registrant, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
any transaction from which the director derived an improper personal benefit,
for improper transactions between the director and the Registrant and for
improper distributions to stockholders and loans to directors and officers. This
provision also does not affect a director's responsibilities under any other
laws, such as the federal securities law or state or federal environmental laws.
The Registrant has entered into indemnification agreements with each of its
directors and officers under which the Registrant has indemnified each of them
against expenses and losses incurred for claims brought against them by reason
of their being a director or officer of the Registrant, and the Registrant
maintains directors' and officers' liability insurance.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
The Registrant has an insurance policy covering the officers and directors
of the Registrant with respect to certain liabilities, including liabilities
arising under the Securities Act or otherwise.
II-1
<PAGE> 22
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
4.1* Amended and Restated Certificate of Incorporation of the
Registrant.
4.2** Certificate of Designation of the Series A Preferred Stock of the
Registrant.
4.3** Amendment to Certificate of Designation of the Series A Preferred
Stock of Registrant.
4.4*** Certificate of Designation of the Series B Junior Participating
Preferred Stock of the Registrant.
4.5* Amended and Restated Bylaws of the Registrant.
4.6** Amendment to the Amended and Restated Bylaws of the Registrant.
4.7** Specimen stock certificate representing shares of Series A
Preferred Stock of the Registrant.
4.8* Specimen stock certificate representing shares of Common Stock of
the Registrant.
4.9*** Rights Agreement between the Registrant and American Stock
Transfer & Trust Company, dated January 23, 1998.
4.10*** Form of Rights Certificate.
4.11 Warrant to purchase 98,461 shares of Common Stock of the
Registrant.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1 Power of Attorney (see signature page hereto).
----------
* Previously filed as an exhibit to the Registrant's Registration Statement
on Form SB-2 (Registration No. 333-2500-D) and incorporated herein by
reference.
** Previously filed as an exhibit to the Registrant's Registration Statement
on Form S-3 (Registration No. 333-41625) and incorporated herein by
reference.
*** Previously filed as an exhibit to the Registrant's January 23, 1998 Form
8-K and incorporated herein by reference.
II-2
<PAGE> 23
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(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 Commission by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in the registration
statement.
(2) 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 which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities under the Securities Act of
1933 may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriated
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h)
II-3
<PAGE> 24
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Golden, State of Colorado, on July 27, 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 July 27, 2000
------------------------------------ Chairman of the Board (Principal Executive
Roger F. Warren Officer)
/s/ Joseph F. Fojtasek Chief Financial Officer and Vice President - July 27, 2000
------------------------------------ Finance and Administration, Treasurer
Joseph F. Fojtasek (Principal Financial Officer)
/s/ Wilmer R. Bottoms Director July 27, 2000
------------------------------------
Wilmer R. Bottoms
/s/ William D. Connor Director July 27, 2000
------------------------------------
William D. Connor
/s/ Robert N. Hiatt Director July 27, 2000
------------------------------------
Robert N. Hiatt
/s/ Donovan B. Hicks Director July 27, 2000
------------------------------------
Donovan B. Hicks
/s/ Daniel S. Lankford Director July 27, 2000
------------------------------------
Daniel S. Lankford
/s/ Carl S. Stutts Director July 27, 2000
------------------------------------
Carl S. Stutts
</TABLE>
II-5
<PAGE> 26
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT PAGE
------- ----------------------- ----
<S> <C> <C>
4.1* Amended and Restated Certificate of Incorporation of the Registrant. --
4.2** Certificate of Designation of the Series A Preferred Stock of the Registrant. --
4.3** Amendment to Certificate of Designation of the Series A Preferred Stock of Registrant. --
4.4*** Certificate of Designation of the Series B Junior Participating Preferred Stock of the
Registrant. --
4.5* Amended and Restated Bylaws of the Registrant. --
4.6** Amendment to the Amended and Restated Bylaws of the Registrant. --
4.7** Specimen stock certificate representing shares of Series A Preferred Stock of the
Registrant. --
4.8* Specimen stock certificate representing shares of Common Stock of the Registrant. --
4.9*** Rights Agreement between the Registrant and American Stock Transfer & Trust
Company, dated January 23, 1998. --
4.10*** Form of Rights Certificate. --
4.11 Warrant to purchase 98,461 shares of Common Stock of the Registrant. A-1
5.1 Opinion of Cooley Godward LLP. B-1
23.1 Consent of Arthur Andersen LLP. F-1
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1). --
24.1 Power of Attorney (see signature page hereto). --
</TABLE>
----------
* Previously filed as an exhibit to the Registrant's Registration Statement
on Form SB-2 (Registration No. 333-2500-D) and incorporated herein by
reference.
** Previously filed as an exhibit to the Registrant's Registration Statement
on Form S-3 (Registration No. 333-41625) and incorporated herein by
reference.
*** Previously filed as an exhibit to the Registrant's January 23, 1998 Form
8-K and incorporated herein by reference.
