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EXHIBIT 4.11
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO SUCH SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
BOLDER TECHNOLOGIES CORPORATION
WARRANT TO PURCHASE COMMON STOCK
WCS No. 2 December 16, 1999
Effective as of September 24, 1999
VOID AFTER SEPTEMBER 24, 2004
THIS CERTIFIES THAT, for value received, VFT Special Ventures LTD, with
its principal office at Parkview Tower, 0000 0xx Xxx, Xxxxx 000, Xxxx xx
Xxxxxxx, XX 00000, or its assigns (the "Holder"), is entitled to subscribe for
and purchase at the Exercise Price (defined below) from BOLDER Technologies
Corporation, a Delaware corporation, with its principal office at 0000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 (the "Company") up to one hundred and
ninety five thousand (195,000) shares of the Common Stock of the Company (the
"Common Stock").
1. DEFINITIONS. As used herein, the following terms shall have
the following respective meanings:
(a) "EXERCISE PERIOD" shall mean the period commencing
with the date hereof and ending five years from the date hereof, unless sooner
terminated as provided below.
(b) "EXERCISE PRICE" shall mean $8.00 per share, subject
to adjustment pursuant to Section 5 below.
(c) "EXERCISE SHARES" shall mean the shares of the
Company's Common Stock issuable upon exercise of this Warrant.
2. EXERCISE OF WARRANT. The rights represented by this Warrant
may be exercised in whole or in part at any time during the Exercise Period, by
delivery of the following to the Company at its address set forth above (or at
such other address as it may designate by notice in writing to the Holder):
(i) An executed Notice of Exercise in the form attached
hereto;
(ii) Payment of the Exercise Price either (i) in cash or
by check, or (ii) by cancellation of indebtedness; and
(iii) This Warrant.
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Upon the exercise of the rights represented by this Warrant, a
certificate or certificates for the Exercise Shares so purchased, registered in
the name of the Holder or persons affiliated with the Holder, if the Holder so
designates, shall be issued and delivered to the Holder within a reasonable time
after the rights represented by this Warrant shall have been so exercised.
The person in whose name any certificate or certificates for Exercise
Shares are to be issued upon exercise of this Warrant shall be deemed to have
become the holder of record of such shares on the date on which this Warrant was
surrendered and payment of the Exercise Price was made, irrespective of the date
of delivery of such certificate or certificates, except that, if the date of
such surrender and payment is a date when the stock transfer books of the
Company are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
3. COVENANTS OF THE COMPANY.
(a) COVENANTS AS TO EXERCISE SHARES. The Company
covenants and agrees that all Exercise Shares that may be issued upon the
exercise of the rights represented by this Warrant will, upon issuance, be
validly issued and outstanding, fully paid and nonassessable, and free from all
taxes, liens and charges with respect to the issuance thereof. The Company
further covenants and agrees that the Company will at all times during the
Exercise Period, have authorized and reserved, free from preemptive rights, a
sufficient number of shares of its Common Stock to provide for the exercise of
the rights represented by this Warrant. If at any time during the Exercise
Period the number of authorized but unissued shares of Common Stock shall not be
sufficient to permit exercise of this Warrant, the Company will take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purposes.
(b) NO IMPAIRMENT. Except and to the extent as waived or
consented to by the Holder, the Company will not, by amendment of its Articles
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the exercise rights of the Holder against impairment.
(c) NOTICES OF RECORD DATE. In the event of any taking by
the Company of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend which is the same as cash dividends paid in
previous quarters) or other distribution, the Company shall mail to the Holder,
at least ten (10) days prior to the date specified herein, a notice specifying
the date on which any such record is to be taken for the purpose of such
dividend or distribution.
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4. REPRESENTATIONS OF HOLDER.
(a) ACQUISITION OF WARRANT FOR PERSONAL ACCOUNT;
ACCREDITED INVESTOR. The Holder represents and warrants that it is acquiring the
Warrant solely for its account for investment and not with a view to or for sale
or distribution of said Warrant or any part thereof. The Holder also represents
that the entire legal and beneficial interests of the Warrant and Exercise
Shares the Holder is acquiring is being acquired for, and will be held for, its
account only. The Holder further represents that it has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risk of its investment in the Warrant. The Holder is an
"accredited investor" as such term is defined in Rule 501 under the Securities
Act of 1933, as amended (the "Act").
(b) SECURITIES ARE NOT REGISTERED.
(i) The Holder understands that the Warrant and
the Exercise Shares have not been registered under the Act on the basis that no
distribution or public offering of the stock of the Company is to be effected.
The Holder realizes that the basis for the exemption may not be present if,
notwithstanding its representations, the Holder has a present intention of
acquiring the securities for a fixed or determinable period in the future,
selling (in connection with a distribution or otherwise), granting any
participation in, or otherwise distributing the securities. The Holder has no
such present intention.
(ii) The Holder recognizes that the Warrant and
the Exercise Shares must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such registration is available.
The Holder recognizes that the Company has no obligation to register the Warrant
or the Exercise Shares of the Company, or to comply with any exemption from such
registration.
(iii) The Holder is aware that neither the Warrant
nor the Exercise Shares may be sold pursuant to Rule 144 adopted under the Act
unless certain conditions are met, including, among other things, the existence
of a public market for the shares, the availability of certain current public
information about the Company, the resale following the required holding period
under Rule 144 and the number of shares being sold during any three month period
not exceeding specified limitations. Holder is aware that the conditions for
resale set forth in Rule 144 have not been satisfied and that the Company
presently has no plans to satisfy these conditions in the foreseeable future.
(c) DISPOSITION OF WARRANT AND EXERCISE SHARES.
(i) The Holder further agrees not to make any
disposition of all or any part of the Warrant or Exercise Shares in any event
unless and until:
(1) The Company shall have received a
letter secured by the Holder from the Securities and Exchange Commission stating
that no action will be recommended to the Commission with respect to the
proposed disposition; or
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(2) There is then in effect a
registration statement under the Act covering such proposed disposition and such
disposition is made in accordance with said registration statement; or
(3) The Holder shall have notified the
Company of the proposed disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the proposed disposition,
and if reasonably requested by the Company, the Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, for
the Holder to the effect that such disposition will not require registration of
such Warrant or Exercise Shares under the Act or any applicable state securities
laws.
(ii) The Holder understands and agrees that all
certificates evidencing the shares to be issued to the Holder may bear the
following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE
ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
(iii) The Holder hereby agrees not to sell or
otherwise transfer or dispose of all or any part of this Warrant or the Exercise
Shares during a period specified by the representative of the underwriters of
Common Stock (not to exceed one hundred eighty (180) days) following the
effective date of the registration statement of the Company filed under the Act.
Holder further agrees that the Company may impose stop-transfer instructions
with respect to securities subject to the foregoing restrictions until the end
of such period.
5. ADJUSTMENT OF EXERCISE PRICE. In the event of changes in the
outstanding Common Stock of the Company by reason of stock dividends, split-ups,
recapitalizations, reclassifications, combinations or exchanges of shares,
separations, reorganizations, liquidations, or the like, the number and class of
shares available under the Warrant in the aggregate and the Exercise Price shall
be correspondingly adjusted to give the Holder of the Warrant, on exercise for
the same aggregate Exercise Price, the total number, class, and kind of shares
as the Holder would have owned had the Warrant been exercised prior to the event
and had the Holder continued to hold such shares until after the event requiring
adjustment; provided, however, that such adjustment shall not be made with
respect to, and this Warrant shall terminate if not exercised prior to, the
events set forth in Section 7 below. The form of this Warrant need not be
changed because of any adjustment in the number of Exercise Shares subject to
this Warrant.
6. FRACTIONAL SHARES. No fractional shares shall be issued upon
the exercise of this Warrant as a consequence of any adjustment pursuant hereto.
All Exercise Shares (including fractions) issuable upon exercise of this Warrant
may be aggregated for purposes of determining whether the exercise would result
in the issuance of any fractional share. If, after aggregation,
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the exercise would result in the issuance of a fractional share, the Company
shall, in lieu of issuance of any fractional share, pay the Holder otherwise
entitled to such fraction a sum in cash equal to the product resulting from
multiplying the then current Per Share Market Value of an Exercise Share by such
fraction.
7. EARLY TERMINATION. In the event of, at any time during the
Exercise Period, any capital reorganization, or 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 no par value to par value or as a result of a stock dividend
or subdivision, split-up or combination of shares), or the consolidation or
merger of the Company with or into another corporation (other than a merger
solely to effect a reincorporation of the Company into another state), or the
sale or other disposition of all or substantially all the properties and assets
of the Company in its entirety to any other person, the Company shall provide to
the Holder twenty (20) days advance written notice of such reorganization,
reclassification, consolidation, merger or sale or other disposition of the
Company's assets, and this Warrant shall terminate unless exercised prior to the
occurrence of such reorganization, reclassification, consolidation, merger or
sale or other disposition of the Company's assets.
8. COMPANY CALL RIGHT. This Warrant may be called in whole or in
part at the option of the Company from time to time by delivering written notice
to the Holder as long as (a) the Per Share Market Value of the Common Stock has
exceeded $15.00 within five (5) business days of the delivery of such written
notice, and (b) the Company has a sufficient number of authorized shares of
Common Stock reserved for issuance upon full exercise of the outstanding
Warrant. The Warrant will expire unless exercised by the Holder within thirty
(30) days of the delivery to the Holder of the written call notice. For purposes
of this Warrant, "Per Share Market Value" of Common Stock means on any
particular date (a) the last reported sale price of Common Stock on The NASDAQ
National Market, or any similar system of automated dissemination of quotations
of securities prices then in common use, if so quoted, or (b) if not quoted as
described in clause (a), the mean between the high bid and low asked quotations
for Common Stock as reported by the National Quotation Bureau Incorporated if at
least two securities dealers have inserted both bid and asked quotations for the
Common Stock on at least 5 of the ten preceding days, or (c) if there is no
public market for the Common Stock, the value determined by mutual agreement of
the Company and the Holder, and if the Company and the Holder are unable to so
agree, by an investment banker of national reputation selected by the Holder and
reasonably acceptable to the Company.
9. NO STOCKHOLDER RIGHTS. This Warrant in and of itself shall not
entitle the Holder to any voting rights or other rights as a stockholder of the
Company.
10. TRANSFER OF WARRANT. Subject to applicable laws, the
restriction on transfer set forth on the first page of this Warrant, this
Warrant and all rights hereunder are transferable, by the Holder in person or by
duly authorized attorney, upon delivery of this Warrant and the form of
assignment attached hereto to any transferee designated by Holder. The
transferee shall sign an investment letter in form and substance satisfactory to
the Company.
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11. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant
is lost, stolen, mutilated or destroyed, the Company may, on such terms as to
indemnity or otherwise as it may reasonably impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination and tenor as the Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute an original contractual obligation of the
Company, whether or not the allegedly lost, stolen, mutilated or destroyed
Warrant shall be at any time enforceable by anyone.
12. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by telex, telegram,
express mail or other form of rapid communications, if possible, and if not then
such notice or communication shall be mailed by first-class mail, postage
prepaid, addressed in each case to the party entitled thereto at the addresses
set forth on the cover page of this Warrant, or at such other address as one
party may furnish to the other in writing. Notice shall be deemed effective on
the date dispatched if by personal delivery, telecopy, telex or telegram, two
days after mailing if by express mail, or three days after mailing if by
first-class mail.
13. ACCEPTANCE. Receipt of this Warrant by the Holder shall
constitute acceptance of and agreement to all of the terms and conditions
contained herein.
14. GOVERNING LAW. This Warrant and all rights, obligations and
liabilities hereunder shall be governed by the laws of the State of Colorado.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by its duly authorized officer on December 16, 1999, effective as of September
24, 1999.
BOLDER TECHNOLOGIES CORPORATION
By:
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Name:
Title:
ATTEST:
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Secretary
WARRANT TO PURCHASE COMMON STOCK
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NOTICE OF EXERCISE
TO: BOLDER TECHNOLOGIES CORPORATION
(1) The undersigned hereby elects to purchase ________ shares of
the Common Stock of BOLDER Technologies Corporation (the "Company") pursuant to
the terms of the attached Warrant, and tenders herewith payment of the exercise
price in full, together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name as
is specified below:
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(Name)
------------------------
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(Address)
(3) The undersigned represents that (i) the aforesaid shares of
Common Stock are being acquired for the account of the undersigned for
investment and not with a view to, or for resale in connection with, the
distribution thereof and that the undersigned has no present intention of
distributing or reselling such shares; (ii) the undersigned is aware of the
Company's business affairs and financial condition and has acquired sufficient
information about the Company to reach an informed and knowledgeable decision
regarding its investment in the Company; (iii) the undersigned is experienced in
making investments of this type and has such knowledge and background in
financial and business matters that the undersigned is capable of evaluating the
merits and risks of this investment and protecting the undersigned's own
interests; (iv) the undersigned understands that the shares of Common Stock
issuable upon exercise of this Warrant have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), by reason of a
specific exemption from the registration provisions of the Securities Act, which
exemption depends upon, among other things, the bona fide nature of the
investment intent as expressed herein, and, because such securities have not
been registered under the Securities Act, they must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available; (v) the undersigned is aware that the aforesaid
shares of Common Stock may not be sold pursuant to Rule 144 adopted under the
Securities Act unless certain conditions are met and until the undersigned has
held the shares for the number of years prescribed by Rule 144, that among the
conditions for use of the Rule is the availability of current information to the
public about the Company and the Company has not made such information available
and has no present plans to do so; and (vi) the undersigned agrees not to make
any disposition of all or any part of the aforesaid shares of Common Stock
unless and until there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with said registration statement, or the undersigned has provided
the Company with an opinion of counsel satisfactory to the Company, stating that
such registration is not required.
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(Date) (Signature)
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(Print name)
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ASSIGNMENT FORM
(To assign the foregoing Warrant, execute
this form and supply required information.
Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
Name:
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(Please Print)
Address:
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(Please Print)
Dated:
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Holder's
Signature:
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Holder's
Address:
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NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
