U. S. Securities and Exchange Commission
Washington, D.C. 20549
Form 10-SB/A
GENERAL FORM FOR REGISTRATION OF SECURITIES OF
SMALL BUSINESS ISSUERS
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
BOULDER CAPITAL OPPORTUNITIES II, INC.
(Name of Small Business Issuer in its charter)
Colorado 84-1356898
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4750 Table Mesa Drive, Boulder, Colorado 80303
(Address of principal executive offices) (Zip Code)
Issuer's telephone number: (303) 442-1021
Securities to be registered under Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Not Applicable
Securities to be registered under Section 12(g) of the Act:
Common Stock
(Title of class)
<PAGE>
PART I
Item 1. Description of Business.
General
The Company was incorporated under the laws of the State of
Colorado on August 8, 1996, and is in the early developmental and
promotional stages. To date the Company's only activities have been
organizational ones, directed at developing its business plan and
raising its initial capital. The Company has not commenced any
commercial operations. The Company has no full-time employees and
owns no real estate.
The Company can be defined as a "shell" company whose sole
purpose at this time is to locate and consummate a merger or
acquisition with a private entity. As part of its business plan, this
Company is filing this registration statement on Form 10-SB on a
voluntary basis in order to become a "public" company by virtue of
being subject to the reporting requirements of the Securities Exchange
Act of 1934. Another aspect of its business plan which the Company
intends to implement after this registration statement becomes
effective, is to seek to facilitate the eventual creation of a public
trading market in its outstanding securities.
The Company's business plan is to seek, investigate, and, if
warranted, acquire one or more properties or businesses, and to pursue
other related activities intended to enhance shareholder value. The
acquisition of a business opportunity may be made by purchase,
merger, exchange of stock, or otherwise, and may encompass assets
or a business entity, such as a corporation, joint venture, or
partnership. The Company has very limited capital, and it is unlikely
that the Company will be able to take advantage of more than one
such business opportunity. The Company intends to seek
opportunities demonstrating the potential of long-term growth as
opposed to short-term earnings.
At the present time the Company has not identified any busi-
ness opportunity that it plans to pursue, nor has the Company reached
any agreement or definitive understanding with any person concerning
an acquisition. The Company's officer and director has previously
been involved in transactions involving a merger between an
established company and a shell entity, and has a number of contacts
within the field of corporate finance. As a result, he has had
preliminary contacts with representatives of numerous companies
concerning the general possibility of a merger or acquisition by a shell
company. However, none of these preliminary contacts or discussions
involved the possibility of a merger or acquisition transaction with the
Company.
It is anticipated that the Company's officer and director will
contact broker-dealers and other persons with whom he is acquainted
who are involved in corporate finance matters to advise them of the
Company's existence and to determine if any companies or businesses
they represent have an interest in considering a merger or acquisition
with the Company. No assurance can be given that the Company will
be successful in finding or acquiring a desirable business opportunity,
given the limited funds that are expected to be available for
acquisitions, or that any acquisition that occurs will be on terms that
are favorable to the Company or its stockholders.
The Company's search will be directed toward small and
medium-sized enterprises which have a desire to become public
corporations and which are able to satisfy, or anticipate in the
reasonably near future being able to satisfy, the minimum asset
requirements in order to qualify shares for trading on NASDAQ or on
a stock exchange (See "Investigation and Selection of Business
Opportunities"). The Company anticipates that the business
opportunities presented to it will (i) be recently organized with no
operating history, or a history of losses attributable to
under-capitalization or other factors; (ii) be experiencing financial or
operating difficulties; (iii) be in need of funds to develop a new
product or service or to expand into a new market; (iv) be relying
upon an untested product or marketing concept; or (v) have a
combination of the characteristics mentioned in (i) through (iv). The
Company intends to concentrate its acquisition efforts on properties or
businesses that it believes to be undervalued. Given the above factors,
investors should expect that any acquisition candidate may have a
history of losses or low profitability.
The Company does not propose to restrict its search for in-
vestment opportunities to any particular geographical area or industry,
and may, therefore, engage in essentially any business, to the extent
of its limited resources. This includes industries such as service,
finance, natural resources, manufacturing, high technology, product
development, medical, communications and others. The Company's
discretion in the selection of business opportunities is unrestricted,
subject to the availability of such opportunities, economic conditions,
and other factors.
As a consequence of this registration of its securities, any
entity which has an interest in being acquired by, or merging into the
Company, is expected to be an entity that desires to become a public
company and establish a public trading market for its securities. In
connection with such a merger or acquisition, it is highly likely that
an amount of stock constituting control of the Company would be
issued by the Company or purchased from the current principal
shareholders of the Company by the acquiring entity or its affiliates.
If stock is purchased from the current shareholders, the transaction is
very likely to result in substantial gains to them relative to their
purchase price for such stock. In the Company's judgment, none of
its officers and directors would thereby become an "underwriter"
within the meaning of the Section 2(11) of the Securities Act of 1933,
as amended. The sale of a controlling interest by certain principal
shareholders of the Company could occur at a time when the other
shareholders of the Company remain subject to restrictions on the
transfer of their shares.
Depending upon the nature of the transaction, the current sole
officer and director of the Company may resign his management
positions with the Company in connection with the Company's
acquisition of a business opportunity. See "Form of Acquisition,"
below, and "Risk Factors - The Company - Lack of Continuity in
Management." In the event of such a resignation, the Company's
current management would not have any control over the conduct of
the Company's business following the Company's combination with
a business opportunity.
It is anticipated that business opportunities will come to the
Company's attention from various sources, including its officer and
director, its other stockholders, professional advisors such as attorneys
and accountants, securities broker-dealers, venture capitalists, members
of the financial community, and others who may present unsolicited
proposals. The Company has no plans, understandings, agreements,
or commitments with any individual for such person to act as a finder
of opportunities for the Company.
The Company does not foresee that it would enter into a
merger or acquisition transaction with any business with which its sole
officer or director is currently affiliated. Should the Company
determine in the future, contrary to the foregoing expectations, that a
transaction with an affiliate would be in the best interests of the
Company and its stockholders, the Company is in general permitted
by Colorado law to enter into such a transaction if:
1. The material facts as to the relationship or interest of the
affiliate and as to the contract or transaction are disclosed or
are known to the Board of Directors, and the Board in good
faith authorizes the contract or transaction by the affirmative
vote of a majority of the disinterested directors, even though
the disinterested directors constitute less than a quorum; or
2. The material facts as to the relationship or interest of the
affiliate and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith
by vote of the stockholders; or
3. The contract or transaction is fair as to the Company as of the
time it is authorized, approved or ratified, by the Board of
Directors or the stockholders.
Investigation and Selection of Business Opportunities
To a large extent, a decision to participate in a specific business
opportunity may be made upon management's analysis of the quality
of the other company's management and personnel, the anticipated
acceptability of new products or marketing concepts, the merit of
technological changes, the perceived benefit the company will derive
from becoming a publicly held entity, and numerous other factors
which are difficult, if not impossible, to analyze through the
application of any objective criteria. In many instances, it is antici-
pated that the historical operations of a specific business opportunity
may not necessarily be indicative of the potential for the future
because of the possible need to shift marketing approaches
substantially, expand significantly, change product emphasis, change
or substantially augment management, or make other changes. The
Company will be dependent upon the owners of a business opportunity
to identify any such problems which may exist and to implement, or
be primarily responsible for the implementation of, required changes.
Because the Company may participate in a business opportunity with
a newly organized firm or with a firm which is entering a new phase
of growth, it should be emphasized that the Company will incur fur-
ther risks, because management in many instances will not have
proved its abilities or effectiveness, the eventual market for such
company's products or services will likely not be established, and such
company may not be profitable when acquired.
It is anticipated that the Company will not be able to diversify, but
will essentially be limited to one such venture because of the
Company's limited financing. This lack of diversification will not
permit the Company to offset potential losses from one business
opportunity against profits from another, and should be considered an
adverse factor affecting any decision to purchase the Company's
securities.
It is emphasized that management of the Company may effect
transactions having a potentially adverse impact upon the Company's
shareholders pursuant to the authority and discretion of the Company's
management to complete acquisitions without submitting any proposal
to the stockholders for their consideration. Holders of the Company's
securities should not anticipate that the Company necessarily will
furnish such holders, prior to any merger or acquisition, with financial
statements, or any other documentation, concerning a target company
or its business. In some instances, however, the proposed participation
in a business opportunity may be submitted to the stockholders for
their consideration, either voluntarily by such directors to seek the
stockholders' advice and consent or because state law so requires.
The analysis of business opportunities will be undertaken by or under
the supervision of the Company's President, who is not a professional
business analyst. See "Management." Although there are no current
plans to do so, Company management might hire an outside consultant
to assist in the investigation and selection of business opportunities,
and might pay a finder's fee. Since Company management has no
current plans to use any outside consultants or advisors to assist in the
investigation and selection of business opportunities, no policies have
been adopted regarding use of such consultants or advisors, the criteria
to be used in selecting such consultants or advisors, the services to be
provided, the term of service, or regarding the total amount of fees
that may be paid. However, because of the limited resources of the
Company, it is likely that any such fee the Company agrees to pay
would be paid in stock and not in cash. Otherwise, the Company
anticipates that it will consider, among other things, the following
factors:
1. Potential for growth and profitability, indicated by new
technology, anticipated market expansion, or new products;
2. The Company's perception of how any particular business
opportunity will be received by the investment community and
by the Company's stockholders;
3. Whether, following the business combination, the financial
condition of the business opportunity would be, or would have
a significant prospect in the foreseeable future of becoming
sufficient to enable the securities of the Company to qualify
for listing on an exchange or on a national automated
securities quotation system, such as NASDAQ, so as to permit
the trading of such securities to be exempt from the
requirements of Rule 15c2-6 recently adopted by the Securities
and Exchange Commission. See "Risk Factors - The
Company - Regulation of Penny Stocks."
4. Capital requirements and anticipated availability of required
funds, to be provided by the Company or from operations,
through the sale of additional securities, through joint ventures
or similar arrangements, or from other sources;
5. The extent to which the business opportunity can be advanced;
6. Competitive position as compared to other companies of
similar size and experience within the industry segment as
well as within the industry as a whole;
7. Strength and diversity of existing management, or management
prospects that are scheduled for recruitment;
8. The cost of participation by the Company as compared to the
perceived tangible and intangible values and potential; and
9. The accessibility of required management expertise, personnel,
raw materials, services, professional assistance, and other
required items.
In regard to the possibility that the shares of the Company
would qualify for listing on NASDAQ, the current standards include
the requirements that the issuer of the securities that are sought to be
listed have total assets of at least $4,000,000 and total capital and
surplus of at least $2,000,000, and proposals have recently been made
to increase these qualifying amounts. Many, and perhaps most, of the
business opportunities that might be potential candidates for a
combination with the Company would not satisfy the NASDAQ listing
criteria.
No one of the factors described above will be controlling in
the selection of a business opportunity, and management will attempt
to analyze all factors appropriate to each opportunity and make a
determination based upon reasonable investigative measures and
available data. Potentially available business opportunities may occur
in many different industries and at various stages of development, all
of which will make the task of comparative investigation and analysis
of such business opportunities extremely difficult and complex.
Potential investors must recognize that, because of the Company's
limited capital available for investigation and management's limited
experience in business analysis, the Company may not discover or
adequately evaluate adverse facts about the opportunity to be acquired.
The Company is unable to predict when it may participate in
a business opportunity. It expects, however, that the analysis of
specific proposals and the selection of a business opportunity may take
several months or more.
Prior to making a decision to participate in a business
opportunity, the Company will generally request that it be provided
with written materials regarding the business opportunity containing
such items as a description of products, services and company history;
management resumes; financial information; available projections, with
related assumptions upon which they are based; an explanation of
proprietary products and services; evidence of existing patents,
trademarks, or services marks, or rights thereto; present and proposed
forms of compensation to management; a description of transactions
between such company and its affiliates during relevant periods; a
description of present and required facilities; an analysis of risks and
competitive conditions; a financial plan of operation and estimated
capital requirements; audited financial statements, or if they are not
available, unaudited financial statements, together with reasonable
assurances that audited financial statements would be able to be
produced within a reasonable period of time not to exceed 60 days
following completion of a merger transaction; and other information
deemed relevant.
As part of the Company's investigation, the Company's
executive officers and directors may meet personally with management
and key personnel, may visit and inspect material facilities, obtain
independent analysis or verification of certain information provided,
check references of management and key personnel, and take other
reasonable investigative measures, to the extent of the Company's
limited financial resources and management expertise.
It is possible that the range of business opportunities that
might be available for consideration by the Company could be limited
by the impact of Securities and Exchange Commission regulations
regarding purchase and sale of "penny stocks." The regulations would
affect, and possibly impair, any market that might develop in the
Company's securities until such time as they qualify for listing on
NASDAQ or on another exchange which would make them exempt
from applicability of the "penny stock" regulations. See "Risk Factors
- - - Regulation of Penny Stocks."
Company management believes that various types of potential
merger or acquisition candidates might find a business combination
with the Company to be attractive. These include acquisition
candidates desiring to create a public market for their shares in order
to enhance liquidity for current shareholders, acquisition candidates
which have long-term plans for raising capital through the public sale
of securities and believe that the possible prior existence of a public
market for their securities would be beneficial, and acquisition
candidates which plan to acquire additional assets through issuance of
securities rather than for cash, and believe that the possibility of
development of a public market for their securities will be of
assistance in that process. Acquisition candidates which have a need
for an immediate cash infusion are not likely to find a potential
business combination with the Company to be an attractive alternative.
Form of Acquisition
It is impossible to predict the manner in which the Company
may participate in a business opportunity. Specific business op-
portunities will be reviewed as well as the respective needs and desires
of the Company and the promoters of the opportunity and, upon the
basis of that review and the relative negotiating strength of the
Company and such promoters, the legal structure or method deemed
by management to be suitable will be selected. Such structure may
include, but is not limited to leases, purchase and sale agreements,
licenses, joint ventures and other contractual arrangements. The
Company may act directly or indirectly through an interest in a
partnership, corporation or other form of organization. Implementing
such structure may require the merger, consolidation or reorganization
of the Company with other corporations or forms of business
organization, and although it is likely, there is no assurance that the
Company would be the surviving entity. In addition, the present
management and stockholders of the Company most likely will not
have control of a majority of the voting shares of the Company
following a reorganization transaction. As part of such a transaction,
the Company's existing directors may resign and new directors may
be appointed without any vote by stockholders.
It is likely that the Company will acquire its participation in
a business opportunity through the issuance of Common Stock or
other securities of the Company. Although the terms of any such
transaction cannot be predicted, it should be noted that in certain
circumstances the criteria for determining whether or not an acquisi-
tion is a so-called "tax free" reorganization under the Internal Revenue
Code of 1986, depends upon the issuance to the stockholders of the
acquired company of a controlling interest (i.e. 80% or more) of the
common stock of the combined entities immediately following the
reorganization. If a transaction were structured to take advantage of
these provisions rather than other "tax free" provisions provided under
the Internal Revenue Code, the Company's current stockholders would
retain in the aggregate 20% or less of the total issued and outstanding
shares. This could result in substantial additional dilution in the
equity of those who were stockholders of the Company prior to such
reorganization. Any such issuance of additional shares might also be
done simultaneously with a sale or transfer of shares representing a
controlling interest in the Company by the current officers, directors
and principal shareholders. (See "Description of Business - General").
It is anticipated that any new securities issued in any
reorganization would be issued in reliance upon exemptions, if any are
available, from registration under applicable federal and state securities
laws. In some circumstances, however, as a negotiated element of the
transaction, the Company may agree to register such securities either
at the time the transaction is consummated, or under certain conditions
or at specified times thereafter. The issuance of substantial additional
securities and their potential sale into any trading market that might
develop in the Company's securities may have a depressive effect
upon such market.
The Company will participate in a business opportunity only
after the negotiation and execution of a written agreement. Although
the terms of such agreement cannot be predicted, generally such an
agreement would require specific representations and warranties by all
of the parties thereto, specify certain events of default, detail the terms
of closing and the conditions which must be satisfied by each of the
parties thereto prior to such closing, outline the manner of bearing
costs if the transaction is not closed, set forth remedies upon default,
and include miscellaneous other terms.
As a general matter, the Company anticipates that it, and/or its
officers and principal shareholders will enter into a letter of intent
with the management, principals or owners of a prospective business
opportunity prior to signing a binding agreement. Such a letter of
intent will set forth the terms of the proposed acquisition but will not
bind any of the parties to consummate the transaction. Execution of
a letter of intent will by no means indicate that consummation of an
acquisition is probable. Neither the Company nor any of the other
parties to the letter of intent will be bound to consummate the
acquisition unless and until a definitive agreement concerning the ac-
quisition as described in the preceding paragraph is executed. Even
after a definitive agreement is executed, it is possible that the
acquisition would not be consummated should any party elect to
exercise any right provided in the agreement to terminate it on
specified grounds.
It is anticipated that the investigation of specific business
opportunities and the negotiation, drafting and execution of relevant
agreements, disclosure documents and other instruments will require
substantial management time and attention and substantial costs for
accountants, attorneys and others. If a decision is made not to
participate in a specific business opportunity, the costs theretofore
incurred in the related investigation would not be recoverable.
Moreover, because many providers of goods and services require
compensation at the time or soon after the goods and services are
provided, the inability of the Company to pay until an indeterminate
future time may make it impossible to procure goods and services.
Investment Company Act and Other Regulation
The Company may participate in a business opportunity by
purchasing, trading or selling the securities of such business. The
Company does not, however, intend to engage primarily in such
activities. Specifically, the Company intends to conduct its activities
so as to avoid being classified as an "investment company" under the
Investment Company Act of 1940 (the "Investment Act"), and
therefore to avoid application of the costly and restrictive registration
and other provisions of the Investment Act, and the regulations
promulgated thereunder.
Section 3(a) of the Investment Act contains the definition of
an "investment company," and it excludes any entity that does not
engage primarily in the business of investing, reinvesting or trading in
securities, or that does not engage in the business of investing,
owning, holding or trading "investment securities" (defined as "all
securities other than government securities or securities of
majority-owned subsidiaries") the value of which exceeds 40% of the
value of its total assets (excluding government securities, cash or cash
items). The Company intends to implement its business plan in a
manner which will result in the availability of this exception from the
definition of "investment company." Consequently, the Company's
participation in a business or opportunity through the purchase and
sale of investment securities will be limited.
The Company's plan of business may involve changes in its
capital structure, management, control and business, especially if it
consummates a reorganization as discussed above. Each of these areas
is regulated by the Investment Act, in order to protect purchasers of
investment company securities. Since the Company will not register
as an investment company, stockholders will not be afforded these
protections.
Any securities which the Company might acquire in exchange
for its Common Stock will be "restricted securities" within the
meaning of the Securities Act of 1933, as amended (the "Act"). If the
Company elects to resell such securities, such sale cannot proceed
unless a registration statement has been declared effective by the
Securities and Exchange Commission or an exemption from
registration is available. Section 4(1) of the Act, which exempts sales
of securities not involving a distribution, would in all likelihood be
available to permit a private sale. Although the plan of operation does
not contemplate resale of securities acquired, if such a sale were to be
necessary, the Company would be required to comply with the
provisions of the Act to effect such resale.
An acquisition made by the Company may be in an industry
which is regulated or licensed by federal, state or local authorities.
Compliance with such regulations can be expected to be a
time-consuming and expensive process.
Competition
The Company expects to encounter substantial competition in
its efforts to locate attractive opportunities, primarily from business
development companies, venture capital partnerships and corporations,
venture capital affiliates of large industrial and financial companies,
small investment companies, and wealthy individuals. Many of these
entities will have significantly greater experience, resources and
managerial capabilities than the Company and will therefore be in a
better position than the Company to obtain access to attractive
business opportunities. The Company also will experience competition
from other public "blind pool" companies, many of which may have
more funds available than does the Company.
Administrative Offices
The Company currently maintains a mailing address at 4750
Table Mesa Drive, Boulder, Colorado 80303, which is the office
address of its legal counsel. The Company's telephone number is
(303) 442-1021. Other than this mailing address, the Company does
not currently maintain any other office facilities, and does not
anticipate the need for maintaining office facilities at any time in the
foreseeable future. The Company pays no rent or other fees for the
use of this mailing address.
Employees
The Company is a development stage company and currently
has no employees. Management of the Company expects to use
consultants, attorneys and accountants as necessary, and does not anti-
cipate a need to engage any full-time employees so long as it is
seeking and evaluating business opportunities. The need for em-
ployees and their availability will be addressed in connection with the
decision whether or not to acquire or participate in specific business
opportunities. Although there is no current plan with respect to its
nature or amount, remuneration may be paid to or accrued for the
benefit of, the Company's sole officerprior to, or in conjunction with,
the completion of a business acquisition. The Company's sole
shareholder has received a fee of $2,000 for organizing the
corporation, seeking merger candidates and evaluating these
candidates. See "Executive Compensation" and under "Certain
Relationships and Related Transactions."
Risk Factors
1. Conflicts of Interest. Certain conflicts of interest exist
between the Company and its sole officer and director. He has other
business interests to which he devotes his attention, and he may be
expected to continue to do so although management time should be
devoted to the business of the Company. As a result, conflicts of
interest may arise that can be resolved only through his exercise of
such judgment as is consistent with his fiduciary duties to the
Company. See "Management," and "Conflicts of Interest."
The Company's President and all current shareholders own all
of the issued and outstanding stock of another corporation (Boulder
Capital Opportunities, Inc.) which is a shell company formed April 22,
1996. The Form 10-SB registration statement of Boulder Capital
Opportunities, Inc., became effective on or about July 28, 1996. (See
"Item 5. Directors, Executive Officers, Promoters, and Control Persons
- - - Other Blind Pool Activities.") Its shareholders have signed a letter
of intent relating to a sale of a controlling interest in that company,
and have received a non-refundable deposit, but closing of the sales
transaction has not yet occurred. The prospective purchaser has not
yet identified a merger candidate for Boulder Capital Opportunities,
Inc. Thus, the Company may be in competition with Boulder Capital
Opportunities, Inc., in seeking merger candidates.
The Company's President has formed Boulder Capital
Opportunities III, Inc., which is a shell company with the same capital
structure and business plan as Boulder Capital Opportunities, Inc., and
the Company. He may also elect, in the future, to form one or more
additional public shell companies with a business plan similar or
identical to that of the Company. Any such additional shell
companies would also be in direct competition with the Company for
available business opportunities. (See Item 5 - "Directors, Executive
Officers, Promoters and Control Persons - Conflicts of Interest.")
It is anticipated that Company's President may actively
negotiate or otherwise consent to the purchase of a portion of his
common stock as a condition to, or in connection with, a proposed
merger or acquisition transaction. In this process, the Company's
President may consider his own personal pecuniary benefit rather than
the best interests of other Company shareholders, and the other
Company shareholders are not expected to be afforded the opportunity
to approve or consent to any particular stock buy-out transaction. See
"Conflicts of Interest."
2. Possible Need for Additional Financing. The Company has very
limited funds, and such funds may not be adequate to take advantage
of any available business opportunities. Even if the Company's funds
prove to be sufficient to acquire an interest in, or complete a
transaction with, a business opportunity, the Company may not have
enough capital to exploit the opportunity. The ultimate success of the
Company may depend upon its ability to raise additional capital. The
Company has not investigated the availability, source, or terms that
might govern the acquisition of additional capital and will not do so
until it determines a need for additional financing. If additional
capital is needed, there is no assurance that funds will be available
from any source or, if available, that they can be obtained on terms
acceptable to the Company. If not available, the Company's opera-
tions will be limited to those that can be financed with its modest
capital.
3. Regulation of Penny Stocks. The Company's securities, when
available for trading, will be subject to a Securities and Exchange
Commission rule that imposes special sales practice requirements upon
broker-dealers who sell such securities to persons other than
established customers or accredited investors. For purposes of the
rule, the phrase "accredited investors" means, in general terms,
institutions with assets in excess of $5,000,000, or individuals having
a net worth in excess of $1,000,000 or having an annual income that
exceeds $200,000 (or that, when combined with a spouse's income,
exceeds $300,000). For transactions covered by the rule, the broker-
dealer must make a special suitability determination for the purchaser
and receive the purchaser's written agreement to the transaction prior
to the sale. Consequently, the rule may affect the ability of broker-
dealers to sell the Company's securities and also may affect the ability
of purchasers in this offering to sell their securities in any market that
might develop therefor.
In addition, the Securities and Exchange Commission has
adopted a number of rules to regulate "penny stocks." Such rules
include Rules 3a51-1, 15g-1, 15g-2, 15g-3, 15g-4, 15g-5, 15g-6, and
15g-7 under the Securities Exchange Act of 1934, as amended.
Because the securities of the Company may constitute "penny stocks"
within the meaning of the rules, the rules would apply to the
Company and to its securities. The rules may further affect the ability
of owners of Shares to sell the securities of the Company in any
market that might develop for them.
Shareholders should be aware that, according to Securities and
Exchange Commission Release No. 34-29093, the market for penny
stocks has suffered in recent years from patterns of fraud and abuse.
Such patterns include (i) control of the market for the security by one
or a few broker-dealers that are often related to the promoter or issuer;
(ii) manipulation of prices through prearranged matching of purchases
and sales and false and misleading press releases; (iii) "boiler room"
practices involving high-pressure sales tactics and unrealistic price
projections by inexperienced sales persons; (iv) excessive and
undisclosed bid-ask differentials and markups by selling broker-
dealers; and (v) the wholesale dumping of the same securities by
promoters and broker-dealers after prices have been manipulated to a
desired level, along with the resulting inevitable collapse of those
prices and with consequent investor losses. The Company's
management is aware of the abuses that have occurred historically in
the penny stock market. Although the Company does not expect to
be in a position to dictate the behavior of the market or of broker-
dealers who participate in the market, management will strive within
the confines of practical limitations to prevent the described patterns
from being established with respect to the Company's securities.
4. No Operating History. The Company was formed in August
of 1996 for the purpose of registering its common stock under the
1934 Act and acquiring a business opportunity. The Company has no
operating history, revenues from operations, or assets other than cash
from private sales of stock. The Company faces all of the risks of a
new business and the special risks inherent in the investigation,
acquisition, or involvement in a new business opportunity. The
Company must be regarded as a new or "start-up" venture with all of
the unforeseen costs, expenses, problems, and difficulties to which
such ventures are subject.
5. No Assurance of Success or Profitability. There is no
assurance that the Company will acquire a favorable business op-
portunity. Even if the Company should become involved in a business
opportunity, there is no assurance that it will generate revenues or
profits, or that the market price of the Company's Common Stock will
be increased thereby.
6. Possible Business - Not Identified and Highly Risky. The
Company has not identified and has no commitments to enter into or
acquire a specific business opportunity and therefore can disclose the
risks and hazards of a business or opportunity that it may enter into
in only a general manner, and cannot disclose the risks and hazards of
any specific business or opportunity that it may enter into. An
investor can expect a potential business opportunity to be quite risky.
The Company's acquisition of or participation in a business
opportunity will likely be highly illiquid and could result in a total
loss to the Company and its stockholders if the business or
opportunity proves to be unsuccessful. See Item 1 "Description of
Business."
7. Type of Business Acquired. The type of business to be
acquired may be one that desires to avoid effecting its own public
offering and the accompanying expense, delays, uncertainties, and
federal and state requirements which purport to protect investors.
Because of the Company's limited capital, it is more likely than not
that any acquisition by the Company will involve other parties whose
primary interest is the acquisition of control of a publicly traded
company. Moreover, any business opportunity acquired may be
currently unprofitable or present other negative factors.
8. Impracticability of Exhaustive Investigation. The Company's
limited funds and the lack of full-time management will likely make
it impracticable to conduct a complete and exhaustive investigation
and analysis of a business opportunity before the Company commits
its capital or other resources thereto. Management decisions,
therefore, will likely be made without detailed feasibility studies,
independent analysis, market surveys and the like which, if the Com-
pany had more funds available to it, would be desirable. The
Company will be particularly dependent in making decisions upon
information provided by the promoter, owner, sponsor, or others
associated with the business opportunity seeking the Company's
participation. A significant portion of the Company's available funds
may be expended for investigative expenses and other expenses related
to preliminary aspects of completing an acquisition transaction,
whether or not any business opportunity investigated is eventually
acquired.
9. Lack of Diversification. Because of the limited financial
resources that the Company has, it is unlikely that the Company will
be able to diversify its acquisitions or operations. The Company's
probable inability to diversify its activities into more than one area
will subject the Company to economic fluctuations within a particular
business or industry and therefore increase the risks associated with
the Company's operations.
10. Possible Reliance upon Unaudited Financial Statements. The
Company generally will require audited financial statements from
companies that it proposes to acquire. No assurance can be given,
however, that audited financials will be available to the Company. In
cases where audited financials are unavailable, the Company will have
to rely upon unaudited information received from target companies'
management that has not been verified by outside auditors. The lack
of the type of independent verification which audited financial
statements would provide, increases the risk that the Company, in
evaluating an acquisition with such a target company, will not have
the benefit of full and accurate information about the financial
condition and operating history of the target company. This risk
increases the prospect that the acquisition of such a company might
prove to be an unfavorable one for the Company or the holders of the
Company's securities.
Moreover, the Company will be subject to the reporting
provisions of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and thus will be required to furnish certain
information about significant acquisitions, including audited financial
statements for any business that it acquires. Consequently, acquisition
prospects that do not have, or are unable to provide reasonable
assurances that they will be able to obtain, the required audited
statements would not be considered by the Company to be appropriate
for acquisition so long as the reporting requirements of the Exchange
Act are applicable. Should the Company, during the time it remains
subject to the reporting provisions of the Exchange Act, complete an
acquisition of an entity for which audited financial statements prove
to be unobtainable, the Company would be exposed to enforcement
actions by the Securities and Exchange Commission (the
"Commission") and to corresponding administrative sanctions,
including permanent injunctions against the Company and its
management. The legal and other costs of defending a Commission
enforcement action are likely to have material, adverse consequences
for the Company and its business. The imposition of administrative
sanctions would subject the Company to further adverse consequences.
In addition, the lack of audited financial statements would
prevent the securities of the Company from becoming eligible for
listing on NASDAQ, the automated quotation system sponsored by the
National Association of Securities Dealers, Inc., or on any existing
stock exchange. Moreover, the lack of such financial statements is
likely to discourage broker-dealers from becoming or continuing to
serve as market makers in the securities of the Company. Without
audited financial statements, the Company would almost certainly be
unable to offer securities under a registration statement pursuant to the
Securities Act of 1933, and the ability of the Company to raise capital
would be significantly limited until such financial statements were to
become available.
11. Other Regulation. An acquisition made by the Company may
be of a business that is subject to regulation or licensing by federal,
state, or local authorities. Compliance with such regulations and
licensing can be expected to be a time-consuming, expensive process
and may limit other investment opportunities of the Company.
12. Dependence upon Management; Limited Participation of
Management. The Company currently has a single individual who is
serving as its sole officer and director. The Company will be heavily
dependent upon his skills, talents, and abilities to implement its
business plan, and may, from time to time, find that the inability of
the sole officer and director to devote his full time attention to the
business of the Company results in a delay in progress toward
implementing its business plan. Furthermore, since one individual is
serving as the sole officer and director of the Company, it will be
entirely dependent upon his experience in seeking, investigating, and
acquiring a business and in making decisions regarding the Company's
operations. See "Management." Because investors will not be able to
evaluate the merits of possible business acquisitions by the Company,
they should critically assess the information concerning the Company's
sole officer and director.
13. Lack of Continuity in Management. The Company does not
have an employment agreement with its sole officer and director, and
as a result, there is no assurance that he will continue to manage the
Company in the future. In connection with acquisition of a business
opportunity, it is likely the current officer and director of the
Company may resign. A decision to resign will be based upon the
identity of the business opportunity and the nature of the transaction,
and is likely to occur without the vote or consent of the stockholders
of the Company.
14. Indemnification of Officers and Directors. The Company's
Articles of Incorporation provide for the indemnification of its
directors, officers, employees, and agents, under certain circumstances,
against attorney's fees and other expenses incurred by them in any
litigation to which they become a party arising from their association
with or activities on behalf of the Company. The Company will also
bear the expenses of such litigation for any of its directors, officers,
employees, or agents, upon such person's promise to repay the
Company therefor if it is ultimately determined that any such person
shall not have been entitled to indemnification. This indemnification
policy could result in substantial expenditures by the Company which
it will be unable to recoup.
15. Director's Liability Limited. The Company's Articles of
Incorporation exclude personal liability of its directors to the Company
and its stockholders for monetary damages for breach of fiduciary
duty except in certain specified circumstances. Accordingly, the
Company will have a much more limited right of action against its
directors than otherwise would be the case. This provision does not
affect the liability of any director under federal or applicable state
securities laws.
16. Dependence upon Outside Advisors. To supplement the
business experience of its sole officer and director, the Company may
be required to employ accountants, technical experts, appraisers,
attorneys, or other consultants or advisors. The selection of any such
advisors will be made by the Company's President without any input
from stockholders. Furthermore, it is anticipated that such persons
may be engaged on an "as needed" basis without a continuing
fiduciary or other obligation to the Company. In the event the
President of the Company considers it necessary to hire outside
advisors, he may elect to hire persons who are affiliates, if they are
able to provide the required services.
17. Leveraged Transactions. There is a possibility that any
acquisition of a business opportunity by the Company may be lever-
aged, i.e., the Company may finance the acquisition of the business
opportunity by borrowing against the assets of the business oppor-
tunity to be acquired, or against the projected future revenues or
profits of the business opportunity. This could increase the
Company's exposure to larger losses. A business opportunity acquired
through a leveraged transaction is profitable only if it generates
enough revenues to cover the related debt and expenses. Failure to
make payments on the debt incurred to purchase the business
opportunity could result in the loss of a portion or all of the assets
acquired. There is no assurance that any business opportunity
acquired through a leveraged transaction will generate sufficient
revenues to cover the related debt and expenses.
18. Competition. The search for potentially profitable business
opportunities is intensely competitive. The Company expects to be at
a disadvantage when competing with many firms that have
substantially greater financial and management resources and capa-
bilities than the Company. These competitive conditions will exist in
any industry in which the Company may become interested.
19. No Foreseeable Dividends. The Company has not paid di-
vidends on its Common Stock and does not anticipate paying such
dividends in the foreseeable future.
20. Loss of Control by Present Management and Stockholders.
The Company may consider an acquisition in which the Company
would issue as consideration for the business opportunity to be
acquired an amount of the Company's authorized but unissued
Common Stock that would, upon issuance, represent the great majority
of the voting power and equity of the Company. The result of such
an acquisition would be that the acquired company's stockholders and
management would control the Company, and the Company's
management could be replaced by persons unknown at this time.
Such a merger would result in a greatly reduced percentage of
ownership of the Company by its current shareholders. In addition, the
Company's President could sell his control block of stock at a
premium price to the acquired company's stockholders.
21. No Public Market Exists. There is no public market for the
Company's common stock, and no assurance can be given that a
market will develop or that a shareholder ever will be able to liquidate
his investment without considerable delay, if at all. If a market should
develop, the price may be highly volatile. Factors such as those
discussed in this "Risk Factors" section may have a significant impact
upon the market price of the securities offered hereby. Owing to the
low price of the securities, many brokerage firms may not be willing
to effect transactions in the securities. Even if a purchaser finds a
broker willing to effect a transaction in these securities, the
combination of brokerage commissions, state transfer taxes, if any, and
any other selling costs may exceed the selling price. Further, many
lending institutions will not permit the use of such securities as
collateral for any loans.
22. Rule 144 Sales. All of the outstanding shares of Common
Stock held by present stockholders are "restricted securities" within the
meaning of Rule 144 under the Securities Act of 1933, as amended.
As restricted shares, these shares may be resold only pursuant to an
effective registration statement or under the requirements of Rule 144
or other applicable exemptions from registration under the Act and as
required under applicable state securities laws. Rule 144 provides in
essence that a person who has held restricted securities for a
prescribed period may, under certain conditions, sell every three
months, in brokerage transactions, a number of shares that does not
exceed the greater of 1.0% of a company's outstanding common stock
or the average weekly trading volume during the four calendar weeks
prior to the sale. As a result of revisions to Rule 144 which will
become effective on or about April 29, 1997, there will be no limit on
the amount of restricted securities that may be sold by a nonaffiliate
after the restricted securities have been held by the owner for a period
of two years. A sale under Rule 144 or under any other exemption
from the Act, if available, or pursuant to subsequent registrations of
shares of Common Stock of present stockholders, may have a
depressive effect upon the price of the Common Stock in any market
that may develop. Of the total 1,010,00 shares of common stock held
by present stockholders of the Company, 710,000 shares which were
issued pursuant to Rule 701, became available for resale under Rule
144, on or about October 28, 1996, and the remaining 300,000 shares
will become available for resale starting in August, 1997.
23. Blue Sky Considerations. Because the securities registered
hereunder have not been registered for resale under the blue sky laws
of any state, the holders of such shares and persons who desire to
purchase them in any trading market that might develop in the future,
should be aware that there may be significant state blue-sky law
restrictions upon the ability of investors to sell the securities and of
purchasers to purchase the securities. Some jurisdictions may not
under any circumstances allow the trading or resale of blind-pool or
"blank-check" securities. Accordingly, investors should consider the
secondary market for the Company's securities to be a limited one.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR
PLAN OF OPERATIONS.
Liquidity and Capital Resources
The Company remains in the development stage and, since
inception, has experienced no significant change in liquidity or capital
resources or stockholder's equity other than the receipt of net cash
proceeds in the amount of $8,250, from its inside capitalization funds.
The Company's balance sheet as of August 31, 1996, reflects a current
asset value of $4,250, plus subscriptions receivable of $4,000 (which
were received subsequent to August 31, 1996), and a total asset value
of $36,177 in the form of cash and capitalized organizational costs.
The Company will carry out its plan of business as discussed
above. The Company cannot predict to what extent its liquidity and
capital resources will be diminished prior to the consummation of a
business combination or whether its capital will be further depleted by
the operating losses (if any) of the business entity which the Company
may eventually acquire.
Results of Operations
During the period from August 8, 1996 (inception) through
August 31, 1996, the Company has engaged in no significant
operations other than organizational activities, acquisition of capital
and preparation for registration of its securities under the Securities
Exchange Act of 1934, as amended. No revenues were received by
the Company during this period.
For the current fiscal year, the Company anticipates incurring
a loss as a result of organizational expenses, expenses associated with
registration under the Securities Exchange Act of 1934, and expenses
associated with locating and evaluating acquisition candidates. The
Company anticipates that until a business combination is completed
with an acquisition candidate, it will not generate revenues other than
interest income, and may continue to operate at a loss after completing
a business combination, depending upon the performance of the
acquired business.
Need for Additional Financing
The Company believes that its existing capital will be
sufficient to meet the Company's cash needs, including the costs of
compliance with the continuing reporting requirements of the
Securities Exchange Act of 1934, as amended, for a period of
approximately one year. Accordingly, in the event the Company is
able to complete a business combination during this period, it
anticipates that its existing capital will be sufficient to allow it to
accomplish the goal of completing a business combination. There is
no assurance, however, that the available funds will ultimately prove
to be adequate to allow it to complete a business combination, and
once a business combination is completed, the Company's needs for
additional financing are likely to increase substantially.
No commitments to provide additional funds have been made
by management or other stockholders. Accordingly, there can be no
assurance that any additional funds will be available to the Company
to allow it to cover its expenses.
Irrespective of whether the Company's cash assets prove to be
inadequate to meet the Company's operational needs, the Company
might seek to compensate providers of services by issuances of stock
in lieu of cash. For information as to the Company's policy in regard
to payment for consulting services, see "Certain Relationships and
Transactions."
Item 3. Description of Property.
The Company does not currently maintain an office or any
other facilities. It does currently maintain a mailing address at 4750
Table Mesa Drive, Boulder, Colorado 80303, which is the office
address of its legal counsel. The Company pays no rent for the use
of this mailing address. The Company does not believe that it will
need to maintain an office at any time in the foreseeable future in
order to carry out its plan of operations described herein. The
Company's telephone number is (303) 442-1021.
Item 4. Security Ownership of Certain Beneficial Owners and
Management.
The following table sets forth, as of the date of this
Registration Statement, the number of shares of Common Stock owned
of record and beneficially by executive officers, directors and persons
who hold 5.0% or more of the outstanding Common Stock of the
Company. Also included are the shares held by all executive officers
and directors as a group.
<TABLE>
<S>
<CAPTION>
Name and Address Number of Percent of
Shares Owned Class Owned
Beneficially
<C> <C> <C>
Robert Soehngen(1)
2434 Vine Place
Boulder, Colorado 80304 660,000 65.35%
All directors and executive
officers as a group (1 person) 660,000 65.35%
</TABLE>
(1) The person listed is the sole officer and director of the Company.
Item 5. Directors, Executive Officers, Promoters and Control Persons.
The directors and executive officers currently serving the
Company are as follows:
<TABLE>
<S>
<CAPTION>
Name Age Positions Held and Tenure
<C> <C> <C>
Robert Soehngen 46 President and Director since
August, 1996
</TABLE>
The director named above will serve until the first annual
meeting of the Company's stockholders. Thereafter, directors will be
elected for one-year terms at the annual stockholders' meeting.
Officers will hold their positions at the pleasure of the board of
directors, absent any employment agreement, of which none currently
exists or is contemplated. There is no arrangement or understanding
between the sole director and officer of the Company and any other
person pursuant to which any director or officer was or is to be
selected as a director or officer.
The sole director and officer of the Company will devote his
time to the Company's affairs on an "as needed" basis. As a result,
the actual amount of time which he will devote to the Company's
affairs is unknown and is likely to vary substantially from month to
month.
Biographical Information
Robert Soehngen. Mr. Soehngen, who is the Company's
President, has served as the sole officer and director of the Company
since its inception.
Mr. Soehngen is currently self-employed as a business
consultant, providing consulting services relating to mergers and
acquisitions and is engaged in the real estate business as a licensed
broker associate with Century 21. From 1980 to 1995 he was a
partner in Sawyer/Soehngen Partnership, a real estate partnership
which owned commercial property in downtown Boulder, Colorado.
Mr. Soehngen has also been engaged in the securities business in
various capacities from 1975 to the present. From 1984 through 1990
he was President of National Securities Network, Inc. From 1991
through 1994 he was Director of Corporate Finance for Spencer
Edwards, Inc., Nutmeg Securities, Inc., and Brookstreet Securities
Corporation, and from 1994 through 1995 was an Account Executive
with Toluca Pacific Securities. From 1989 through 1995, Mr.
Soehngen was President of National Securities Holding Corporation
and in that capacity maintained the books and records of a publicly-
held subsidiary corporation until it was merged with an operating
business in September 1995. Mr. Soehngen graduated from the
University of Colorado in 1972, with a B.S. in Finance.
Indemnification of Officers and Directors
As permitted by Colorado law, the Company's Articles of In-
corporation provide that the Company will indemnify its directors and
officers against expenses and liabilities they incur to defend, settle, or
satisfy any civil or criminal action brought against them on account
of their being or having been Company directors or officers unless, in
any such action, they are adjudged to have acted with gross negligence
or willful misconduct. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that, in the opinion of the
Securities and Exchange Commission, such indemnification is against
public policy as expressed in that Act and is, therefore, unenforceable.
Exclusion of Liability
Pursuant to the Colorado Business Corporation Act, the
Company's Articles of Incorporation exclude personal liability for its
directors for monetary damages based upon any violation of their
fiduciary duties as directors, except as to liability for any breach of the
duty of loyalty, acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, acts in violation
of Section 7-106-401 of the Colorado Business Corporation Act, or
any transaction from which a director receives an improper personal
benefit. This exclusion of liability does not limit any right which a
director may have to be indemnified and does not affect any director's
liability under federal or applicable state securities laws.
Other Public Shell Activities
The Company's President has also recently formed two other
shell companies, Boulder Capital Opportunities, Inc., and Boulder
Capital Opportunities III, Inc. Each of the persons who is currently
a shareholder in the Company is also a shareholder in these other shell
companies.
Boulder Capital Opportunities, Inc. was formed April 22,
1996, and filed a registration statement on Form 10-SB which became
effective on or about July 28, 1996. The shareholders of Boulder
Capital Opportunities, Inc. have signed a letter of intent and received
a non-refundable deposit for a transaction involving the sale of a
controlling interest to a third party in order to facilitate a merger
transaction. The closing of a sale of a controlling interest was
originally scheduled for December 31, 1996, but has been postponed
pending identification of a merger candidate by the prospective
purchaser. No closing date is currently scheduled. There is not
currently a market for resale of the outstanding shares of Boulder
Capital Opportunities, Inc.
Boulder Capital Opportunities III, Inc. was incorporated under
the laws of the State of Colorado on November 27, 1996, and each of
the persons who is a shareholder of the Company is also a shareholder
of Boulder Capital Opportunities III, Inc. Robert Soehngen, who is
the President and sole director of the Company, is also the President
and sole director of Boulder Capital Opportunities III, Inc. Boulder
Capital Opportunities III, Inc. intends to file a registration statement
on Form 10-SB on or before March 31, 1997.
Conflicts of Interest
The sole officer and director of the Company will devote only
a small portion of his time to the affairs of the Company, estimated
to be no more than approximately 10 hours per month. There will be
occasions when the time requirements of the Company's business
conflict with the demands of his other business and investment
activities. Such conflicts may require that the Company attempt to
employ additional personnel. There is no assurance that the services
of such persons will be available or that they can be obtained upon
terms favorable to the Company.
The Company's President may elect, in the future, to form one
or more additional shell companies with a business plan similar or
identical to that of the Company. Any such additional shell
companies would also be in direct competition with the Company for
available business opportunities.
There is no procedure in place which would allow Mr.
Soehngen to resolve potential conflicts in an arms-length fashion.
Accordingly, he will be required to use his discretion to resolve them
in a manner which he considers appropriate.
The Company's sole officer and director may actively
negotiate or otherwise consent to the purchase of a portion of his
common stock as a condition to, or in connection with, a proposed
merger or acquisition transaction. It is anticipated that a substantial
premium over the initial cost of such shares may be paid by the
purchaser in conjunction with any sale of shares by the Company's
officer and director which is made as a condition to, or in connection
with, a proposed merger or acquisition transaction. The fact that a
substantial premium may be paid to the Company's sole officer and
director to acquire his shares creates a potential conflict of interest for
him in satisfying his fiduciary duties to the Company and its other
shareholders. Even though such a sale could result in a substantial
profit to him, he would be legally required to make the decision based
upon the best interests of the Company and the Company's other
shareholders, rather than his own personal pecuniary benefit.
Item 6. Executive Compensation.
At inception of the Company, its sole Director, Robert
Soehngen, received 560,000 shares of Common Stock valued at $0.04
per share in consideration of pre-incorporation services rendered to the
Company related to investigating and developing the Company's
proposed business plan and capital structure, and completion of the
incorporation and organization of the Company. He also received an
additional 100,000 for consideration in the form of $250 cash and
officer services valued at $3,750. Three other persons received a total
of 50,000 shares each, which were valued at $0.04 per share in
consideration of pre-incorporation services rendered to the Company
related to investigating and developing the Company's proposed
business plan and capital structure. Mr. Soehngen also was paid a fee
of $2,000 for services relating to organizing the Company, seeking
merger candidates and evaluating those candidates. No officer or
director has received any other remuneration. Although there is no
current plan in existence, it is possible that the Company will adopt
a plan to pay or accrue compensation to its sole officer and director
for services related to seeking business opportunities and completing
a merger or acquisition transaction. See "Certain Relationships and
Related Transactions." The Company has no stock option, retirement,
pension, or profit-sharing programs for the benefit of directors,
officers or other employees, but the Board of Directors may
recommend adoption of one or more such programs in the future.
Item 7. Certain Relationships and Related Transactions.
Prior to the date of this Registration Statement, the Company
issued to its officer and director, and to other shareholders, a total of
1,010,000 shares of Common Stock for a total of $8,250.00 in cash
and services valued at $28,400. Certificates evidencing the Common
Stock issued by the Company to these persons have all been stamped
with a restrictive legend, and are subject to stop transfer orders by the
Company. For additional information concerning restrictions that are
imposed upon the securities held by current stockholders, and the
responsibilities of such stockholders to comply with federal securities
laws in the disposition of such Common Stock, see "Risk Factors -
Rule 144 Sales."
No officer, director, promoter, or affiliate of the Company has
or proposes to have any direct or indirect material interest in any asset
proposed to be acquired by the Company through security holdings,
contracts, options, or otherwise.
The Company has adopted a policy under which any
consulting or finder's fee that may be paid to a third party for
consulting services to assist management in evaluating a prospective
business opportunity would be paid in stock or in cash. Any such
issuance of stock would be made on an ad hoc basis. Accordingly,
the Company is unable to predict whether or in what amount such a
stock issuance might be made.
Although there is no current plan in existence, it is possible
that the Company will adopt a plan to pay or accrue compensation to
its sole officer and director for services related to seeking business
opportunities and completing a merger or acquisition transaction.
The Company maintains a mailing address at the office of its
legal counsel, but otherwise does not maintain an office. As a result,
it pays no rent and incurs no expenses for maintenance of an office
and does not anticipate paying rent or incurring office expenses in the
future. It is likely that the Company will establish and maintain an
office after completion of a business combination.
Although management has no current plans to cause the
Company to do so, it is possible that the Company may enter into an
agreement with an acquisition candidate requiring the sale of all or a
portion of the Common Stock held by the Company's current
stockholders to the acquisition candidate or principals thereof, or to
other individuals or business entities, or requiring some other form of
payment to the Company's current stockholders, or requiring the
future employment of specified officers and payment of salaries to
them. It is more likely than not that any sale of securities by the
Company's current stockholders to an acquisition candidate would be
at a price substantially higher than that originally paid by such
stockholders. Any payment to current stockholders in the context of
an acquisition involving the Company would be determined entirely
by the largely unforeseeable terms of a future agreement with an
unidentified business entity.
Item 8. Description of Securities.
Common Stock
The Company's Articles of Incorporation authorize the issu-
ance of 100,000,000 shares of Common Stock. Each record holder of
Common Stock is entitled to one vote for each share held on all
matters properly submitted to the stockholders for their vote.
Cumulative voting for the election of directors is not permitted by the
Articles of Incorporation.
Holders of outstanding shares of Common Stock are entitled
to such dividends as may be declared from time to time by the Board
of Directors out of legally available funds; and, in the event of
liquidation, dissolution or winding up of the affairs of the Company,
holders are entitled to receive, ratably, the net assets of the Company
available to stockholders after distribution is made to the preferred
stockholders, if any, who are given preferred rights upon liquidation.
Holders of outstanding shares of Common Stock have no preemptive,
conversion or redemptive rights. All of the issued and outstanding
shares of Common Stock are, and all unissued shares when offered
and sold will be, duly authorized, validly issued, fully paid, and
nonassessable. To the extent that additional shares of the Company's
Common Stock are issued, the relative interests of then existing
stockholders may be diluted.
Preferred Stock
The Company's Articles of Incorporation authorize the issu-
ance of 10,000,000 shares of preferred stock. The Board of Directors
of the Company is authorized to issue the preferred stock from time
to time in series and is further authorized to establish such series, to
fix and determine the variations in the relative rights and preferences
as between series, to fix voting rights, if any, for each series, and to
allow for the conversion of preferred stock into Common Stock. No
preferred stock has been issued by the Company. The Company anti-
cipates that preferred stock may be utilized in making acquisitions.
Transfer Agent
The Company is currently serving as its own transfer agent,
and plans to continue to serve in that capacity until such time as
management believes it is necessary or appropriate to employ an
independent transfer agent in order to facilitate the creation of a public
trading market for the Company's securities. Since the Company does
not currently expect any public market to develop for its securities
until after it has completed a business combination, it does not
currently anticipate that it will seek to employ an independent transfer
agent until it has completed such a transaction.
Reports to Stockholders
The Company plans to furnish its stockholders with an annual
report for each fiscal year containing financial statements audited by
its independent certified public accountants. In the event the
Company enters into a business combination with another company,
it is the present intention of management to continue furnishing annual
reports to stockholders. Additionally, the Company may, in its sole
discretion, issue unaudited quarterly or other interim reports to its
stockholders when it deems appropriate. The Company intends to
comply with the periodic reporting requirements of the Securities
Exchange Act of 1934 for so long as it is subject to those
requirements.
PART II
Item 1. Market Price and Dividends on the Registrant's Common
Equity and Other Shareholder Matters
No public trading market exists for the Company's securities
and all of its outstanding securities are restricted securities as defined
in Rule 144. There were nine (9) holders of record of the Company's
common stock on August 31, 1996. No dividends have been paid to
date and the Company's Board of Directors does not anticipate paying
dividends in the foreseeable future.
Item 2. Legal Proceedings
The Company is not a party to any pending legal proceedings,
and no such proceedings are known to be contemplated.
No director, officer or affiliate of the Company, and no owner
of record or beneficial owner of more than 5.0% of the securities of
the Company, or any associate of any such director, officer or security
holder is a party adverse to the Company or has a material interest
adverse to the Company in reference to pending litigation.
Item 3. Changes in and Disagreements with Accountants.
Not applicable.
Item 4. Recent Sales of Unregistered Securities.
Since August 8, 1996 (the date of the Company's formation),
the Company has sold its Common Stock to the persons listed in the
table below in transactions summarized as follows:
<TABLE>
<S>
<CAPTION>
Name Date of Shares Aggregate Purchase
Sale Purchase Price
Price per Share
<C> <C> <C> <C> <C>
Robert Soehngen 08/8/96 560,000 $22,400.00(1) $0.04
Gary S. Joiner 08/8/96 50,000 $ 2,000.00(2) $0.04
Grant W. Peck 08/8/96 50,000 $2,000.00(2) $0.04
Dean F. Sessions 08/8/96 50,000 $2,000.00(2) $0.04
Robert Soehngen 08/8/96 100,000 $4,000.00(3) $0.04
Thomas Soehngen 08/31/96 40,000 $1,600.00 $0.04
John F. O'Neil 08/31/96 30,000 $1,200.00 $0.04
Douglas L. Ray 08/31/96 30,000 $1,200.00 $0.04
Steven C. Signer 09/30/96 50,000 $2,000.00 $0.04
Dev K. Mahanti 09/30/96 50,000 $2,000.00 $0.04
</TABLE>
(1) Consideration consisted of pre-incorporation consulting services
rendered to the Registrant related to investigating and developing the
Registrant's proposed business plan and capital structure and
completing the organization and incorporation of the Registrant.
(2) Consideration consisted of pre-incorporation consulting services
rendered to the Registrant related to investigating and developing the
Registrant's proposed business plan and capital structure.
(3) Consideration consisted of cash in the amount of $250 and services
valued at $3,750.00.
Each of the sales listed above was made for cash or services.
All of the listed sales were made in reliance upon the exemption from
registration offered by Section 4(2) of the Securities Act of 1933, as
amended. Based upon Purchaser Questionnaires completed by each
of the subscribers and the pre-existing relationship between the
subscribers of the Company's sole officer and director, the Company
had reasonable grounds to believe immediately prior to making an
offer to the private investors, and did in fact believe, when such
subscriptions were accepted, that such purchasers (1) were purchasing
for investment and not with a view to distribution, and (2) had such
knowledge and experience in financial and business matters that they
were capable of evaluating the merits and risks of their investment and
were able to bear those risks. The purchasers had access to pertinent
information enabling them to ask informed questions. The shares
were issued without the benefit of registration. An appropriate
restrictive legend is imprinted upon each of the certificates
representing such shares, and stop-transfer instructions have been
entered in the Company's transfer records. All such sales were
effected without the aid of underwriters, and no sales commissions
were paid.
Item 5. Indemnification of Directors and Officers
The Articles of Incorporation and the Bylaws of the Company,
filed as Exhibits 3.1 and 3.2, respectively, provide that the Company
will indemnify its officers and directors for costs and expenses
incurred in connection with the defense of actions, suits, or
proceedings where the officer or director acted in good faith and in a
manner he reasonably believed to be in the Company's best interest
and is a party by reason of his status as an officer or director, absent
a finding of negligence or misconduct in the performance of duty.<PAGE>
BOULDER CAPITAL OPPORTUNITIES
II, INC.
(A DEVELOPMENT STAGE COMPANY)
FINANCIAL STATEMENTS
AS OF AUGUST 31, 1996
The following financial statements include a balance sheet as of
August 31, 1996, and a statement of operations for the period from
August 8, 1996, (inception) through August 31, 1996.<PAGE>
BOULDER CAPITAL OPPORTUNITIES
II, INC.
(A Development Stage Company)
Index to Financial Statements
Report of Independent Auditor's Report i
Balance Sheet ii
Statement of Operations iii
Statement of Changes in
Stockholders' Equity iv
Statement of Cash Flows v
Notes to Financial Statements vi<PAGE>
BOULDER CAPITAL OPPORTUNITIES
II, INC.
(A Development Stage Company)
Report of Independent Auditors
Shareholders and Board of Directors
Boulder Capital Opportunities II, Inc.
Boulder, Colorado
We have audited the accompanying balance sheet of Boulder Capital
Opportunities II, Inc. (a development stage Company) as of August
31, 1996, and the related statements of operations, stockholders'
equity, and cash flows for the period from August 8, 1996 (inception)
to August 31, 1996. These financial statements are the responsibility
of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates by
management, as well as evaluating the overall financial statement
presentation. We believe that our audit provides a reasonable basis for
our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of Boulder Capital
Opportunities II, Inc. (a development state Company) as of August 31,
1996, and the results of operations, and its cash flows for the period
from August 8, 1996 (inception) to August 31, 1996, in conformity
with generally accepted accounting principles.
/s/
Stark Tinter & Associates, LLC
Englewood, Colorado
October 25, 1996
i<PAGE>
BOULDER CAPITAL OPPORTUNITIES II, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET AS OF AUGUST 31, 1996
<TABLE>
<CAPTION>
<S> <C>
CURRENT ASSETS
Cash 4,250
TOTAL CURRENT
ASSETS 4,250
ORGANIZATIONAL COSTS 28,400
less accumulated amortization 473
SUBSCRIPTIONS RECEIVABLE 4,000
TOTAL ASSETS 36,177
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable 2,225
TOTAL CURRENT
LIABILITIES 2,225
STOCKHOLDERS' EQUITY
Preferred Stock, no par value,
10,000,000 shares authorized -
Common Stock, no par value,
100,000,000 shares authorized,
1,010,000 shares issued and
outstanding. 40,400
Deficit accumulated
during the
development stage (6,448)
</TABLE>
ii<PAGE>
BOULDER CAPITAL OPPORTUNITIES II, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF OPERATIONS
FOR THE PERIOD AUGUST 8, 1996 (Inception) to
AUGUST 31, 1996
<TABLE>
<CAPTION>
<S> <C>
REVENUE -
COSTS AND EXPENSES:
General and administrative 5,975
Amortization 473
NET LOSS (6,448)
PER SHARE INFORMATION:
Weighted average number of
common shares outstanding 1,010,000
NET LOSS PER SHARE .006
</TABLE>
iii<PAGE>
BOULDER CAPITAL OPPORTUNITIES II, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE PERIOD FROM AUGUST 8, 1996 (INCEPTION)
THROUGH AUGUST 31, 1996
<TABLE>
<CAPTION>
<S>
Deficit
Accumulated
During the
Common Stock Development
Shares Amount Stage Total
<C> <C> <C> <C> <C>
Shares issued at
inception for services
at $0.04 per share 710,000 28,400 28,400
Shares issued for
cash at $0.0025
per share 100,000 4,000 4,000
Shares issued for
cash at $0.04
per share 100,000 4,000 4,000
Shares subscribed
at $0.04 per share 100,000 4,000 4,000
NET LOSS FOR THE
PERIOD - - (6,448) (6,448)
TOTAL 1,010,000 40,400 (6,448) (6,448)
</TABLE>
iv<PAGE>
BOULDER CAPITAL OPPORTUNITIES II, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS FOR THE PERIOD FROM
AUGUST 8, 1996 (INCEPTION) TO AUGUST 31, 1996
<TABLE>
<CAPTION>
<S>
<C> <C>
CASH FLOWS FROM
OPERATING ACTIVITIES -
CASH FLOWS FROM
INVESTING ACTIVITIES -
CASH FLOWS FROM
FINANCING ACTIVITIES:
Capital contributions 4,250
NET CASH PROVIDED BY
FINANCING ACTIVITIES 4,250
NET INCREASE IN CASH AND
CASH EQUIVALENTS 4,250
BEGINNING CASH AND CASH
EQUIVALENTS -
ENDING CASH AND CASH
EQUIVALENTS 4,250
RECONCILIATION OF NET LOSS TO NET CASH USED IN OPERATING
ACTIVITIES:
Net loss 6,448
Stock issued for services (3,750)
Amortization (473)
Increase in accounts payable (2,225)
Net cash used in operating
activities -
</TABLE>
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND
FINANCING ACTIVITIES:
ACTIVITIES:
On August 8, 1996, professional services capitalized as
organizational costs valued at $28,400 were exchanged for
710,000 shares of common stock.
v<PAGE>
BOULDER CAPITAL OPPORTUNITIES II, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF AUGUST 31, 1996
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization
The Company was incorporated on August 8, 1996, in the State of
Colorado. The Company is in the development stage and its intent is to operate
as a capital market access corporation and to acquire one or more existing
businesses through merger or acquisition. The Company has had no significant
business activity to date. The Company has selected August 31 as its fiscal
year end.
Organizational costs
Organizational costs include costs for professional fees and are
amortized using the straight-line method over five years.
Net loss per share
The net loss per share is computed by dividing the net loss for the
period by the weighted average number of common shares outstanding for the
period.
Estimates
The preparation of the Company's financial statements in conformity
with generally accepted accounting principles requires the Company's
management to make estimates and assumptions that affect the amounts
reported in these financial statements and accompanying notes. Actual results
could differ from those estimates.
2. STOCKHOLDERS' EQUITY
On August 8, 1996, the Company issued 710,000 shares of its no par
value common stock to affiliates for services valued at their fair market value
of $28,400.
On August 8, 1996, the Company issued 100,000 shares of its no par
value common stock to its President at $0.0025 per share for cash of $250 and
at $0.0375 per share in exchange for officer compensation of $3,750, $4,000
in total.
vi<PAGE>
On August 31, 1996, the Company issued 100,000 shares of its no par
value common stock to various investors for $4,000; 100,000 additional shares
remain subscribed for at August 31, 1996. These were collected in September,
1996.
3. RELATED PARTY TRANSACTIONS
At August 31, 1996, the Company owed $2,000 in consulting fees and
$225 in attorney's fees to officers who are shareholders of the Company.
PART III
Item 1. Index to Exhibits
The Exhibits listed below are filed as part of this Registration
Statement.
Exhibit
No. Document
EX-3.(i) Articles of Incorporation
EX-3.(ii) Bylaws
EX-3.(iii) Specimen Stock Certificate
EX-27 Financial Data Schedule
Item 2. Description of Exhibits.
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934,
the registrant caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized.
BOULDER CAPITAL OPPORTUNITIES II, INC.
By: /S/
Robert Soehngen, President and Director
(Principal Executive Officer)
Date: March 21, 1997
<PAGE>
U. S. Securities and Exchange Commission
Washington, D.C. 20549
Form 10-SB/A
GENERAL FORM FOR REGISTRATION OF
SECURITIES OF SMALL
BUSINESS ISSUERS
Under Section 12(b) or (g) of the Securities Exchange Act of 1934
BOULDER CAPITAL OPPORTUNITIES II, INC.
(Name of Small Business Issuer in its charter)
Colorado 84-1341980
(State or other jurisdiction of (I.R.S. Employer ID Number)
incorporation or organization)
4750 Table Mesa Drive, Boulder, Colorado 80303
(Address of principal executive offices) (Zip Code)
Issuer's telephone number: (303) 442-1021
EXHIBIT INDEX
Exhibit Page Number in
No. Document Sequentially Numbered System
EX-3.(i) Articles of Incorporation 43
EX-3.(ii) Bylaws 49
EX-3.(iii) Specimen Stock Certificate 72
EX-27 Financial Data Schedule<PAGE>
EXHIBIT 2.1
ARTICLES OF INCORPORATION
OF
BOULDER CAPITAL OPPORTUNITIES II, INC.
The undersigned, who, if a natural person, is eighteen years of age or
older, hereby establishes a corporation pursuant to the Colorado Business
Corporation Act as amended and adopts the following Articles of Incorporation:
FIRST: The name of the corporation is Boulder Capital Opportunities II,
Inc.
SECOND: The corporation shall have and may exercise all of the
rights, powers and privileges now or hereafter conferred upon corporations
organized under the laws of Colorado. In addition, the corporation may do
everything necessary, suitable or proper for the accomplishment of any of its
corporate purposes. The corporation may conduct part or all of its business in
any part of Colorado, the United States or the world and may hold, purchase,
mortgage, lease and convey real and personal property in any of such places.
THIRD: The aggregate number of shares which the corporation
shall have authority to issue is one hundred ten million (110,000,000) shares of
which a portion shall be common stock and a portion shall be preferred stock,
all as described below.
A. Common Stock.The aggregate number of common shares which
the corporation shall have the authority to issue is one hundred million
(100,000,000), which shares shall be designated "Common Stock." Subject to
all the rights of the Preferred Stock as expressly provided herein, by law or by
the Board of Directors pursuant to this Article, the Common Stock of the
corporation shall possess all such rights and privileges as are afforded to
capital stock by applicable law in the absense of any express grant of rights or
privileges in these Articles of Incorporation, including, but not limited to,
the following rights and privileges:
(a) dividends may be declared and paid or set apart for payment on
the Common Stock out of any assets or funds of the corporation legally
available for the payment of dividends;
(b) the holders of Common Stock shall have unlimited voting rights,
including the right to vote for the election of directors and on all
other
matters requiring stockholder action. Each holder of Common Stock
shall have one vote for each share of Common Stock standing in his
name on the books of the corporation and entitled to vote, except that
in the election of directors each holder of Common Stock shall have as
many votes for each share of Common Stock held by him as there are
directors to be elected and for whose election the holder of Common
Stock has a right to vote. Cumulative voting shall not be permitted in
the election of directors or otherwise.
(c) on the voluntary or involuntary liquidation, dissolution or
winding up of the corporation, and after paying or aduquately providing
for the payment of all of its obligations and amounts payable in
liquidation, dissolution or winding up, and subject to the rights of the
holders of Preferred Stock, if any, the net assets of the corporation
shall
be distributed pro rata to the holders of the Common Stock.
B. Preferred Stock.The aggregate number of preferred shares which
this corporation shall have the authority to issue is ten million (10,000,000)
shares, each with no par value, which shares shall be designated "Preferred
Stock." Shares of Preferred Stock may be issued from time to time in one or
more series as determined by the Board of Directors. The Board of Directors
is hereby authorized, by resolution or resolutions, to provide from time to
time,
out of the unissued shares of Preferred Stock not then allocated to any series
of
Preferred Stock, for a series of the Preferred Stock. Each such series shall
have
distinctive serial designations. Before any shares of any such series of
Preferred
Stock are issued, the Board of Directors shall fix and determine, and is hereby
expressly empowered to fix and determine, by resolution or resolutions, the
voting powers, full or limited, or no voting powers, and the designations,
preferences and relative, participating, optional or other special rights, and
the
qualifications, limitations and restrictions thereof as provided by Colorado
law.
Before issuing any shares of a class or series, the corporation shall deliver to
the secretary of state for filing articles of amendment to these articles of
incorporation that set forth information required by Colorado law, including but
not limited to, the designations, preferences, limitations, and relative rights
of the class or series of shares.
C. Voting. Unless otherwise ordered by a court of competent
jurisdiction, at all meetings of shareholders one-third of the shares of a
voting
group entitled to vote at such meeting, represented in person or by proxy, shall
constitute a quorum of that voting group.
FOURTH: The number of directors of the corporation shall be fixed
by the bylaws, or if the bylaws fail to fix such a number, then by resolution
adopted from time to time by the board of directors, provided that the number
of directors shall not be more than five (5) nor less than one (1). One (1)
director shall constitute the initial board of directors. The following person
is elected to serve as the corporation's initial director until the first annual
meeting of shareholders or until his successors are duly elected and qualified:
Name Address
Robert Soehngen 2434 Vine Place
Boulder, Colorado 80304
FIFTH: The street address of the initial registered office of
the corporation is 4750 Table Mesa Drive, Boulder, Colorado 80303. The name
of the initial registered agent of the corporation at such address is Gary S.
Joiner.
SIXTH: The address of the initial principal office of the
corporation is 4750 Table Mesa Drive, Boulder, Co 80303.
SEVENTH: The following provisions are inserted for the management
of the business and for the conduct of the affairs of the corporation, and the
same are in furtherance of and not in limitation or exclusion of the powers
conferred by law.
(a) Conflicting Interest Transactions. As used in this paragraph,
"conflicting interest transaction" means any of the following: (i) a loan or
other assistance by the corporation to a director of the corporation or to an
entity in which a director of the corporation is a director or officer or has a
financial interest; (ii) a guaranty by the corporation of an obligation of a
director of the corporation or of an obligation of an entity in which a director
of the corporation is a director or officer or has a financial interest; or
(iii) a contract or transaction between the corporation and a director of the
corporation or between the corporation and an entity in which a director of the
corporation is a director or officer or has a financial interest. No
conflicting interest transaction shall be void or voidable, be enjoined, be set
aside, or give rise to
an award of damages or other sanctions in a proceeding by a shareholder or by
or in the right of the corporation, solely because the conflicting interest
transaction involves a director of the corporation or an entity in which a
director of the corporation is a director or officer or has a financial
interest, or
solely because the director is present at or participates in the meeting of the
corporation's board of directors or of the committee of the board of directors
which authorized, approves or ratifies a conflicting interest transaction, or
solely
because the director's vote is counted for such purpose if: (A) the material
facts
as to the director's relationship or interest and as to the conflicting interest
transaction are disclosed or are known to the board of directors or the
committee, and the board of directors or committee in good faith authorizes,
approves or ratifies the conflicting interest transaction by the affirmative
vote
of a majority of the disinterested directors, even though the disinterested
directors are less than a quorum; or (B) the material facts as to the director's
relationship or interest and as to the conflicting interest transaction are
disclosed
or are known to the shareholders entitled to vote thereon, and the conflicting
interest transaction is specifically authorized, approved or ratified in good
faith
by a vote of the shareholders; or (C) a conflicting interest transaction is fair
as
to the corporation as of the time it is authorized, approved or ratified by the
board of directors, a committee thereof, or the shareholders. Common or
interested directors may be counted in determining the presence of a quorum
at a meeting of the board of directors or of a committee which authorizes,
approves or ratifies the conflicting interest transaction.
(b) Loans and Guaranties for the Benefit of Directors. Neither the
board of directors nor any committee thereof shall authorize a loan by the
corporation to a director of the corporation or to an entity in which a director
of the corporation is a director or officer or has a financial interest, or a
guaranty by the corporation of an obligation of a director of the corporation or
of an obligation of an entity in which a director of the corporation is a
director
or officer or has a financial interest, until at least ten days after written
notice
of the proposed authorization of the loan or guaranty has been given to the
shareholders who would be entitled to vote thereon if the issue of the loan or
guaranty were submitted to a vote of the shareholders. The requirements of this
paragraph (b) are in addition to, and not in substitution for, the provisions of
paragraph (a) of Article SEVENTH.
(c) Indemnification. The corporation shall indemnify, to the
maximum extent permitted by law, any person who is or was a director, officer,
agent, fiduciary or employee of the corporation against any claim, liability or
expenses arising against or incurred by such person made party to a proceeding
because he is or was a director, officer, agent, fiduciary or employee of the
corporation or because he was a director, officer, agent, fiduciary or employee
of the corporation or because he is or was serving another entity as a director,
officer, partner, trustee, employee, fiduciary or agent at the corporation's
request. The corporation shall further have the authority to the maximum
extent permitted by law to purchase and maintain insurance providing such
indemnification.
(d) Limitation on Director's Liability. No director of this
corporation shall have any personal liability for monetary damages to the
corporation or its shareholders for breach of his fiduciary duty as a director,
except that this provision shall not eliminate or limit the personal liability
of a
director to the corporation or its shareholders for monetary damages for: (i)
any
breach of the director's duty of loyalty to the corporation or its shareholders;
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law; (iii) voting for or assenting to a distribution
in
violation of Colorado Revised Statutes Section 7-106-401 or the articles of
incorporation if it is established that the director did not perform his duties
in
compliance with Colorado Revised Statutes Section 7-108-401, provided that the
personal liability of a director in this circumstance shall be limited to the
amount of the distribution which exceeds what could have been distributed
without violation of Colorado Revised Statutes Section 7-106-401 or the articles
of
incorporation; or (iv) any transaction from which the director directly or
indirectly derives an improper personal benefit. Nothing contained herein will
be construed to deprive any director of his right to all defenses ordinarily
available to a director nor will anything herein be construed to deprive any
director of any right he may have for contribution from any other director or
other person.
(e) Negation of Equitable Interests in Shares or Rights. Unless a
person is recognized as a shareholder through procedures established by the
corporation pursuant to Colorado Revised Statutes Section 7-107-204 or any
similar law, the corporation shall be entitled to treat the registered holder
of any shares of the corporation as the owner thereof for all purposes permitted
by the Colorado Business Corporation Act, including without limitation all
rights deriving from such shares, and the corporation shall not be bound to
recognize any equitable or other claim to, or interest in, such shares or
rights deriving from such shares on the part of any other person including
without limitation, a purchaser, assignee or transferee of such shares, unless
and until such otherperson becomes the registered holder of such shares or is
recognized as such, whether or not the corporation shall have either actual or
constructive notice of the claimed interest of such other person. By way of
example and not of limitation, until such other person has become the registered
holder of such shares or is recognized pursuant to Colorado Revised Statutes
Section 7-107-204 or any similar applicable law, he shall not be entitled: (i)
to receive notice of the meetings of the shareholders; (ii) to vote at such
meetings; (iii) to examine a list of the shareholders; (iv) to be paid dividends
or other distributions payable to shareholders; or (v) to own, enjoy and
exercise any other rights deriving from such shares against the corporation.
Nothing contained herein will be construed to deprive any beneficial
shareholder, as defined in Colorado Revised Statutes Section 7-113-101(1),
of any right he may have pursuant to Article 113 of the
Colorado Business Corporation Act or any subsequent law.
EIGHTH: The name and address of the incorporator is:
Gary S. Joiner
4750 Table Mesa Drive
Boulder, Colorado 80303
DATED the 8th day of August, 1996.
Gary S. Joiner /s/
Incorporator
Gary S. Joiner hereby consents to the appointment as the initial
registered agent for Boulder Capital Opportunities II, Inc.
Gary S. Joiner /s/
Initial Registered Agent<PAGE>
EXHIBIT 2.2
BYLAWS
OF
BOULDER CAPITAL OPPORTUNITIES II, INC.
ARTICLE I
Offices
The principal office of the corporation shall be designated from time
to time by the corporation and may be within or outside of Colorado.
The corporation may have such other offices, either within or outside
Colorado, as the board of directors may designate or as the business of the
corporation may require from time to time.
The registered office of the corporation required by the Colorado
Business Corporation Act to be maintained in Colorado may be, but need not
be, identical with the principal office, and the address of the registered
office may be changed from time to time by the board of directors.
ARTICLE II
Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders
shall be held during the month of September of each year on a date and at a
time fixed by the board of directors of the corporation (or by the president in
the absence of action by the board of directors), beginning with the year 1997,
for the purpose of electing directors and for the transaction of such other
business as may come before the meeting. If the election of directors is not
held on the day fixed as provided herein for any annual meeting of the
shareholders, or any adjournment thereof, the board of directors shall cause the
election to be held at a special meeting of the shareholders as soon thereafter
as it may conveniently be held.
A shareholder may apply to the district court in the county in Colorado
where the corporation's principal office is located or, if the corporation has
no principal office in Colorado, to the district court of the county in which
the corporation's registered office is located to seek an order that a
shareholder meeting be held (i) if an annual meeting was not held within six
months after the close of the corporation's most recently ended fiscal year or
fifteen months after its last annual meeting, whichever is earlier, or (ii) if
the shareholder participated in a proper call of or proper demand for a special
meeting and notice of the special meeting was not given within thirty days after
the date of the call or the date the last of the demands necessary to require
calling of the meeting was received by the corporation pursuant to C.R.S.
Section 7-107-102(1)(b), or the special meeting was not held in accordance with
the notice.
Section 2. Special Meetings. Unless otherwise prescribed by
statute, special meetings of the shareholders may be called for any purpose
by the president or by the board of directors. The president shall call a
special meeting of the shareholders if the corporation receives one or more
written demands for the meeting, stating the purpose or purposes for which it is
to be held, signed and dated by holders of shares representing at least ten
percent of all the votes entitled to be cast on any issue proposed to be
considered at the meeting.
Section 3. Place of Meeting. The board of directors may designate
any place, either within or outside Colorado, as the place for any annual
meeting or any special meeting called by the board of directors. A waiver of
notice signed by all shareholders entitled to vote at a meeting may designate
any place, either within or outside Colorado, as the place for such meeting. If
no designation is made, or if a special meeting is called other than by the
board, the place of meeting shall be the principal office of the corporation.
Section 4. Notice of Meeting. Written notice stating the place,
date, and hour of the meeting shall be given not less than ten nor more than
sixty days before the date of the meeting, except that (i) if the number of
authorized shares is to be increased, at least thirty days' notice shall be
given, or (ii) any other longer notice period is required by the Colorado
Business Corporation Act. Notice of a special meeting shall include a
description of the purpose or purposes of the meeting. Notice of an annual
meeting need not include a description of the purpose or purposes of the meeting
except the purpose or
purposes shall be stated with respect to (i) an amendment to the articles of
incorporation of the corporation, (ii) a merger or share exchange in which the
corporation is a party and, with respect to a share exchange, in which the
corporation's shares will be acquired, (iii) a sale, lease, exchange or other
disposition, other than in the usual and regular course of business, of all or
substantially all of the property of the corporation or of another entity which
this corporation controls, in each case with or without the goodwill, (iv) a
dissolution of the corporation, or (v) any other purpose for which a statement
of purpose is required by the Colorado Business Corporation Act. Notice shall
be given personally or by mail, private carrier, telegraph, teletype,
electronically
transmitted facsimile or other form of wire or wireless communication by or at
the direction of the president, the secretary, or the officer or persons calling
the meeting, to each shareholder of record entitled to vote at such meeting. If
mailed and if in a comprehensible form, such notice shall be deemed to be
given and effective when deposited in the United States mail, addressed to the
shareholder at his address as it appears in the corporation's current record of
shareholders, with postage prepaid. If notice is given other than by mail, and
provided that such notice is in a comprehensible form, the notice is given and
effective on the date received by the shareholder.
If requested by the person or persons lawfully calling such meeting, the
corporation shall give notice thereof at corporation expense. No notice need be
sent to any shareholder if three successive notices mailed to the last known
address of such shareholder have been returned as undeliverable until such time
as another address for such shareholder is made known to the corporation by
such shareholder. In order to be entitled to receive notice of any meeting, a
shareholder shall advise the corporation in writing of any change in such
shareholder's mailing address as shown on the corporation's books and records.
When a meeting is adjourned to another date, time or place, notice need
not be given of the new date, time or place if the new date, time or place of
such meeting is announced before adjournment at the meeting at which the
adjournment is taken. At the adjourned meeting the corporation may transact
any business which may have been transacted at the original meeting. If the
adjournment is for more than 120 days, or if a new record date is fixed for the
adjourned meeting, a new notice of the adjourned meeting shall be given to
each shareholder of record entitled to vote at the meeting as of the new record
date.
A shareholder may waive notice of a meeting before or after the time
and date of the meeting by a writing signed by such shareholder. Such waiver
shall be delivered to the corporation for filing with the corporate records.
Further, by attending a meeting either in person or by proxy, a shareholder
waives objection to lack of notice or defective notice of the meeting unless the
shareholder objects at the beginning of the meeting to the holding of the
meeting or the transaction of business at the meeting because of lack of notice
or defective notice. By attending the meeting, the shareholder also waives any
objection to consideration at the meeting of a particular matter not within the
purpose or purposes described in the meeting notice unless the shareholder
objects to considering the matter when it is presented.
Section 5. Fixing of Record Date. For the purposes of determining
shareholders entitled to (i) notice of or vote at any meeting of shareholders or
any adjournment thereof, (ii) receive distributions or share dividends, or (ii)
demand a special meeting, or to make a determination of shareholders for any
other proper purpose, the board of directors may fix a future date as the record
date for any such determination of shareholders, such date in any case to be not
more than seventy days, and, in case of a meeting of shareholders not less than
ten days, prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If no record date is fixed by the
directors, the record date shall be the date on which notice of the meeting is
mailed to shareholders, or the date on which the resolution of the board of
directors providing for a distribution is adopted, as the case may be. When a
determination of shareholders entitled to vote at any meeting of shareholders is
made as provided in this Section, such determination shall apply to any
adjournment thereof unless the board of directors fixes a new record date,
which it must do if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
Notwithstanding the above, the record date for determining the
shareholders entitled to take action without a meeting or entitled to be given
notice of action so taken shall be the date a writing upon which the action is
taken is first received by the corporation. The record date for determining
shareholders entitled to demand a special meeting shall be the date of the
earliest of any of the demands pursuant to which the meeting is called.
Section 6. Voting Lists. The secretary shall make, at the earlier
of ten days before each meeting of shareholders or two business days after
notice of the meeting has been given, a complete list of the shareholders
entitled to be given notice of such meeting or any adjournment thereof. The
list shall be arranged by voting groups and within each voting group by class or
series of shares, shall be in alphabetical order within each class or series,
and shall show the address of and the number of shares of each class or series
held by each shareholder. For the period beginning the earlier of ten days
prior to the
meeting or two business days after notice of the meeting is given and
continuing through the meeting and any adjournment thereof, this list shall be
kept on file at the principal office of the corporation, or at a place (which
shall be identified in the notice) in the city where the meeting will be held.
Such list shall be available for inspection on written demand by any shareholder
(including for the purpose of this Section 6 any holder of voting trust
certificates) or his agent or attorney during regular business hours and during
the period available for inspection. The original stock transfer books shall be
prima facie evidence as to the shareholders entitled to examine such list or to
vote at any meeting of shareholders.
Any shareholder, his agent or attorney may copy the list during regular
business hours and during the period it is available for inspection, provided
(i)
the shareholder has been a shareholder for at least three months immediately
preceding the demand or holds at least five percent of all outstanding shares of
any class of shares as of the date of the demand, (ii) the demand is made in
good faith and for a purpose reasonably related to the demanding shareholder's
interest as a shareholder, (iii) the shareholder describes with reasonable
particularity the purpose and the records the shareholder desires to inspect,
(iv)
the records are directly connected with the described purpose and (v) the
shareholder pays a reasonable charge covering the costs of labor and material
for such copies, not to exceed the estimated cost of production and
reproduction.
Section 7. Recognition Procedure for Beneficial Owners. The board
of directors may adopt by resolution a procedure whereby a shareholder of the
corporation may certify in writing to the corporation that all or a portion of
the shares registered in the name of such shareholder are held for the account
of a specified person or persons. The resolution may set forth (i) the types
of nominees to which it applies, (ii) the rights or privileges that the
corporation will recognize in a beneficial owner, which may include rights and
privileges other than voting; (iii) the form of certification and the
information to be contained therein, (iv) if the certification is with respect
to a record date, the
time within which the certification must be received by the corporation, (v) the
period for which the nominee's use of the procedure is effective, and (vi) such
other provisions with respect to the procedure as the board deems necessary or
desirable. Upon receipt by the corporation of a certificate complying with the
procedure established by the board of directors, the persons specified in the
certification shall be deemed, for the purpose or purposes set forth in the
certification, to be the registered holders of the number of shares specified in
place of the shareholder making the certification.
Section 8. Quorum and Manner of Acting. One-third of the votes
entitled to be cast on a matter by a voting group shall constitute a quorum of
that voting group for action on the matter. If less than one-third of such
votes are represented at a meeting, a majority of the votes so represented may
adjourn
the meeting from time to time without further notice, for a period not to exceed
120 days for any one adjournment. If a quorum is present at such adjourned
meeting, any business may be transacted which might have been transacted at
the meeting as originally noticed. The shareholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding
the withdrawal of enough shareholders to leave less than a quorum, unless the
meeting is adjourned and a new record date is set for the adjourned meeting.
If a quorum exists, action on a matter other than the election of
directors
by a voting group is approved if the votes cast within the voting group favoring
the action exceed the votes cast within the voting group opposing the action,
unless the vote of a greater number or voting by classes is required by law or
the articles of incorporation.
Section 9. Proxies. At all meetings of shareholders, a shareholder
may vote by proxy by signing an appointment form or similar writing, either
personally or by his duly authorized attorney-in-fact. A shareholder may also
appoint a proxy by transmitting or authorizing the transmission of a telegram,
teletype, or other electronic transmission providing a written statement of the
appointment to the proxy, a proxy solicitor, proxy support service organization,
or other person duly authorized by the proxy to receive appointments as agent
for the proxy, or to the corporation. The transmitted appointment shall set
forth
or be transmitted with written evidence from which it can be determined that
the shareholder transmitted or authorized the transmission of the appointment.
The proxy appointment form or similar writing shall be filed with the secretary
of the corporation before or at the time of the meeting. The appointment of a
proxy is effective when received by the corporation and is valid for eleven
months unless a different period is expressly provided in the appointment form
or similar writing.
Any complete copy, including an electronically transmitted facsimile, of
an appointment of a proxy may be substituted for or used in lieu of the original
appointment for any purpose for which the original appointment could be used.
Revocation of a proxy does not affect the right of the corporation to
accept the proxy's authority unless (i) the corporation had notice that the
appointment was coupled with an interest and notice that such interest is
extinguished is received by the secretary or other officer or agent authorized
to
tabulate votes before the proxy exercises his authority under the appointment,
or (ii) other notice of the revocation of the appointment is received by the
secretary or other officer or agent authorized to tabulate votes before the
proxy
exercises his authority under the appointment. Other notice of revocation may,
in the discretion of the corporation, be deemed to include the appearance at a
shareholders' meeting of the shareholder who granted the proxy and his voting
in person on any matter subject to a vote at such meeting.
The death or incapacity of the shareholder appointing a proxy does not
affect the right of the corporation to accept the proxy's authority unless
notice
of the death or incapacity is received by the secretary or other officer or
agent
authorized to tabulate votes before the proxy exercises his authority under the
appointment.
The corporation shall not be required to recognize an appointment made
irrevocable if it has received a writing revoking the appointment signed by the
shareholder (including a shareholder who is a successor to the shareholder who
granted the proxy) either personally or by his attorney-in-fact, notwithstanding
that the revocation may be a breach of an obligation of the shareholder to
another person not to revoke the appointment.
Subject to Section 11 and any express limitation on the proxy's authority
appearing on the appointment form, the corporation is entitled to accept the
proxy's vote or other action as that of the shareholder making the appointment.
Section 10. Voting of Shares. Each outstanding share, regardless of
class, shall be entitled to one vote, except in the election of directors, and
each
fractional share shall be entitled to a corresponding fractional vote on each
matter submitted to a vote at a meeting of shareholders, except to the extent
that the voting rights of the shares of any class or classes are limited or
denied
by the articles of incorporation and by the resolution of the board of directors
authorizing the issuance of the shares of any particular class, as permitted by
the Colorado Business Corporation Act. Cumulative voting shall not be
permitted in the election of directors or for any other purpose. Each record
holder of shares of common stock shall be entitled to vote in the election of
directors and shall have as many votes for each of the shares owned by him as
there are directors to be elected and for whose election he has the right to
vote.
At each election of directors, that number of candidates equaling the
number of directors to be elected, having the highest number of votes cast in
favor of their election, shall be elected to the board of directors.
Except as otherwise ordered by a court of competent jurisdiction upon
a finding that the purpose of this Section would not be violated in the
circumstances presented to the court, the shares of the corporation are not
entitled to be voted if they are owned, directly or indirectly, by a second
corporation, domestic or foreign, and the first corporation owns, directly or
indirectly, a majority of the shares entitled to vote for directors of the
second corporation except to the extent the second corporation holds the shares
in a fiduciary capacity.
Redeemable shares are not entitled to be voted after notice of redemption
is mailed to the holders and a sum sufficient to redeem the shares has been
deposited with a bank, trust company or other financial institution under an
irrevocable obligation to pay the holders the redemption price on surrender of
the shares.
Section 11. Corporation's Acceptance of Votes. If the name signed
on a vote, consent, waiver, proxy appointment, or proxy appointment revocation
corresponds to the name of a shareholder, the corporation, if acting in good
faith, is entitled to accept the vote, consent, waiver, proxy appointment or
proxy appointment revocation and give it effect as the act of the shareholder.
If the name signed on a vote, consent, waiver, proxy appointment or proxy
appointment revocation does not correspond to the name of a shareholder, the
corporation, if acting in good faith, is nevertheless entitled to accept the
vote, consent, waiver, proxy appointment or proxy appointment revocation and to
give it effect as the act of the shareholder if:
(i) the shareholder is an entity and the name signed purports to be
that of an officer or agent of the entity;
(ii) the name signed purports to be that of an administrator,
executor, guardian or conservator representing the shareholder and, if the
corporation requests, evidence of fiduciary status acceptable to the corporation
has been presented with respect to the vote, consent, waiver, proxy appointment
or proxy appointment revocation;
(iii) the name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the corporation requests, evidence of this
status acceptable to the corporation has been presented with respect to the
vote, consent, waiver, proxy appointment or proxy appointment revocation;
(iv) the name signed purports to be that of a pledgee, beneficial
owner or attorney-in-fact of the shareholder and, if the corporation requests,
evidence acceptable to the corporation of the signatory's authority to sign for
the shareholder has been presented with respect to the vote, consent, waiver,
proxy appointment or proxy appointment revocation;
(v) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of the
co-tenants or fiduciaries, and the person signing appears to be acting on behalf
of all the co-tenants or fiduciaries; or
(vi) the acceptance of the vote, consent, waiver, proxy appointment
or proxy appointment revocation is otherwise proper under rules established by
the corporation that are not inconsistent with this Section 11.
The corporation is entitled to reject a vote, consent, waiver, proxy
appointment or proxy appointment revocation if the secretary or other officer
or agent authorized to tabulate votes, acting in good faith, has reasonable
basis for doubt about the validity of the signature on it or about the
signatory's authority to sign for the shareholder.
Neither the corporation nor its officers nor any agent who accepts or
rejects a vote, consent, waiver, proxy appointment or proxy appointment
revocation in good faith and in accordance with the standards of this Section
is liable in damages for the consequences of the acceptance or rejection.
Section 12. Informal Action by Shareholders. Any action required
or permitted to be taken at a meeting of the shareholders may be taken without
a meeting if a written consent (or counterparts thereof) that sets forth the
action
so taken is signed by all of the shareholders entitled to vote with respect to
the
subject matter thereof and received by the corporation. Such consent shall have
the same force and effect as a unanimous vote of the shareholders and may be
stated as such in the document. Action taken under this Section 12 is effective
as of the date the last writing necessary to effect this action is received
by the
corporation, unless all of the writings specify a different effective date, in
which
case such specified date shall be the effective date for such action. If any
shareholder revokes his consent as provided for herein prior to what would
otherwise be the effective date, the action proposed in the consent shall be
invalid. The record date for determining shareholders entitled to take action
without a meeting is the date the corporation receives a writing upon which the
action is taken.
Any shareholder who has signed a writing describing and consenting to
action taken pursuant to this Section 12 may revoke such consent by a writing
signed by the shareholder describing the action and stating that the
shareholder's prior consent thereto is revoked, if such writing is received by
the
corporation before the effectiveness of the action.
Section 13. Meetings by Telecommunication. Any or all of the
shareholders may participate in an annual or special shareholders' meeting by,
or the meeting may be conducted through the use of, any means of
communication by which all persons participating in the meeting may hear each
other during the meeting. A shareholder participating in a meeting by this
means is deemed to be present in person at the meeting.
<PAGE>
ARTICLE III
Board of Directors
Section 1. General Powers. All corporate powers shall be exercised
by or under the authority of, and the business and affairs of the corporation
shall be managed under the direction of its board of directors, except as
otherwise provided in the Colorado Business Corporation Act or the articles of
incorporation.
Section 2. Number, Qualifications and Tenure. The number of
directors of the corporation shall be fixed from time to time by the board of
directors, within a range of no less than one or more than five. A director
shall
be a natural person who is eighteen years of age or older. A director need not
be a resident of Colorado or a shareholder of the corporation.
Directors shall be elected at each annual meeting of shareholders. Each
director shall hold office until the next annual meeting of shareholders
following his election and thereafter until his successor shall have been
elected
and qualified. Directors shall be removed in the manner provided by the
Colorado Business Corporation Act.
Section 3. Vacancies. Any director may resign at any time by
giving written notice to the corporation. Such resignation shall take effect at
the time the notice is received by the corporation unless the notice specifies a
later effective date. Unless otherwise specified in the notice of resignation,
the
corporation's acceptance of such resignation shall not be necessary to make it
effective. Any vacancy on the board of directors may be filled by the
affirmative vote of a majority of the shareholders or the board of directors.
If
the directors remaining in office constitute fewer than a quorum of the board,
the directors may fill the vacancy by the affirmative vote of a majority of all
the directors remaining in office. If elected by the directors, the director
shall
hold office until the next annual shareholder's meeting at which directors are
elected. If elected by the shareholders, the director shall hold office for the
unexpired term of his predecessor in office; except that, if the director's
predecessor was elected by the directors to fill a vacancy, the director elected
by the shareholders shall hold office for the unexpired term of the last
predecessor elected by the shareholders.
Section 4. Regular Meetings. A regular meeting of the board of
directors shall be held without notice immediately after and at the same place
as the annual meeting of shareholders. The board of directors may provide by
resolution the time and place, either within or outside Colorado, for the
holding of additional regular meetings without other notice.
Section 5. Special Meetings. Special meetings of the board of
directors may be called by or at the request of the president or chief executive
officer, or any director. The person or persons authorized to call special
meetings of the board of directors may fix any place, either within or outside
Colorado, as the place for holding any special meeting of the board of directors
called by them, provided that no meeting shall be called outside the State of
Colorado unless a majority of the board of directors has so authorized.
Section 6. Notice. Notice of any special meeting shall be given at
least two days prior to the meeting by written notice either personally
delivered
or mailed to each director at his business address, or by notice transmitted by
telegraph, telex, electronically transmitted facsimile or other form of wire or
wireless communication. If mailed, such notice shall be deemed to be given
and to be effective on the earlier of (i) three days after such notice is
deposited
in the United States mail, properly addressed, with postage prepaid, or (ii) the
date shown on the return receipt, if mailed by registered or certified mail
return
receipt requested. If notice is given by telex, electronically transmitted
facsimile or other similar form of wire or wireless communication, such notice
shall be deemed to be given and to be effective when sent, and with respect to
a telegram, such notice shall be deemed to be given and to be effective when
the telegram is delivered to the telegraph company. If a director has
designated
in writing one or more reasonable addresses or facsimile numbers for delivery
of notice to him, notice sent by mail, telegram, telex, electronically
transmitted
facsimile or other form of wire or wireless communication shall not be deemed
to have been given or to be effective unless sent to such addresses or facsimile
numbers, as the case may be.
A director may waive notice of a meeting before or after the time and
date of the meeting by a writing signed by such director. Such waiver shall be
delivered to the corporation for filing with the corporate records. Further, a
director's attendance at or participation in a meeting waives any required
notice
to him of the meeting unless at the beginning of the meeting, or promptly upon
his arrival, the director objects to holding the meeting or transacting business
at the meeting because of lack of notice or defective notice and does not
thereafter vote for or assent to action taken at the meeting. Neither the
business
to be transacted at, nor the purpose of, any regular or special meeting of the
board of directors need be specified in the notice or waiver of notice of such
meeting.
Section 7. Quorum. A majority of the number of directors fixed by
the board of directors pursuant to Section 2 or, if no number is fixed, a
majority of the number in office immediately before the meeting begins, shall
constitute a quorum for the transaction of business at any meeting of the board
of directors. If less than such majority is present at a meeting, a majority of
the
directors present may adjourn the meeting from time to time without further
notice, for a period not to exceed sixty days at any one adjournment.
Section 8. Manner of Acting. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the board of directors. No director may vote or act by proxy at any meeting
of directors.
Section 9. Compensation. By resolution of the board of directors,
any director may be paid any one or more of the following: his expenses, if
any, of attendance at meetings, a fixed sum for attendance at each meeting, a
stated salary as director, or such other compensation as the corporation and the
director may reasonably agree upon. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
Section 10. Presumption of Assent. A director of the corporation
who is present at a meeting of the board of directors or committee of the board
at which action on any corporate matter is taken shall be presumed to have
assented to the action taken unless (i) the director objects at the beginning of
the meeting, or promptly upon his arrival, to the holding of the meeting or the
transaction of business at the meeting and does not thereafter vote for or
assent
to any action taken at the meeting, (ii) the director contemporaneously requests
that his dissent or abstention as to any specific action taken be entered in the
minutes of the meeting, or (iii) the director causes written notice of his
dissent
or abstention as to any specific action to be received by the presiding officer
of
the meeting before its adjournment or by the corporation promptly after the
adjournment of the meeting. A director may dissent to a specific action at a
meeting, while assenting to others. The right to dissent to a specific action
taken at a meeting of the board of directors or a committee of the board shall
not be available to a director who voted in favor of such action.
Section 11. Committees. By resolution adopted by a majority of all
the directors in office when the action is taken, the board of directors may
designate from among its members an executive committee and one or more
other committees, and appoint one or more members of the board of directors
to serve on them. To the extent provided in the resolution, each committee
shall have all the authority of the board of directors, except that no such
committee shall have the authority to (i) authorize distributions, (ii) approve
or
propose to shareholders actions or proposals required by the Colorado Business
Corporation Act to be approved by shareholders, (iii) fill vacancies on the
board
of directors or any committee thereof, (iv) amend articles of incorporation, (v)
adopt, amend or repeal the bylaws, (vi) approve a plan of merger not requiring
shareholder approval, (vii) authorize or approve the reacquisition of shares
unless pursuant to a formula or method prescribed by the board of directors, or
(viii) authorize or approve the issuance or sale of shares, or contract for the
sale
of shares or determine the designations and relative rights, preferences and
limitations of a class or series of shares, except that the board of directors
may
authorize a committee or officer to do so within limits specifically prescribed
by the board of directors. The committee shall then have full power within the
limits set by the board of directors to adopt any final resolution setting forth
all
preferences, limitations and relative rights of such class or series and to
authorize an amendment of the articles of incorporation stating the preferences,
limitations and relative rights of a class or series for filing with the
Secretary
of State under the Colorado Business Corporation Act.
Sections 4, 5, 6, 7, 8 and 12 of Article III, which govern meetings,
notice, waiver of notice, quorum, voting requirements and action without a
meeting of the board of directors, shall apply to committees and their members
appointed under this Section 11.
Neither the designation of any such committee, the delegation of
authority to such committee, nor any action by such committee pursuant to its
authority shall alone constitute compliance by any member of the board of
directors or a member of the committee in question with his responsibility to
conform to the standards of care set forth in Article III, Section 14 of these
bylaws.
Section 12. Action Without a Meeting. Any action required or
permitted to be taken at a meeting of the directors or any committee designated
by the board of directors may be taken without a meeting if a written consent
(or counterparts thereof) that sets forth the action so taken is signed by all
of
the directors entitled to vote with respect to the action taken. Such consent
shall have the same force and effect as a unanimous vote of the directors or
committee members and may be stated as such in any document. Unless the
consent specifies a different effective date, action taken under this Section 12
is effective at the time the last director signs a writing describing the action
taken, unless, before such time, any director has revoked his consent by a
writing signed by the director and received by the president or secretary of the
corporation.
Section 13. Telephonic Meetings. The board of directors may permit
any director (or any member of a committee designated by the board) to
participate in a regular or special meeting of the board of directors or a
committee thereof through the use of any means of communication by which
all directors participating in the meeting can hear each other during the
meeting.
A director participating in a meeting in this manner is deemed to be present in
person at the meeting.
Section 14. Standard of Care. A director shall perform his duties as
a director, including, without limitation his duties as a member of any
committee of the board, in good faith, in a manner he reasonably believes to be
in the best interests of the corporation, and with the care an ordinarily
prudent
person in a like position would exercise under similar circumstances. In
performing his duties, a director shall be entitled to rely on information,
opinions, reports or statements, including financial statements and other
financial data, in each case prepared or presented by the persons herein
designated. However, he shall not be considered to be acting in good faith if
he has knowledge concerning the matter in question that would cause such
reliance to be unwarranted. A director shall not be liable to the corporation
or
its shareholders for any action he takes or omits to take as a director if, in
connection with such action or omission, he performs his duties in compliance
with this Section 14.
The designated persons on whom a director is entitled to rely are (i) one
or more officers or employees of the corporation whom the director reasonably
believes to be reliable and competent in the matters presented, (ii) legal
counsel,
public accountant, or other person as to matters which the director reasonably
believes to be within such person's professional or expert competence, or (iii)
a committee of the board of directors on which the director does not serve if
the director reasonably believes the committee merits confidence.
ARTICLE IV
Officers and Agents
Section 1. General. The officers of the corporation shall be as
determined by the board of directors from time to time, and may include a
president, one or more vice presidents, a secretary, a treasurer, and such other
officers, assistant officers, committees and agents, including a chairman of the
board, assistant secretaries and assistant treasurers, as the board may consider
necessary. Each officer shall be a natural person eighteen years of age or
older.
The board of directors or the officer or officers authorized by the board shall
from time to time determine the procedure for the appointment of officers, their
term of office, their authority and duties and their compensation. One person
may hold more than one office. In all cases where the duties of any officer,
agent or employee are not prescribed by the bylaws, or by the board of
directors, such officer, agent or employee shall follow the orders and
instructions of the president of the corporation.
Section 2. Appointment and Term of Office. The officers of the
corporation shall be appointed by the board of directors at each annual meeting
of the board held after each annual meeting of the shareholders. If the
appointment of officers is not made at such meeting or if an officer or officers
are to be appointed by another officer or officers of the corporation, such
appointment shall be made as soon thereafter as conveniently may be. Each
officer shall hold office until the first of the following occurs: his
successor
shall have been duly appointed and qualified, his death, his resignation, or his
removal in the manner provided in Section 3.
Section 3. Resignation and Removal. An officer may resign at any
time by giving written notice of resignation to the corporation. The
resignation
is effective when the notice is received by the corporation unless the notice
specifies a later effective date.
Any officer or agent may be removed at any time with or without cause
by the board of directors or an officer or officers authorized by the board.
Such removal does not affect the contract rights, if any, of the corporation or
of the person so removed. The appointment of an officer or agent shall not in
itself create contract rights.
Section 4. Vacancies. A vacancy in any office, however occurring,
may be filled by the board of directors, or by the officer or officers
authorized
by the board, for the unexpired portion of the officer's term. If an officer
resigns and his resignation is made effective at a later date, the board of
directors, or officer or officers authorized by the board, may permit the
officer
to remain in office until the effective date and may fill the pending vacancy
before the effective date if the board of directors or officer or officers
authorized by the board provide that the successor shall not take office until
the
effective date. In the alternative, the board of directors, or officer or
officers
authorized by the board of directors, may remove the officer at any time before
the effective date and may fill the resulting vacancy.
Section 5. President. Subject to the direction and supervision of
the
board of directors, and unless otherwise determined by the board of directors
in its designation of officers from time to time, the president shall be the
chief
executive officer of the corporation, and shall have general and active control
of its affairs and business and general supervision of its officers, agents and
employees. Unless otherwise directed by the board of directors, the president
shall attend in person or by substitute appointed by him, or shall execute on
behalf of the corporation written instruments appointing a proxy or proxies to
represent the corporation, at all meetings of the stockholders of any other
corporation in which the corporation holds any stock. On behalf of the
corporation, the president may in person or by substitute or by proxy execute
written waivers of notice and consents with respect to any such meetings. At
all such meetings and otherwise, the president, in person or by substitute or
proxy, may vote the stock held by the corporation, execute written consents and
other instruments with respect to such stock, and exercise any and all rights
and
powers incident to the ownership or said stock, subject to the instructions, if
any, of the board of directors. The president shall have custody of the
treasurer's bond, if any.
Section 6. Vice Presidents. Any vice presidents designated by the
board of directors as officers of the corporation shall assist the president and
shall perform such duties as may be assigned to them by the president or by the
board of directors. In the absence of the president, the vice president, if any
(or, if more than one, the vice presidents in the order designated by the board
of directors, or if the board makes no such designation, then the vice president
designated by the president, or if neither the board nor the president makes any
such designation, the senior vice president as determined by first election
to that office), shall have the powers and perform the duties of the president.
Section 7. Secretary. In the event a secretary is designated by the
board of directors as an officer of the corporation, the secretary shall (i)
prepare
and maintain as permanent records the minutes of the proceedings of the
shareholders and the board of directors, a record of all actions taken by the
shareholders or board of directors without a meeting, a record of all actions
taken by a committee of the board of directors in place of the board of
directors
on behalf of the corporation, and a record of all waivers of notice of meetings
of shareholders and of the board of directors or any committee thereof, (ii) see
that all notices are duly given in accordance with the provisions of these
bylaws
and as required by law, (iii) serve as custodian of the corporate records and of
the seal of the corporation and affix the seal to all documents when authorized
by the board of directors, (iv) keep at the corporation's registered office or
principal place of business a record containing the names and addresses of all
shareholders in a form that permits preparation of a list of shareholders
arranged
by voting group and by class or series of shares within each group, that is
alphabetical within each class or series and that shows the address of, and the
number of shares of each class or series held by each shareholder, unless such
a record shall be kept at the office of the corporation's transfer agent or
registrar, (v) maintain at the corporation's principal office the originals or
copies of the corporation's articles of incorporation, bylaws, minutes of all
shareholders' meetings and records of all action taken by shareholders without
a meeting for the past three years, all written communications within the past
three years to shareholders as a group or to the holders of any class or series
of shares as a group, a list of the name and business addresses of the current
directors and officers, a copy of the corporation's most recent corporate report
filed with the Secretary of State, and financial statements showing in
reasonable
detail the corporation's assets and liabilities and results of operations for
the last
three years, (vi) have general charge of the stock transfer books of the
corporation, unless the corporation has a transfer agent, (vii) authenticate
records of the corporation, and (vii) in general, perform all duties incident to
the office of secretary and such other duties as from time to time may be
assigned to him by the president or by the board of directors. Assistant
secretaries, if any, shall have the same duties and powers subject to
supervision
by the secretary. The directors and/or shareholders may however respectively
designate a person other than the secretary or assistant secretary to keep the
minutes of their respective meetings.
Any books, records, or minutes of the corporation may be in written
form or in any form capable of being converted into written form within a
reasonable time.
Section 8. Treasurer. In the event a treasurer is designated by the
board of directors as an officer of the corporation, the treasurer shall be the
principal financial officer of the corporation, shall have the care and custody
of
all funds, securities, evidences of indebtedness and other personal property of
the corporation and shall deposit the same in accordance with the instructions
of the board of directors. He shall receive and give receipts and acquittances
for money paid in on account of the corporation, and shall pay out of the
corporation's funds on hand all bills, payrolls and other just debts of the
corporation of whatever nature upon maturity. He shall perform all other duties
incident to the office of the treasurer and, upon request of the board, shall
make
such reports to it as may be required at any time. He shall, if required by the
board, give the corporation a bond in such sums and with such sureties as shall
be satisfactory to the board, conditioned upon the faithful performance of his
duties and for the restoration to the corporation of all books, papers,
vouchers,
money and other property of whatever kind in his possession or under his
control belonging to the corporation. He shall have such other powers and
perform such other duties as may from time to time be prescribed by the board
of directors or the president. The assistant treasurers, if any, shall have the
same powers and duties, subject to the supervision of the treasurer.
The treasurer shall also be the principal accounting officer of the
corporation. He shall prescribe and maintain the methods and systems of
accounting to be followed, keep complete books and records of account as
required by the Colorado Business Corporation Act, prepare and file all local,
state and federal tax returns, prescribe and maintain an adequate system of
internal audit and prepare and furnish to the president and the board of
directors
statements of account showing the financial position of the corporation and the
results of its operations.
ARTICLE V
Stock
Section 1. Certificates. The board of directors shall be authorized
to issue any of its classes of shares with or without certificates. The fact
that
the shares are not represented by certificates shall have no effect on the
rights
and obligations of shareholders. If the shares are represented by certificates,
such shares shall be represented by consecutively numbered certificates signed,
either manually or by facsimile, in the name of the corporation by one or more
persons designated by the board of directors. In case any officer who has
signed or whose facsimile signature has been placed upon such certificate shall
have ceased to be such officer before such certificate is issued, such
certificate
may nonetheless be issued by the corporation with the same effect as if he were
such officer at the date of its issue. Certificates of stock shall be in such
form
and shall contain such information consistent with law as shall be prescribed by
the board of directors. If shares are not represented by certificates, within a
reasonable time following the issue or transfer of such shares, the corporation
shall send the shareholder a complete written statement of all of the
information
required to be provided to holders of uncertificated shares by the Colorado
Business Corporation Act.
Section 2. Consideration for Shares. Certificated or uncertificated
shares shall not be issued until the shares represented thereby are fully paid.
The board of directors may authorize the issuance of shares for consideration
consisting of any tangible or intangible property or benefit to the corporation,
including cash, promissory notes, services performed or other securities of the
corporation. Future services shall not constitute payment or partial payment
for
shares of the corporation. The promissory note of a subscriber or an affiliate
of a subscriber shall not constitute payment or partial payment for shares of
the
corporation unless the note is negotiable and is secured by collateral, other
than
the shares being purchased, having a fair market value at least equal to the
principal amount of the note. For purposes of this Section 2, "promissory note"
means a negotiable instrument on which there is an obligation to pay
independent of collateral and does not include a non-recourse note.
Section 3. Lost Certificates. In case of the alleged loss,
destruction
or mutilation of a certificate of stock, the board of directors may direct the
issuance of a new certificate in lieu thereof upon such terms and conditions in
conformity with law as the board may prescribe. The board of directors may
in its discretion require an affidavit of lost certificate and/or a bond in such
form and amount and with such surety as it may determine before issuing a new
certificate.
Section 4. Transfer of Shares. Upon surrender to the corporation or
to a transfer agent of the corporation of a certificate of stock duly endorsed
or
accompanied by proper evidence of succession, assignment or authority to
transfer, and receipt of such documentary stamps as may be required by law and
evidence of compliance with all applicable securities laws and other
restrictions,
the corporation shall issue a new certificate to the person entitled thereto,
and
cancel the old certificate. Every such transfer of stock shall be entered on
the
stock books of the corporation which shall be kept at its principal office or by
the person and at the place designated by the board of directors.
Except as otherwise expressly provided in Article II, Sections 7 and 11,
and except for the assertion of dissenters' rights to the extent provided in
Article 113 of the Colorado Business Corporation Act, the corporation shall be
entitled to treat the registered holder of any shares of the corporation as the
owner thereof for all purposes, and the corporation shall not be bound to
recognize any equitable or other claim to, or interest in, such shares or rights
deriving from such shares on the part of any person other than the registered
holder, including without limitation any purchaser, assignee or transferee of
such shares or rights deriving from such shares, unless and until such other
person becomes the registered holder of such shares, whether or not the
corporation shall have either actual or constructive notice of the claimed
interest
of such other person.
Section 5. Transfer Agent, Registrars and Paying Agents. The board
may at its discretion appoint one or more transfer agents, registrars and agents
for making payment upon any class of stock, bond, debenture or other security
of the corporation. Such agents and registrars may be located either within or
outside Colorado. They shall have such rights and duties and shall be entitled
to such compensation as may be agreed.
ARTICLE VI
Indemnification of Certain Persons
Section 1. Indemnification. For purposes of Article VI, a "Proper
Person" means any person who was or is a party or is threatened to be made a
party to any threatened, pending, or complete action, suit or proceeding,
whether civil, criminal, administrative or investigative, and whether formal or
informal, by reason of the fact that he is or was a director, officer, employee,
fiduciary or agent of the corporation, or is or was serving at the request of
the
corporation as a director, officer, partner, trustee, employee, fiduciary or
agent
of any foreign or domestic profit or nonprofit corporation or of any
partnership,
joint venture, trust, profit or nonprofit unincorporated association, limited
liability company, or other enterprise or employee benefit plan. The
corporation shall indemnify any Proper Person against reasonably incurred
expenses (including any attorneys' fees), judgments, penalties, fines (including
any excise tax assessed with respect to an employee benefit plan) and amounts
paid in settlement reasonably incurred by him in connection with such action,
suit or proceeding if it is determined by the groups set forth in Section 4 of
this
Article that he conducted himself in good faith and that he reasonably believed
(i) in the case of conduct in his official capacity with the corporation, that
his
conduct was in the corporation's best interests, or (ii) in all other cases
(except
criminal cases), that his conduct was at least not opposed to the corporation's
best interests, or (iii) in the case of any criminal proceeding, that he had no
reasonable cause to believe his conduct was unlawful. A Proper Person will be
deemed to be acting in his official capacity while acting as a director,
officer,
employee or agent on behalf of this corporation and not while acting on this
corporation's behalf for some other entity.
No indemnification shall be made under this Article VI to a Proper
Person with respect to any claim, issue or matter in connection with a
proceeding by or in the right of a corporation in which the Proper Person was
adjudged liable to the corporation or in connection with any proceeding
charging that the Proper Person derived an improper personal benefit, whether
or not involving action in an official capacity, in which he was adjudged liable
on the basis that he derived an improper personal benefit. Further,
indemnification under this Section in connection with a proceeding brought by
or in the right of the corporation shall be limited to reasonable expenses,
including attorneys' fees, incurred in connection with the proceeding.
Section 2. Right to Indemnification. The corporation shall
indemnify any Proper Person who was wholly successful, on the merits or
otherwise, in defense of any action, suit, or proceeding as to which he was
entitled to indemnification under Section 1 of this Article VI against expenses
(including attorneys' fees) reasonably incurred by him in connection with the
proceeding without the necessity of any action by the corporation other than the
determination in good faith that the defense has been wholly successful.
Section 3. Effect of Termination of Action. The termination of any
action, suit or proceeding by judgment, order, settlement or conviction, or upon
a plea of nolo contendere or its equivalent, shall not of itself create a
presumption that the person seeking indemnification did not meet the standards
of conduct described in Section 1 of this Article VI. Entry of a judgment by
consent as part of a settlement shall not be deemed an adjudication of
liability, as described in Section 2 of this Article VI.
Section 4. Groups Authorized to Make Indemnification
Determination. Except where there is a right to indemnification as set forth in
Sections 1 or 2 of this Article or where indemnification is ordered by a court
in Section 5, any indemnification shall be made by the corporation only as
authorized in the specific case upon a determination by a proper group that
indemnification of the Proper Person is permissible under the circumstances
because he has met the applicable standards of conduct set forth in Section 1
of this Article. This determination shall be made by the board of directors by
a majority vote of those present at a meeting at which a quorum is present,
which quorum shall consist of directors not parties to the proceeding
("Quorum"). If a Quorum cannot be obtained, the determination shall be made
by a majority vote of a committee of the board of directors designated by the
board, which committee shall consist of two or more directors not parties to the
proceeding, except that directors who are parties to the proceeding may
participate in the designation of directors for the committee. If a Quorum of
the board of directors cannot be obtained and the committee cannot be
established, or even if a Quorum is obtained or the committee is designated and
a majority of the directors constituting such Quorum or committee so directs,
the determination shall be made by (i) independent legal counsel selected by a
vote of the board of directors or the committee in the manner specified in this
Section 4, or, if a Quorum of the full board of directors cannot be obtained and
a committee cannot be established, by independent legal counsel selected by a
majority vote of the full board (including directors who are parties to the
action) or (ii) a vote of the shareholders.
Section 5. Court-Ordered Indemnification. Any Proper Person may
apply for indemnification to the court conducting the proceeding or to another
court of competent jurisdiction for mandatory indemnification under Section 2
of this Article, including indemnification for reasonable expenses incurred to
obtain court-ordered indemnification. If the court determines that such Proper
Person is fairly and reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not he met the standards of conduct set forth
in Section 1 of this Article or was adjudged liable in the proceeding, the court
may order such indemnification as the court deems proper except that if the
Proper Person has been adjudged liable, indemnification shall be limited to
reasonable expenses incurred in connection with the proceeding and reasonable
expenses incurred to obtain court-ordered indemnification.
Section 6. Advance of Expenses. Reasonable expenses (including
attorneys' fees) incurred in defending an action, suit or proceeding as
described
in Section 1 may be paid by the corporation to any Proper Person in advance
of the final disposition of such action, suit or proceeding upon receipt of
(i) a
written affirmation of such Proper Person's good faith belief that he has met
the
standards of conduct prescribed by Section 1 of this Article VI, (ii) a written
undertaking, executed personally or on the Proper Person's behalf, to repay such
advances if it is ultimately determined that he did not meet the prescribed
standards of conduct (the undertaking shall be an unlimited general obligation
of the Proper Person but need not be secured and may be accepted without
reference to financial ability to make repayment), and (iii) a determination is
made by the proper group (as described in Section 3 of this Article VI) that the
facts as then known to the group would not preclude indemnification.
Determination and authorization of payments shall be made in the same manner
specified in Section 4 of this Article VI.
Section 7. Witness Expenses. The sections of this Article VI do not
limit the corporation's authority to pay or reimburse expenses incurred by a
director in connection with an appearance as a witness in a proceeding at a time
when he has not been a named defendant or respondent in the proceeding.
Section 8. Report to Shareholders. Any indemnification of or
advance of expenses to a director in accordance with this Article VI, if arising
out of a proceeding by or on behalf of the corporation, shall be reported in
writing to the shareholders with or before the notice of the next shareholders'
meeting. If the next shareholder action is taken without a meeting at the
instigation of the board of directors, such notice shall be given to the
shareholders at or before the time the first shareholder signs a writing
consenting to such action.
ARTICLE VII
Provision of Insurance
By action of the board of directors, notwithstanding any interest of the
directors in the action, the corporation may purchase and maintain insurance,
in such scope and amounts as the board of directors deems appropriate on
behalf of any person who is or was a director, officer, employee, fiduciary or
agent of the corporation, or who, while a director, officer, employee, fiduciary
or agent of the corporation, is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee, fiduciary or agent of any
other foreign or domestic corporation or of any partnership, joint venture,
trust, profit or nonprofit unincorporated association, limited liability company
or other enterprise or employee benefit plan, against any liability asserted
against, or
incurred by, him in that capacity arising out of his status as such, whether or
not the corporation would have the power to indemnify him against such
liability under the provisions of Article VI or applicable law. Any such
insurance may be procured from any insurance company designated by the
board of directors of the corporation, whether such insurance company is
formed under the laws of Colorado or any other jurisdiction of the United
States or elsewhere, including any insurance company in which the corporation
has an equity interest or any other interest, through stock ownership or
otherwise.
ARTICLE VIII
Miscellaneous
Section 1. Seal. The corporate seal of the corporation shall be
circular in form and shall contain the name of the corporation and the words,
"Seal, Colorado."
Section 2. Fiscal Year. The fiscal year of the corporation shall be
as established by the board of directors.
Section 3. Amendments. The board of directors shall have power,
to the maximum extent permitted by the Colorado Business Corporation Act,
to make, amend and repeal the bylaws of the corporation at any regular or
special meeting of the board unless the shareholders, in making, amending or
repealing a particular bylaw, expressly provide that the directors may not amend
or repeal such bylaw. The shareholders also shall have the power to make,
amend or repeal the bylaws of the corporation at any annual meeting or at any
special meeting called for that purpose.
Section 4. Gender. The masculine gender is used in these bylaws
as a matter of convenience only and shall be interpreted to include the feminine
and neuter genders as the circumstances indicate.
Section 5. Conflicts. In the event of any irreconcilable conflict
between these bylaws and either the corporation's articles of incorporation or
applicable law, the latter shall control.
Section 6. Definitions. Except as otherwise specifically provided
in these bylaws, all terms used in these bylaws shall have the same definition
as in the Colorado Business Corporation Act.
THE FOREGOING BYLAWS, consisting of eighteen (18) pages,
including this page, constitute the bylaws of Boulder Capital Opportunities II,
Inc., adopted by the board of directors of the corporation as of August 8, 1996.
Robert Soehngen /s/
President
<PAGE>
EXHIBIT 3.1
SPECIMEN STOCK CERTIFICATE
Contents:
State of Incorporation
Name of Company
Number of authorized shares of common stock
Name of Individual Shareholder
Number of shares owned by individual shareholder
Fully paid and non-assessable shares
Date of issuance of certificate
Signature of President
Restrictive transfer legend
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> AUG-31-1996
<PERIOD-END> AUG-31-1997
<CASH> 4,250
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 4,250
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 36,177
<CURRENT-LIABILITIES> 2,225
<BONDS> 0
0
0
<COMMON> 40,400
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 36,177
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 6,448
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (6,448)
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (6,448)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
