Registration No. 2-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BOULDER CAPITAL OPPORTUNITIES II, INC.
(Exact name of registrant as specified in its charter)
Colorado 84-1356898
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
JOHN B. LOWY CONSULTING AGREEMENT
(Full Title of Plan)
Robert Soehngen, 2434 Vine Place, Boulder, CO 80304
(Name and Address of Agent for Service)
(303)442-1021
(Telephone number including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities Amount to be Price Per Offering Registration
to be Registered Registered Share(1) Price(1) Fee(2)
Common Stock 20,200 $1.00 $20,200 $100 (2)
(1) Estimated
(2) Minimum registration fee pursuant to Rule 457.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan(s) Information
The information required by Item 1. is included in documents sent or given
to participants in the John B. Lowy Consulting Agreement pursuant to Rule 428
(b) (1).
Item 2. Registrant Information and Employee Plan Annual Information.
The information required by Item 2. is included in documents sent or given
to participants in the John B. Lowy Consulting Agreement pursuant to Rule 428
(b) (1).
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant is subject to the information requirements of the Securities
Exchange Act of 1934 and, in accordance therewith, files reports with the
Securities and Exchange Commission (the "Commission"). The documents listed
below are hereby incorporated by reference in this Registration Statement on
Form S-8; and all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated herein by reference in this Registration Statement on Form
S-8, and shall be a part hereof from the date of the filing of such documents.
(a) The Registrant's registration statement on Form 10-SB, filed with the
Securities and Exchange Commission on December 9, 1996, and amended on
December 19, 1996 and March 21, 1997; and
(b) Form 10-QSB for the period ended February 28, 1997, filed with the
Securities and Exchange Commission on March 20, 1997;
(c) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since December 19, 1996; and
(d) The description of the Common Stock which is contained in the
registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
Item 4. Description of Securities
Not applicable.
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Item 5. Interests of Named Experts and Counsel
The validity of the authorization and issuance of the Common Stock will be
passed upon by John B. Lowy, P.C., 645 Fifth Avenue, 4th FL., New York, NY
10022.
Item 6. Indemnification of Directors and Officers
The applicable provision from the Articles of Incorporation (paragraph c of
Article SEVENTH) regarding the indemnification of officers, employees and Agents
is as follows:
(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 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.
The applicable provision from the Bylaws of the Corporation (Articles VI)
is as follows:
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 unincorporation association, limited
liability company, or other enterprise or employee benefit plan. The corporation
shall indemnify any Proper Person against reasonable incurred expenses
(including any attorney's 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 firth 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 interest, 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.
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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 defenses has been wholly successful.
Section 3. Effect of Termination of Action. The termination of any action,
suit or proceeding by judgement, 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 the 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 Section 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
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 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
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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 references 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 Articles 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.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
4.1 Certificate of Incorporation of the Registrant(1)
4.2 By-Laws, as amended, of the Registrant(1)
4.3 Consent of Directors dated March 24, 1997 awarding consultant's shares.
4.4 John B. Lowy Consulting Agreement.
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4.5 Opinion of John B. Lowy, P.C. with consent.
4.6 Consent of Stark Tinter & Associates, LLC. independent accountants.
(1) Previously filed with the Commission as an Exhibit to the Registrant's
Registration Statement on Form 10-SB, as amended, File No. 0-21847 which
was originally filed with the Commission December 9, 1996.
Item 9. Undertakings
1. The undersigned Registrant hereby undertakes to file during any period
in which offers or sales are being made, a post-effective amendment to this
Registration Statement to include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
2. The undersigned Registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3. The undersigned Registrant hereby undertakes to remove from registration
by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
4. The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement related to the securities
offered therein, and the offering of such securities at such time shall be
deemed to be the initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement on Form S-8 to be signed on its behalf
by the undersigned, thereunto duly authorized, in Salem, New Hampshire, on the
date set forth below.
BOULDER CAPITAL OPPORTUNITIES II, INC.
Dated: March 24, 1997 By: /S/ Robert Soehngen
-----------------------
Robert Soehngen, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the Company and in the capacities and on the dates indicated.
SIGNATURES TITLE DATE
- ---------- ----- ----
By: /s/ Robert Soehngen President, Director, Treasurer March 24, 1997
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Robert Soehngen
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EXHIBIT 4.3
UNANIMOUS CONSENT OF DIRECTORS
IN LIEU OF MEETING
OF
BOULDER CAPITAL OPPORTUNITIES II, INC.
(A Colorado corporation)
I, the undersigned, being the sole director of BOULDER CAPITAL
OPPORTUNITIES II, INC., a Colorado corporation ("Company"), do hereby waive the
notice and holding of a meeting of the Board of Directors and do hereby
unanimously consent to and adopt the following resolutions this 24th day of
March, 1997:
RESOLVED, that for consulting services rendered to this Company by John B.
Lowy ("Consultant"), this Company hereby authorizes this Company to enter into
the attached Consulting Agreement with the Consultant; and
RESOLVED, that in full payment for the Consultant's services, this Company
hereby authorizes the issuance of 20,200 shares of common stock of the Company,
under and pursuant to SEC Form S-8 and hereby authorizes the Company to prepare,
sign and file with the Securities and Exchange Commission a registration
statement on Form S-8 covering the Consultant's allocation of shares; and
RESOLVED, that the law firm of John B. Lowy, P.C. represent this Company
for the above-described registration statement; and
RESOLVED, that the Company's officers and director is authorized to take
such actions and execute such documents as they deem necessary and proper to
effectuate the foregoing resolutions.
By: /s/ Robert Soehngen
-----------------------
Robert Soehngen
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EXHIBIT 4.4
CONSULTING AGREEMENT
This Agreement is made and entered into as of the 24th day of March, 1997
by and between JOHN B. LOWY ("JBL") with principal office at 645 Fifth Avenue,
New York, NY 10022, and BOULDER CAPITAL OPPORTUNITIES II, INC., a Colorado
corporation (the "Company") with its principal office at 4750 Table Mesa Drive,
Boulder, Colorado 80303.
WHEREAS, JBL has rendered valuable consulting services to the Company
during February, 1997; and
WHEREAS, the parties hereto desire to memorialize JBL's services and
compensate JBL therefor;
NOW, THEREFORE, in consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Purpose: The Company hereby recognizes and agrees that JBL has rendered
consulting advice to the Company specifically relating to transactions not of a
capital raising nature, consisting of assisting the Company in securing a
quotation for its common stock on the OTC Bulletin Board ("Consulting
Services").
2. Compensation: In consideration for the Consulting Services rendered by
JBL to the Company, the Company hereby agrees to issue to JBL 20,200 shares of
common stock of the Company (the "Shares"). JBL hereby acknowledges that the
aforementioned Shares are in full payment for the services rendered.
3. Registration: The Company hereby agrees to immediately register the
Shares pursuant to a Registration Statement on Form S-8.
4. JBL is an Independent Contractor: JBL has performed the Consulting
Services described herein as an independent contractor and not as an employee of
the Company or an affiliate thereof.
5. Miscellaneous:
(a) This Agreement between the Company and JBL constitutes the entire
agreement and understanding of the parties hereto, and supersedes any and
all previous agreement and understandings, whether oral or written, between
the parties with respect to the matters set forth herein.
(b) Any notice or communication permitted or required hereunder shall
be in writing and shall be deemed sufficiently given if hand-delivered or
sent (i) postage prepaid by registered mail, return receipt requested, or
(ii) by facsimile, to the respective parties as set forth above, or to such
other address as either party may notify the other in writing.
(c) This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and their respective successors, legal
representatives and assigns.
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(d) This Agreement may be executed in any number of counterparts, each
of which together shall constitute one and the same original document.
(e) No provision of this Agreement may be amended, modified or waived,
except in a writing signed by all of the parties hereto.
(f) This Agreement shall be construed in accordance with and governed
by the laws of the State of New York, without giving effect to conflict of
law principles. The parties hereby agree that any dispute which may arise
between them arising out of or in connection with this Agreement shall be
adjudicated before a court located in New York, and they hereby submit to
the exclusive jurisdiction of the courts of the State of New York located
in New York, New York and of the federal courts of the State of New York
located in New York, New York and of the federal courts in the Southern
District of New York with respect to any action or legal proceeding
commenced by any party, and irrevocably waive any objections they now or
hereafter may have respecting the venue of any such action or proceeding
brought in such a court or respecting the fact that such court is an
inconvenient forum, relating to or arising out of this Agreement, and
consent to the service of process in any such action or legal proceeding by
means of registered or certified mail, return receipt requested, in care of
the address set forth in Paragraph 8(b) hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
By: /s/ JOHN B. LOWY
--------------------
JOHN B. LOWY
BOULDER CAPITAL OPPORTUNITIES II, INC.
By: /s/ Robert Soehngen
-----------------------
Robert Soehngen, President
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EXHIBIT 4.5
March 25, 1997
Boulder Capital Opportunities II, Inc.
4750 Table Mesa Drive
Boulder, CO 80303
Gentlemen:
We have reviewed a Registration Statement on Form S-8 (the "Registration
Statement"), to be filed with the Securities and Exchange Commission, relating
to 20,200 shares of common stock, no par value per share (the "Shares") of
Boulder Capital Opportunities II, Inc. (the "Company"), which Shares have been
issued pursuant to the Company's consulting agreement filed as an exhibit to the
Registration Statement (the "Agreement").
We have examined the Certificate of Incorporation and the By-Laws of the
Company, the Registration Statement and originals, or copies certified to our
satisfaction, of such records of meetings written actions in lieu of meetings,
or resolutions adopted at meetings, of the directors of the Company, documents
and such other documents and instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies, and the authenticity of the originals
of such latter documents.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly and validly authorized for issuance under the Agreement;
and the Shares, when issued against payment therefor in accordance with the
terms of the Agreement, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
By: /s/ John B. Lowy
--------------------
JBL:ah John B. Lowy, P.C.
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EXHIBIT 4.6
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated October 25, 1996, relating to the
financial statements of Boulder Capital Opportunities II, Inc. as of August 31,
1996 and for the priod from August 8, 1996 to Augutst 31, 1996.
By: /s/ Stark Tinter & Associates, LLC
Stark Tinter & Associates, LLC
March 24, 1997
Englewood, Colorado
