U. S. Securities and Exchange Commission
Washington, D.C. 20549
Form 10-SB
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 III, INC.
(Name of Small Business Issuer in its charter)
Colorado 84-1383888
State or other jurisdiction of IRS 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
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 November 27, 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'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 a number of
contacts within the field of corporate finance and is the sole officer
and director of two other public shell corporations. As a result, he has
had preliminary contacts with representatives of numerous companies
concerning the general possibility of a merger or acquisition by a
public 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 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 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 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. 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 are expected to 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 officer prior to, or in conjunction with,
the completion of a business acquisition. The Company's sole officer
and director has received a fee of $2,000 for organizing the
corporation. 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 sole officer and director and its other current
shareholders own all of the issued and outstanding stock of another
corporation (Boulder Capital Opportunities II, Inc.) which is a public
shell which has previously filed a registration statement on Form 10-
SB. (See "Item 5. Directors, Executive Officers, Promoters, and
Control Persons - Other Blind Pool Activities.") The Company may
be in competition with Boulder Capital Opportunities II, Inc., in
seeking merger candidates. However, since both entities currently
have the same shareholders, no conflict of interest exists.
The Company's sole officer and director may 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 public 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 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. 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 advan-
tage 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
November, 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 would 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, 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. There is 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 will become available for resale under
Rule 144 ninety (90) days after the Company registers its common
stock under Section 12(g) of the Securities and Exchange Commission,
all of which will be subject to applicable volume restrictions under the
Rule, and the remaining 300,000 shares will become available for
resale starting in November 1, 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.
Consequently, the Company's balance sheet for the period of
November 27, 1996 (inception) through December 31, 1996, reflects
current assets of $3,753 in the form of cash, and total assets of
$5,498.
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 November 27, 1996 (inception)
through December 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>
<CAPTION>
<S>
<C> <C> <C>
Name and Address Number of Percent of
Shares Owned Class Owned
Beneficially
Robert Soehngen<F1>
2434 Vine Place
Boulder, Colorado 80304 660,000 65.35%
All directors and executive
officers as a group (1 person) 660,000 65.35%
<FN>
<F1> The person listed is the sole officer and director of the
Company.
</FN>
</TABLE>
Item 5. Directors, Executive Officers, Promoters and Control Persons.
The directors and executive officers currently serving the
Company are as follows:
<TABLE>
<CAPTION>
<S> <C> <C>
Name Age Positions Held and Tenure
Robert Soehngen 46 President and Director since
November, 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 Blind Pool Activities
Mr. Soehngen and all the current shareholders of the company
are also shareholders of two other companies, Boulder Capital
Opportunities, Inc., and Boulder Capital Opportunities II, Inc. They
have signed an agreement to sell a controlling interest, representing
approximately 63.27% of the outstanding stock of Boulder Capital
Opportunities, Inc., for a total purchase price of $30,000. The
purchaser is also required to pay a $10,000 finder's fee to one of the
shareholders of Boulder Capital Opportunities, Inc. No final closing
date has been set for this transaction.
Boulder Capital Opportunities II, Inc. has filed a registration
statement on Form 10-SB under the Securities Exchange Act of 1934,
which became effective on or about February 7, 1997. It is currently
subject to the reporting requirements of the Securities Exchange Act
of 1934, and is seeking a merger or acquisition candidate.
Conflicts of Interest
The sole officer and director of the Company will not devote
more than a portion of his time to the affairs of the Company. 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 blind pool or blank check companies with a
business plan similar or identical to that of the Company. Any such
additional blind pool or blank check 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
$.0025 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.
Three other persons each received a total of 50,000 shares valued at
$0.0025 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 received 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 $1,775.00 in services. 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 December 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 November 27, 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>
<CAPTION>
<S> <C> <C> <C> <C>
Name Date of Shares Aggregate Purchase
Sale Purchase Price
Price per Share
Robert Soehngen 11/27/96 560,000 $1,400.00<F1> $0.0025
Gary S. Joiner 11/27/96 50,000 $ 125.00<F2> $0.0025
Grant W. Peck 11/27/96 50,000 $ 125.00<F2> $0.0025
Dean F. Sessions 11/27/96 50,000 $ 125.00<F2> $0.0025
Robert Soehngen 11/27/96 100,000 $ 250.00 $0.0025
Thomas Soehngen 11/29/96 40,000 $1,600.00 $0.04
John F. O'Neil 11/29/96 30,000 $1,200.00 $0.04
Douglas L. Ray 11/29/96 30,000 $1,200.00 $0.04
Steven C. Signer 12/02/96 50,000 $2,000.00 $0.04
Dev K. Mahanti 12/02/96 50,000 $2,000.00 $0.04
<FN>
<F1>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.
<F2>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.
</FN>
</TABLE>
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>
FINANCIAL STATEMENTS
(A Development Stage Company)
BOULDER CAPITAL OPPORTUNITIES
III, INC.
December 31, 1996<PAGE>
BOULDER CAPITAL OPPORTUNITIES
III, INC.
(A Development Stage Company)
Index to Financial Statements
Report of Independent Auditors 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
III, INC.
(A Development Stage Company)
Report of Independent Auditors
Shareholders and Board of Directors
Boulder Capital Opportunities III, Inc.
Boulder, Colorado
We have audited the accompanying balance sheet of Boulder Capital
Opportunities III, Inc. (a development stage Company) as of
December 31, 1996, and the related statements of operations,
stockholders' equity, and cash flows for the period from November
27, 1996 (inception) to December 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 III, Inc. (a development stage Company) as of
December 31, 1996, and the results of operations, and its cash flows
for the period from November 27, 1996 (inception) to December 31,
1996, in conformity with generally accepted accounting principles.
Stark Tinter & Associates, LLC
/S/
January 29, 1997
Englewood, Colorado
i<PAGE>
BOULDER CAPITAL OPPORTUNITIES
III, INC.
(A DEVELOPMENT STAGE COMPANY)
FINANCIAL STATEMENTS
AS OF DECEMBER 31, 1996
The following financial statements include a balance sheet as of
December 31, 1996, and a statement of operations for the period from
November 27, 1996, (inception) through December 31, 1996.<PAGE>
BOULDER CAPITAL OPPORTUNITIES III, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET AS OF DECEMBER 31, 1996
<TABLE>
<CAPTION>
<S> <C>
CURRENT ASSETS
Cash 3,753
TOTAL CURRENT
ASSETS 3,753
ORGANIZATIONAL COSTS 1,775
less accumulated amortization 30
TOTAL ASSETS 5,498
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities: -
Stockholders' equity:
Preferred Stock, no par value,
10,000,000 shares authorized,
none issued -
Common Stock, no par value,
100,000,000 shares authorized,
1,010,000 shares issued and
outstanding. 10,025
Deficit accumulated
during the
development stage (4,527)
</TABLE>
ii<PAGE>
BOULDER CAPITAL OPPORTUNITIES III, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF OPERATIONS
FOR THE PERIOD NOVEMBER 27, 1996 (Inception) to
DECEMBER 31, 1996
<TABLE>
<CAPTION>
<S> <C>
REVENUE 3
COSTS AND EXPENSES:
General and administrative 4,500
Amortization 30
NET LOSS (4,527)
PER SHARE INFORMATION:
Weighted average number of
common shares outstanding 1,010,000
NET LOSS PER SHARE ($ .0045)
</TABLE>
iii<PAGE>
BOULDER CAPITAL OPPORTUNITIES III, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE PERIOD FROM NOVEMBER 27, 1996 (INCEPTION)
THROUGH DECEMBER 31, 1996
<TABLE>
<CAPTION>
Deficit Accumulated
During the
Common Stock Development Stage
Shares Amount Total
<S> <C> <C> <C> <C>
Shares issued at
inception for services
at $0.0025 per share 710,000 1,775 1,775
Shares issued for
cash at $0.0025
per share 100,000 250 250
Shares issued for
cash at $0.04
per share 200,000 8,000 8,000
NET LOSS FOR THE
PERIOD - - (4,527) (4,527)
TOTAL 1,010,000 10,025 (4,527) 5,498
/TABLE
<PAGE>
BOULDER CAPITAL OPPORTUNITIES III, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS FOR THE PERIOD FROM
NOVEMBER 27, 1996 (INCEPTION) TO DECEMBER 31, 1996
<TABLE>
<CAPTION>
<S> <C>
CASH FLOWS FROM
OPERATING ACTIVITIES
General and Administrative costs (4,497)
NET CASH USED BY OPERATING
ACTIVITIES (4,497)
CASH FLOWS FROM
INVESTING ACTIVITIES -
CASH FLOWS FROM
FINANCING ACTIVITIES:
Capital contributions 8,250
NET CASH PROVIDED BY
FINANCING ACTIVITIES 8,250
NET INCREASE IN CASH AND
CASH EQUIVALENTS 3,753
BEGINNING CASH AND CASH
EQUIVALENTS -
ENDING CASH AND CASH
EQUIVALENTS 3,753
RECONCILIATION OF NET LOSS
TO NET CASH USED IN
OPERATING ACTIVITIES:
Net loss 4,527
Amortization (30)
Net cash used in operating
activities 4,497
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND
FINANCING ACTIVITIES:
ACTIVITIES:
On November 27, 1996, professional services capitalized as
organizational costs valued at $1,775 were exchanged for
710,000 shares of common stock.
</TABLE> 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 November 27, 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 not yet selected a 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 November 27, 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 $1,775.
vi
On November 27, 1996, the Company issued 100,000 shares
of its no par value common stock to its President at $0.0025 per share,
$250 in total.
On November 29, 1996, the Company issued 100,000 shares
of its no par value common stock to various investors for $4,000. On
December 2, 1996, the Company issued another 100,000 shares of its
no par value common stock to various investors for $4,000.
3. RELATED PARTY TRANSACTIONS
At December 31, 1996, the Company owed $2,000 in
consulting fees and $2500 in attorney's fees to officers who are
shareholders of the Company.
<PAGE>
PART III
Item 1. Index to Exhibits
The Exhibits listed below are filed as part of this Registration
Statement.
<TABLE>
<CAPTION>
<S> <C>
Exhibit
No. Document
EX-3.(i) Articles of Incorporation
EX-3.(ii) Bylaws
EX-3.(iii) Specimen Stock Certificate
EX-27 Financial Data Schedule
</TABLE>
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 III, INC.
By: /S/
Robert Soehngen, President and Director
(Principal Executive Officer)
Date: March 24, 1997
<PAGE>
U. S. Securities and Exchange Commission
Washington, D.C. 20549
Form 10-SB
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 III, INC.
(Name of Small Business Issuer in its charter)
Colorado 84-1383888
(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
EX-3.(ii) Bylaws
EX-3.(iii) Specimen Stock Certificate
<PAGE>
EXHIBIT 3.(i)
ARTICLES OF INCORPORATION
OF
BOULDER CAPITAL OPPORTUNITIES III, 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 III, 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 absence 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
adequately 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 other person 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 27th day of November, 1996.
/S/
Gary S. Joiner
Incorporator
Gary S. Joiner hereby consents to the appointment as the initial
registered agent for Boulder Capital Opportunities III, Inc.
/S/
Gary S. Joiner
Initial Registered Agent<PAGE>
EXHIBIT 3.(ii)
BYLAWS
OF
BOULDER CAPITAL OPPORTUNITIES III, 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.
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 III, Inc., adopted by the board of directors of the
corporation as of November 27, 1996.
Robert Soehngen /s/
President<PAGE>
EXHIBIT 3.(iii)
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> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 3753
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 3753
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 5498
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 10025
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 5498
<SALES> 0
<TOTAL-REVENUES> 3
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 4527
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (4527)
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4527)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
