SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. __________ )(1)
Boulder Acquisitions, Inc.
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(Name of Issuer)
Common Stock, $0.001 par value per share
--------------------------------------------------------------------------------
(Title of Class of Securities)
101400 10 9
--------------------------------------------------------------------------------
(CUSIP Number)
Timothy P. Halter
12890 Hilltop Road
Argyle, TX 76226
(972) 233-0300
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 23, 2004
--------------------------------------------------------------------------------
(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [_].
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 7 Pages)
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(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 101400 10 9 13D Page 2 of 7 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
HALTER FINANCIAL GROUP, INC.
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [X]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
WC
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
TEXAS
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF
1,500,000 SHARES
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
1,500,000 SHARES
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,500,000 SHARES
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
67.9%
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 101400 10 9 13D Page 3 of 7 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
TIMOTHY P. HALTER
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [X]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
OO
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
TEXAS
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF
200,000
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 1,500,000
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
200,000
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
1,500,000
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,700,000
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
77.0%
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
IN
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 101400 10 9 13D Page 4 of 7 Pages
________________________________________________________________________________
Item 1. Security and Issuer.
This statement relates to shares of Common Stock, $0.001 par value per
share (the "Stock"), of Boulder Acquisitions, Inc., a Nevada corporation (the
"Issuer"). The principal executive offices of the Issuer are located at 211 West
Wall Street, Midland, Texas 79701-4556.
________________________________________________________________________________
Item 2. Identity and Background.
Pursuant to Rule 13d-1(a) of Regulation 13D-G of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the "Act"),
this Schedule 13D Statement is hereby filed by the following persons
(collectively, the "Reporting Persons"): Halter Financial Group, Inc., a Texas
corporation ("HFG, Inc."); and Timothy P. Halter, a citizen of the United States
and sole shareholder of HFG, Inc. ("Halter").
HFG, Inc. is a Texas corporation, the principal business of which is to
provide financial consulting services. The principal business address of HFG,
Inc., which also serves as its principal office, is 12890 Hilltop Road, Argyle,
Texas 76226.
Halter's principal occupation or employment is serving as the President
of HFG, Inc. The principal business address of Halter, which also serves as his
principal office, is 12890 Hilltop Road, Argyle, Texas 76226.
During the last five years, none of the Reporting Persons (i) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
________________________________________________________________________________
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to a transaction dated February 23, 2003, HFG, Inc. purchased
for a price of $300,000 in cash, 1,500,000 newly issued shares of Stock from the
Issuer. As consideration for Halter's agreement to serve as an officer and
director of the Issuer, Halter, individually, received warrants convertible into
200,000 shares of Stock at a price of $0.20 per share. HFG, Inc. used "working
capital" to purchase its Stock. As used herein, the term "working capital"
includes income from the business operations of the entity plus sums borrowed
from, among other sources, banks and brokerage firm margin accounts, to operate
such business in general. At the time of filing, Halter has not exercised any
rights under the warrants. If Halter decides to exercise his rights under the
warrants he anticipates using personal funds to purchase his shares of Stock.
________________________________________________________________________________
CUSIP No. 101400 10 9 13D Page 5 of 7 Pages
________________________________________________________________________________
Item 4. Purpose of Transaction.
The Reporting Persons acquired their interests in the Issuer pursuant
to a transaction whereby Halter would become the president and a director of the
Issuer. The purpose of this transaction is to facilitate the desire of the
Issuer to effect a reverse merger with an as yet unidentified private company at
some point in the future. In order to further such a potential reverse merger,
the Reporting Persons have acquired control of the Issuer through a purchase of
newly issued shares of common stock.
At the time of filing, neither the Issuer nor the Reporting Persons
have any formal plans or proposals with regard to such a reverse merger. Upon
identification of a suitable reverse merger candidate, the candidate would be
merged into the Issuer and the primary business of the candidate would become
the primary business of the Issuer. The purpose of such a reverse merger
transaction is to allow the private company candidate to become a public
reporting company pursuant to the Securities Exchange Act of 1934. Once a
reverse merger transaction has occurred it is expected that Halter will resign
his positions as president and director and a new board of directors will be
elected.
________________________________________________________________________________
Item 5. Interest in Securities of the Issuer.
Pursuant to Rule 13d-3(a), at the close of business on February 27,
2004, HFG, Inc. may be deemed to be the beneficial owner of 1,500,000 shares of
the Stock, which constitutes approximately 67.9% of the 2,207,612 shares of the
Stock outstanding on February 27, 2004 (the "Outstanding Shares"). HFG, Inc.,
either directly or indirectly, has or shares the power to vote or to direct the
vote and to dispose or to direct the disposition of, such shares of Stock.
Pursuant to Rule 13d-3(a), at the close of business on February 27,
2004, Halter, individually and as sole shareholder of HFG, Inc., may be deemed
to be the beneficial owner of 1,700,000 shares of the Stock, which constitutes
approximately 77.0% of the Outstanding Shares and consists of (i) the 1,500,000
shares described in the preceding paragraph and (ii) warrants convertible into
200,000 shares of Stock beneficially owned by Halter separately. Halter, either
directly or indirectly, may have or share the power to vote or direct the vote
and to dispose of or to direct the disposition of such shares of Stock.
Other than as set forth above, none of the Reporting Persons named
herein is the beneficial owner of any shares of the Stock.
Transactions effected in the last 60 days:
------------- --------------- ------------- ----------------- ------------------
Reporting Date Number of Price per Share How the
Person Shares transaction was
effected
------------- --------------- ------------- ----------------- ------------------
HFG, Inc. Feb. 23, 2004 1,500,000 $0.20 Private
Subscription
Agreement
------------- --------------- ------------- ----------------- ------------------
Halter Feb. 23, 2004 200,000 $0.20 Warrant
Agreement
------------- --------------- ------------- ----------------- ------------------
CUSIP No. 101400 10 9 13D Page 6 of 7 Pages
________________________________________________________________________________
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
To the best knowledge of the Reporting Persons, there are no other
contracts, arrangements, understandings or relationships (legal or otherwise)
among the Reporting Persons or between the Reporting Persons and any other
person with respect to any securities of the Issuer, including but not limited
to, transfer or voting of any of the securities of the Issuer, finders fees,
joint ventures, loan or option arrangements, puts or calls, guarantees of
profits, division of profits or loss, or the giving or withholding of proxies,
or a pledge or contingency, the occurrence of which would give another person
voting power over shares of the Stock.
________________________________________________________________________________
Item 7. Material to be Filed as Exhibits.
o Halter Financial Group, Inc. Subscription Agreement
o Timothy P. Halter Warrant Agreement
________________________________________________________________________________
CUSIP No. 101400 10 9 13D Page 7 of 7 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
DATED: February 27, 2004
Halter Financial Group, Inc.,
a Texas corporation
By: /s/ Timothy P. Halter
-------------------------
Its: President
-------------------------
/s/ Timothy P. Halter
-------------------------------
Timothy P. Halter
SUBSCRIPTION AGREEMENT
Boulder Acquisitions, Inc.
211 West Wall Street
Midland, Texas 79701-4556
Ladies and Gentlemen:
The undersigned subscriber ("Subscriber") hereby tenders this
Subscription Agreement (this "Agreement") in accordance with and subject to the
terms and conditions set forth herein:
1. Subscription.
------------
1.1 Subscriber hereby subscribes for and agrees to purchase the number
of shares (the "Shares") of common shares, $.001 par value per share (the
"Common Shares"), of Boulder Acquisitions, Inc., a Nevada corporation (the
"Company"), indicated on the signature page attached hereto at the purchase
price set forth on such signature page (the "Purchase Price"), such Purchase
Price being equal to the product of (i) the number of Common Shares subscribed
for by the Subscriber and (ii)current fair market value of the shares of Common
Shares. Subscriber has made or will make payment by wire transfer of funds in
accordance with instructions from the Company in the full amount of the Purchase
Price of the Common Shares for which Subscriber is subscribing (the "Payment").
1.2 This Agreement is part of an isolated offering of Common Shares
being conducted by the Company in reliance upon the exemption from the
registration requirements of the Securities Act of 1933, as amended ( the
"Act"), afforded by Section 4(2) thereunder.
1.3 The Company will hold closing of the offering (the "Closing") at
any mutually agreeable time, hereinafter sometimes referred to as a "Closing
Date." Upon receipt by the Company of the requisite payment for all Common
Shares to be purchased by the Subscriber, the Common Shares so purchased will be
issued in the name of the Subscriber, and the name of the Subscriber will be
registered on the stock transfer books of the Company as the record owner of
such Common Shares. The Company will promptly thereafter issue to the Subscriber
participating in such closing a stock certificate for the Common Shares so
purchased.
1.4 Subscriber hereby agrees to be bound hereby upon (i) execution and
delivery to the Company of the signature page to this Agreement and (ii) written
acceptance on the Closing Date by the Company of Subscriber's subscription,
which shall be confirmed by faxing to the Subscriber the signature page to this
Agreement that has been executed by the Company (the "Subscription").
2. Offering Material.
-----------------
2.1 Subscriber represents and warrants that it is in receipt of and
that it has carefully read all documents filed by the Company with the
Commission prior to the date of this Agreement.
Said documents shall be referred to herein as the "Disclosure
Documents."
3. Conditions to Subscriber's Obligations.
--------------------------------------
3.1 The obligation of Subscriber to close the transaction contemplated
by this Agreement (the "Transaction") is subject to the satisfaction on or prior
to the Closing Date of the conditions set forth in Sections 3.2 through 3.5
hereof and the satisfaction of Section 3.6 on and as of the Closing Date.
3.2 The Company shall have executed this Agreement and delivered the
same to the Subscriber.
3.3 The Board of Directors of the Company shall have adopted
resolutions consistent with Section 4.1(e) below in a form reasonably acceptable
to the Subscriber.
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3.4 Subscriber shall have received copies of all documents and
information which it may have reasonably requested in connection with the
Offering.
3.5 No stop order or suspension of trading shall have been imposed by
the Securities and Exchange Commission (the "SEC"), or any other governmental
regulatory body with respect to public trading in Common Shares of the Company.
3.6 The representations and warranties of the Company shall be true and
correct on and as of the Closing Date as though made on and as of such date.
4. Representations and Warranties; Covenants; Survival.
---------------------------------------------------
4.1 The Company represents and warrants to Subscriber that, at the date
of this Agreement and at the Closing Date on which Subscriber purchases Common
Shares:
(a) The Company has the full power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. This
Agreement constitutes the valid and legally binding obligation of the Company,
enforceable in accordance with its terms. The Company need not give any notice
to, make any filings with, or obtain any authorization, consent, or approval of
any government or governmental agency in order to consummate the transactions
contemplated by this Agreement.
(b) The Company and each of its subsidiaries are corporations
duly organized, validly existing and in good standing under the laws of their
states of incorporation, with all requisite corporate power and authority to
carry on the business in which they are engaged and to own the properties they
own, and the Company has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The Company and each of its subsidiaries are duly qualified and licensed to do
business and are in good standing in all jurisdictions where the nature of their
business makes such qualification necessary, except where the failure to be
qualified or licensed would not have a material adverse effect on the business
of the Company and its subsidiaries, taken as a whole.
(c) Except as set forth in the Company's filings with the SEC,
there are no legal actions or administrative proceedings or investigations
instituted, or to the best knowledge of the Company threatened, against the
Company, that could reasonably be expected to have a material adverse effect on
the Company or any subsidiary, any of the Common Shares, or the business of the
Company and its subsidiaries, or which concerns the transactions contemplated by
this Agreement.
(d) The Company, by appropriate and required corporate action,
has, or will have prior to the Closing, duly authorized the execution of this
Agreement and the issuance and delivery of the Common Shares. The Common Shares
are not subject to preemptive or other rights of any stockholders of the Company
and when issued in accordance with the terms of this Agreement and the
Certificate of Incorporation of the Company, as amended and currently in effect,
the Common Shares will be validly issued, fully paid and nonassessable and free
and clear of all pledges, liens and encumbrances. The issuance of the Common
Shares hereunder will not trigger any outstanding antidilution rights.
(e) Performance of this Agreement and compliance with the
provisions hereof will not violate any provision of any applicable law or of the
Certificate of Incorporation or Bylaws of the Company, or of any of its
subsidiaries, and, will not conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon, any of the
properties or assets of the Company, or of any of its subsidiaries, pursuant to
the terms of any indenture, mortgage, deed of trust or other agreement or
instrument binding upon the Company, or any of its subsidiaries, other than such
breaches, defaults or liens which would not have a material adverse effect on
the Company and its subsidiaries taken as a whole. The Company is not in default
under any provision of its charter or by-laws or other organizational documents
or under any provision of any agreement or other instrument to which it is a
party or by which it is bound or of any law, governmental order, rule or
regulation so as to affect adversely in any material manner its business or
assets or its condition, financial or otherwise.
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(f) The Disclosure Documents, taken together, do not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein to make the statements contained therein not
misleading.
(g) The Company has provided Subscriber with all material
public information in connection with the business of the Company and the
transactions contemplated by this Agreement, and no representation or warranty
made, nor any document, statement, or financial statement prepared or furnished
by the Company in connection herewith contains any untrue statement of material
fact, or omits to state a material fact necessary to make the statements or
facts contained herein or therein not misleading.
(h) This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(i) No registration, authorization, approval, qualification or
consent of any court or governmental authority or agency is necessary in
connection with the execution and delivery of this Agreement or the offering,
issuance or sale of the Common Shares under this Agreement.
(j) The Company is not now, and after the sale of the Common
Shares under this Agreement and under all other agreements and the application
of the net proceeds from the sale of the Common Shares will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(k) The Company has filed all material tax returns required to
be filed, which returns are true and correct in all material respects, and the
Company is not in default in the payment of any taxes, including penalties and
interest, assessments, fees and other charges, shown thereon due or otherwise
assessed, other than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without interest which
were payable pursuant to said returns or any assessments with respect thereto.
(l) The Company has not taken any action outside the ordinary
course of business designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Common Shares to
facilitate the sale or resale of the Common Shares in any manner in
contravention of applicable securities laws.
(m) Subject to the accuracy of the Subscriber's
representations and warranties in Section 7 of this Agreement, the offer, sale,
and issuance of the Common Shares in conformity with the terms of this Agreement
constitute transactions exempt from the registration requirements of Section 5
of the Act and from the registration or qualification requirements of the laws
of any applicable state or United States jurisdiction.
(n) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has directly or indirectly made any offers
or sales in any security or solicited any offers to buy any security under
circumstances that would require registration under the Securities Act of the
issuance of the Shares to the Subscriber. The issuance of the Shares to the
Subscriber will not be integrated with any other issuance of the Company's
securities (past, current or future) for purposes of the Securities Act. The
Company will not make any offers or sales of any security (other than the Common
Shares) that would cause the offering of the Common Shares to be integrated with
any other offering of securities by the Company for purposes of any registration
requirement under the Securities Act or any applicable rules of Nasdaq.
(o) The Company is in material compliance with all applicable
securities (or "Blue Sky") laws of the states of the United States in connection
with the issuance and sale of the Common Shares to Subscriber.
(p) The Company shall use all commercially reasonable efforts
to keep the Common Shares quoted on the OTC Bulletin Board.
5. Transfer and Registration Rights.
--------------------------------
5.1 Subscriber acknowledges that it is acquiring the Common Shares for
its own account and for the purpose of investment and not with a view to any
distribution or resale thereof within the meaning of the Act and any applicable
state or other securities laws ("State Acts"). Subscriber further agrees that it
3
will not sell, assign, transfer or otherwise dispose of any of the Common Shares
in violation of the Act or State Acts and acknowledges that, in taking
unregistered Common Shares, it must continue to bear economic risk in regard to
its investment for an indefinite period of time because of the fact that such
Common Shares have not been registered under the Act or State Acts and further
realizes that such Common Shares cannot be sold unless subsequently registered
under the Act and State Acts or an exemption from such registration is
available. Subscriber further recognizes that the Company is not assuming any
obligation to register such Common Shares. Subscriber also acknowledges that
appropriate legends reflecting the status of the Common Shares under the Act and
State Acts may be placed on the face of the certificates for such Common Shares
at the time of their transfer and delivery to the holder thereof. This Agreement
is made with Subscriber in reliance upon Subscriber's above representations.
5.2 Mandatory Registration. Upon receipt of written demand by the
Subscriber, the Company shall prepare, and, as soon as practicable but in no
event later than 60 calendar days after the date of such notice, file with the
SEC a Registration Statement or Registration Statements (as is necessary) on
Form S-3 (or if such form is unavailable, such other form as is available for
registration) covering the resale of all of the Shares. The initial Registration
Statement prepared pursuant hereto shall register for resale at least that
number of Company common stock shares equal to the number of Shares as of the
date immediately preceding the date the Registration Statement is initially
filed with the SEC, subject to adjustment. The Company shall use its best
efforts to have the Registration Statement declared effective by the SEC as soon
as practicable, but in no event later than 120 calendar days after the date
notice is received.
5.3 Piggy Back Registration Rights.
------------------------------
(a) If the Company decides, including as required under any demand
registration rights agreement, to register any of its common stock or securities
convertible into or exchangeable for common stock under the Securities Act on a
form which is suitable for an offering for cash or shares of the Company held by
third parties and which is not a registration solely to implement an employee
benefit plan, a registration statement on Form S-4 (or successor form) or a
transaction to which Rule 145 or any other similar rule of the SEC is
applicable, the Company will promptly give written notice to the Subscriber of
its intention to effect such a registration. Subject to Section 4(b) below, the
Company shall include all of the Shares that the Subscriber requests to be
included in such a registration by a written notice delivered to the Company
within fifteen (15) days after the notice given by the Company.
(b) If the registration, as described in Section 5.3(a) above, involves
an underwritten offering, the Company will not be required to register Shares in
excess of the amount that the principal underwriter reasonably and in good faith
recommends may be included in such offering (a "Cutback"), which recommendation,
and supporting reasoning, shall be delivered to the Subscriber. If such a
Cutback occurs, the number of shares that are entitled to included in the
registration and underwriting shall be allocated in the following manner: (i)
first, to the Company for any securities it proposes to sell for its own
account, (ii) second, to the Subscriber requiring such registration, and (iii)
third, to other holders of stock of the Company requesting inclusion in the
registration, pro rata among the respective holders thereof on the basis of the
number of shares for which each such requesting holder has requested
registration.
5.4 The Common Shares issued pursuant to this Agreement may not be
transferred except in a transaction which is in compliance with the Act and
State Acts.
6. Closing.
-------
6.1 The Closing of the sale of the Common Shares to Subscriber shall
take place at the offices of the Company at such time as the Company and
Subscriber shall mutually agree.
7. Subscriber Representations. Subscriber hereby represents, warrants and
acknowledges and agrees with the Company as follows:
7.1 Subscriber has been furnished with and has carefully read the
Disclosure Documents as set forth in Section 2.1 hereto and is familiar with the
terms of the Offering. With respect to individual or partnership tax and other
economic considerations involved in this investment, Subscriber is not relying
4
on the Company (or any agent or representative of any of the Company).
Subscriber has carefully considered and has, to the extent Subscriber believes
such discussion necessary, discussed with Subscriber's legal, tax, accounting
and financial advisers the suitability of an investment in the Common Shares for
Subscriber's particular tax and financial situation.
7.2 Subscriber has had an opportunity to inspect relevant documents
relating to the organization and operations of the Company. Subscriber
acknowledges that all documents, records and books pertaining to this investment
which Subscriber has requested have been made available for inspection by
Subscriber and Subscriber's attorney, accountant or other adviser(s).
7.3 Subscriber and/or Subscriber's advisor(s) has/have had a reasonable
opportunity to ask questions of and receive answers and to request additional
relevant information from a person or persons acting on behalf of the Company
concerning the offering.
7.4 Subscriber is not subscribing for the Common Shares as a result of
or subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar.
7.5 Subscriber is an "accredited investor," within the meaning of Rule
501(a) of Regulation D under the Securities Act ("Regulation D"). Subscriber, by
reason of Subscriber's business or financial experience or the business or
financial experience of Subscriber's professional advisers who are unaffiliated
with and who are not compensated by the Company or any affiliate of either of
them, directly or indirectly, can be reasonably assumed to have the capacity to
protect Subscriber's own interests in connection with the transaction.
Subscriber further acknowledges that Subscriber has read the written materials
provided by the Company.
7.6 Subscriber has adequate means of providing for Subscriber's current
financial needs and contingencies, is able to bear the substantial economic
risks of an investment in the Common Shares for an indefinite period of time,
has no need for liquidity in such investment and, at the present time, could
afford a complete loss of such investment.
7.7 Subscriber has such knowledge and experience in financial, tax and
business matters so as to enable Subscriber to use the information made
available to Subscriber in connection with the offering to evaluate the merits
and risks of an investment in the Common Shares and to make an informed
investment decision with respect thereto.
7.8 Subscriber acknowledges that the Common Shares herein subscribed
for have not been registered under the Act or under any State Act. Subscriber
understands further that in absence of an effective Registration Statement, the
Common Shares can only be sold pursuant to some exemption from registration,
such as Rule 144 of the Act, which requires, among other conditions, that the
Common Shares must be held for a minimum of one (1) year.
7.9 Subscriber recognizes that investment in the Common Shares involves
substantial risks. Subscriber acknowledges that Subscriber has reviewed the risk
factors identified within the Disclosure Documents. Subscriber further
recognizes that no Federal or state agencies have passed upon this offering of
the Common Shares or made any finding or determination as to the fairness of
this investment.
7.10 Subscriber acknowledges that each certificate representing the
Common Shares shall contain a legend substantially in the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "SECURITIES ACT") OR UNDER APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AVAILABLE
EXEMPTIONS FROM SUCH REGISTRATION, PROVIDED THAT THE SELLER
DELIVERS TO THE COMPANY AN OPINION OF COUNSEL (WHICH OPINION
AND COUNSEL ARE REASONABLY SATISFACTORY TO THE COMPANY)
CONFIRMING THE AVAILABILITY OF SUCH EXEMPTION. INVESTORS
SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF
TIME.
5
7.11 If this Agreement is executed and delivered on behalf of a
partnership, corporation, trust or estate: (i) such partnership, corporation,
trust or estate has the full legal right and power and all authority and
approval required (a) to execute and deliver, or authorize execution and
delivery of, this Agreement and all other instruments executed and delivered by
or on behalf of such partnership, corporation, trust or estate in connection
with the purchase of the Common Shares, (b) to delegate authority pursuant to a
power of attorney and (c) to purchase and hold such Common Shares; (ii) the
signature of the party signing on behalf of such partnership, corporation, trust
or estate is binding upon such partnership, corporation, trust or estate; and
(iii) such partnership, corporation or trust has not been formed for the
specific purpose of acquiring the Common Shares, unless each beneficial owner of
such entity is qualified as an "accredited investor" within the meaning of
Regulation D and has submitted information substantiating such individual
qualification.
7.12 If Subscriber is a retirement plan or is investing on behalf of a
retirement plan, Subscriber acknowledges that investment in the Common Shares
poses risks in addition to those associated with other investments, including
the inability to use losses generated by an investment in the Common Shares to
offset taxable income.
8. Understandings.
--------------
Subscriber understands, acknowledges and agrees with the Company as
follows:
8.1 Subscriber hereby acknowledges and agrees that upon notice of
acceptance from the Company pursuant to Section 1.4, the Subscription hereunder
is irrevocable by Subscriber, that, except as required by law, Subscriber is not
entitled to cancel, terminate or revoke this Agreement or any agreements of
Subscriber hereunder and that this Subscription Agreement and such other
agreements shall survive the death or disability of Subscriber and shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, successors, legal representatives and
permitted assigns. If Subscriber is more than one person, the obligations of
Subscriber hereunder shall be joint and several and the agreements,
representations, warranties and acknowledgments herein contained shall be deemed
to be made by and be binding upon each such person and his or her heirs,
executors, administrators, successors, legal representatives and permitted
assigns.
8.2 No federal or state agency has made any findings or determination
as to the fairness of the terms of this offering for investment nor any
recommendations or endorsement of the Common Shares.
8.3 The Offering is intended to be exempt from registration under the
Securities Act by virtue of Section 4(2) of the Securities Act and the
provisions of Rule 506 of Regulation D thereunder
8.4 It is understood that in order not to jeopardize the offering's
exempt status under Section 4(2) of the Securities Act and Regulation D, any
transferee may, at a minimum, be required to fulfill the investor suitability
requirements thereunder.
8.5 No person or entity acting on behalf, or under the authority, of
Subscriber is or will be entitled to any broker's, finder's or similar fee or
commission in connection with this Subscription.
8.6 Subscriber acknowledges that the information furnished in this
Agreement by the Company to Subscriber or its advisers in connection with the
Offering, is confidential and nonpublic and agrees that all such written
information which is material and not yet publicly disseminated by the Company
shall be kept in confidence by Subscriber and neither used by Subscriber for
Subscriber's personal benefit (other than in connection with this Subscription),
nor disclosed to any third party, except Subscriber's legal and other advisers
who shall be advised of the confidential nature of such information, for any
reason; provided, however, that this obligation shall not apply to any such
information that (i) is part of the public knowledge or literature and readily
accessible at the date hereof, (ii) becomes a part of the public knowledge or
literature and readily accessible by publication (except as a result of a breach
of this provision) or (iii) is received from third parties (except third parties
who disclose such information in violation of any confidentiality agreements or
obligations, including, without limitation, any subscription agreement entered
into with the Company). The representations, warranties and agreements of
Subscriber and the Company contained herein and in any other writing delivered
in connection with the offering shall be true and correct in all material
respects on and as of the Closing Date of such Subscription as if made on and as
of the date the Company executes this Agreement and shall survive the execution
and delivery of this Agreement and the purchase of the Common Shares.
6
8.7 IN MAKING AN INVESTMENT DECISION, SUBSCRIBER MUST RELY ON ITS OWN
EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS
AND RISKS INVOLVED. THE COMMON SHARES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL
OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
9. Miscellaneous.
-------------
9.1 Except as set forth elsewhere herein, any notice or demand to be
given or served in connection herewith shall be deemed to be sufficiently given
or served for all purposes by being sent as registered or certified mail, return
receipt requested, postage prepaid, in the case of the Company, addressed to it
at the address set forth above. As to the Subscriber to the address set forth
below:
Halter Financial Group, Inc.
12890 Hilltop Road
Argyle, Texas 76226
Attn: Timothy P. Halter, President
9.2 This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of the State of Texas, and shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. If any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed to be modified to conform with such statute or rule of law. Any
provision hereof that may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision hereof.
9.3 In any action, proceeding or counterclaim brought to enforce any of
the provisions of this Agreement or to recover damages, costs and expenses in
connection with any breach of the Agreement, the prevailing party shall be
entitled to be reimbursed by the opposing party for all of the prevailing
party's reasonable outside attorneys' fees, costs and other out-of-pocket
expenses incurred in connection with such action, proceeding or counterclaim.
9.4 This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth herein. The
Company acknowledges that all material facts upon which it has relied in forming
its decision to enter into this Agreement are expressly set forth herein and
further acknowledges that the Subscriber has not made any representations,
express or implied, which are not set expressly set forth herein. This Agreement
supercedes all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof.
9.5 The Company shall indemnify, defend and hold harmless Subscriber
and each of its agents, partners, members, officers, directors, representatives,
or affiliates (collectively, the "Subscriber Indemnities") against any and all
losses, liabilities, claims and expenses, including reasonable attorneys' fees
("Losses"), sustained by Subscriber Indemnities resulting from, arising out of,
or connected with any material inaccuracy in, breach of, or nonfulfillment of
any representation, warranty, covenant or agreement made by or other obligation
of the Company contained in this Agreement or in any document delivered in
connection herewith.
9.6 The Company shall not issue any public statement or press release,
or otherwise disclose in any manner the identity of the Subscriber or that
Subscriber has purchased the Common Shares, without the prior written consent of
the Subscriber, except as may be required by applicable law.
10. Signature. The signature page of this Agreement is contained as
part of the applicable Subscription Package, entitled "Signature Page."
7
SUBSCRIPTION AGREEMENT GENERAL INSTRUCTIONS
-------------------------------------------
General Instructions
These Subscription Documents contain all documents necessary to
subscribe for Common Shares, $.001 par value ("Common Shares"), of Boulder
Acquisitions, Inc., a Nevada corporation (the "Company").
You may subscribe for Common Shares by completing the Subscription
Agreement in the following manner:
1. On line (a) of the signature page state the number of Common Shares
you wish to purchase.
2. On line (b) of the signature page state the total cost of the Common
Shares you wish to purchase. To obtain the cost, multiply the number of Common
Shares you desire to purchase by the purchase price per Common Share set forth
therein.
3. Sign and state your address, telephone number and social security or
other taxpayer identification number on the lines provided on the signature page
to the Subscription Agreement and deliver the completed Subscription Agreement
with payment of the entire purchase price of the Common Shares subscribed for as
set forth below. Payment should be made in United States Dollars:
The Subscription Agreement Signature Page must be completed and signed. Send all
documents to:
Halter Financial Group, Inc.
12890 Hilltop Road
Argyle, Texas 76226
Attention: Timothy P. Halter, President
Facsimile No.: 940-455-7337
THE COMPLETED SUBSCRIPTION AGREEMENT SHOULD BE RETURNED IN ITS ENTIRETY
TO THE COMPANY ABOVE.
Acceptance of Delivery
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of the completed Subscription Agreement will be
reasonably determined by the Company. The Company reserves the absolute right to
reject the completed Subscription Agreement, in its sole and absolute
discretion. The Company also reserves the right to waive any irregularities in,
or conditions of, the submission of completed Subscription Agreement. The
Company shall be under no duty to give any notification of irregularities in
connection with any attempted subscription for Common Shares or incur any
liability for failure to give such notification. Until such irregularities have
been cured or waived, no subscription for Common Shares shall be deemed to have
been made. If the Subscription Agreement is not properly completed and as to
which defects have not been cured or waived will be returned by the Company to
the Subscriber as soon as practicable.
8
SUBSCRIPTION AGREEMENT SIGNATURE PAGE
The undersigned investor hereby certifies that he or she (i) has
received and relied solely upon information provided by the Company, (ii) agrees
to all the terms and conditions of this Subscription Agreement, (iii) meets the
suitability standards set forth in this Subscription Agreement and (iv) is a
resident of the state or foreign jurisdiction indicated below.
(a) The undersigned subscribes for 1,500,000 Common Shares.
(b) The total cost of the Common Shares subscribed for, at $.20 per Common
Share, is $300,000 (the "Purchase Price").
Halter Financial Group, Inc. If other than Individual check one and indicate
----------------------------- capacity of signatory under the signature:
[_] Trust
[_] Estate
----------------------------- [_] Uniform Gifts to Minors Act of State of
Name of Subscriber (Print) [_] Attorney-in-fact ---
[_] Corporation
[_] Other
--------------------------------------
-----------------------------
Name of Joint Subscriber
(if any) (Print)
-----------------------------
Signature of Subscriber
----------------------------- If Joint Ownership, check one:
Signature of Joint Subscriber
(if any)
[_] Joint Tenants with Right of Survivorship
President [_] Tenants in Common
----------------------------- [_] Tenants by Entirety
Capacity of Signatory [_] Community Property
(if applicable)
Backup Withholding Statement:
Social Security or Please check this box only if the investor
Taxpayer Identification Number is subject to:
[_] backup withholding.
12890 Hilltop Road
-----------------------------
Address Foreign Person:
Please check this box only if
the investor is a:
Argyle TX 76266 [_] nonresident alien, foreign corporation,
----------------------------- foreign partnership, foreign trust or
City State Zip Code foreign estate.
Telecopy No. (940) 455-7337
The investor agrees to the terms of this Subscription Agreement and, as required
by the Regulations pursuant to the Internal Revenue Code, certifies under
penalty of perjury that (1) the Social Security Number or Taxpayer
Identification Number and address provided above is correct, (2) the investor is
not subject to backup withholding (unless the Backup Withholding Statement box
is checked) either because he has not been notified that he is subject to backup
withholding as a result of a failure to report all interest or dividends or
because the Internal Revenue Service has notified him that he is no longer
subject to backup withholding and (3) the investor (unless the Foreign Person
box above is checked) is not a nonresident alien, foreign partnership, foreign
trust or foreign estate.
THE SUBSCRIPTION FOR 1,500,000 COMMON SHARES OF BOULDER ACQUISITIONS,
INC. BY THE ABOVE NAMED SUBSCRIBER(S) IS ACCEPTED AS OF FEBRUARY 23, 2004.
BOULDER ACQUISITIONS, INC.
By:
----------------------------------------
Glenn A. Little, Chief Executive Officer
9
WARRANT AGREEMENT
THE SECURITIES REPRESENTED BY THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"1933 ACT"), OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL IN
FORM, REASONABLY ACCEPTABLE TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED
UNDER THE 1933 ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. ANY SUCH
OFFER, SALE, ASSIGNMENT OR TRANSFER MUST ALSO COMPLY WITH THE APPLICABLE STATE
SECURITIES LAWS.
BOULDER ACQUISITIONS, INC.
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
Date of Issuance: February 23, 2004 Number of Shares: 200,000
Boulder Acquisitions, Inc., a Nevada corporation (the "Company"),
hereby certifies that, for Ten United States Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Timothy P. Halter, the registered holder hereof or his permitted
assigns, is entitled, subject to the terms set forth below, to purchase from the
Company upon surrender of this Warrant, at any time or times on or after the
date of issuance, but not after 5:00 P.M. Central Time on the Expiration Date
(as defined herein) 200,000 fully paid nonassessable shares of Common Stock (as
defined herein) of the Company (the "Warrant Shares") at the purchase price per
share provided in Section 1 below.
Section 1. Definitions. The following words and terms as used in this
Warrant shall have the following meanings:
(a) "Business Day" means any day that is not a Saturday,
Sunday or a day on which the banks in the Dallas metropolitan area are generally
closed.
(b) "Common Stock" means (i) the Company's common stock, par
value $0.001 per share, and (ii) any capital stock into which such Common Stock
shall have been changed or any capital stock resulting from a reclassification
of such Common Stock.
(c) "Expiration Date" means the date three (3) years from the
date of this Warrant or, if such date falls on a Saturday, Sunday or other day
on which banks are required or authorized to be closed in the City of Dallas or
the State of Texas or on which trading does not take place on the principal
exchange or automated quotation system on which the Common Stock is traded (a
"Holiday"), the next date that is not a Holiday.
1
(d) "Person" means an individual, a limited liability company,
a partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof.
(e) "Securities Act" means the Securities Act of 1933, as
amended.
(f) "Warrant" means this Warrant and all Warrants issued in
exchange, transfer or replacement of any thereof.
(g) "Warrant Exercise Price" shall be $0.20 per share of
Common Stock, which price is the current fair market value of the shares of
Common Stock.
Section 2. Exercise of Warrant.
(a) Subject to the terms and conditions hereof, this Warrant
may be exercised by the holder hereof then registered on the books of the
Company, in whole or in part, at any time on any Business Day on or after the
date of issuance of this Warrant and prior to 5:00 P.M. Eastern Time on the
Expiration Date by (i) delivery of a written notice, in the form of the
subscription notice attached as Exhibit A hereto (the "Exercise Notice"), of
such holder's election to exercise this Warrant, which notice shall specify the
number of Warrant Shares to be purchased, (ii) payment to the Company of an
amount equal to the Warrant Exercise Price multiplied by the number of Warrant
Shares as to which this Warrant is being exercised (plus any applicable issue or
transfer taxes) (the "Aggregate Exercise Price") in cash or by check or wire
transfer, and (iii) the surrender to a common carrier for delivery to the
Company as soon as practicable following such date, this Warrant (or an
indemnification undertaking with respect to this Warrant in the case of its
loss, theft or destruction); provided, that if such Warrant Shares are to be
issued in any name other than that of the registered holder of this Warrant,
such issuance shall be deemed a transfer and the provisions of Section 8 shall
be applicable. In the event of any exercise of the rights represented by this
Warrant in compliance with this Section 2(a), a certificate or certificates for
the Warrant Shares so purchased, in such denominations as may be requested by
the holder hereof and registered in the name of, or as directed by, the holder,
shall be delivered at the Company's expense to, or as directed by, such holder
as soon as practicable, and in no event later than ten (10) Business Days, after
the Company's receipt of the Exercise Notice, the Aggregate Exercise Price and
this Warrant (or an indemnification undertaking with respect to this Warrant in
the case of its loss, theft or destruction). Upon delivery of the Exercise
Notice and Aggregate Exercise Price referred to in clause (ii) above, the holder
of this Warrant shall be deemed for all corporate purposes to have become the
holder of record of the Warrant Shares with respect to which this Warrant has
been exercised, irrespective of the date of delivery of this Warrant as required
by clause (iii) above or the certificates evidencing such Warrant Shares.
(b) Unless the rights represented by this Warrant shall have
expired or shall have been fully exercised, the Company shall, as soon as
practicable and in no event later than ten (10) Business Days after any exercise
and at its own expense, issue a new Warrant identical in all respects to this
Warrant exercised except it shall represent rights to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under this Warrant
exercised, less the number of Warrant Shares with respect to which such Warrant
is exercised.
2
(c) No fractional shares of Common Stock are to be issued upon
the exercise of this Warrant, but rather the number of shares of Common Stock
issued upon exercise of this Warrant shall be rounded up or down to the nearest
whole number.
Section 3. Covenants as to Common Stock. The Company hereby covenants
and agrees as follows:
(a) This Warrant is, and any Warrant issued in substitution
for or replacement of this Warrant will upon issuance be, duly authorized and
validly issued.
(b) All Warrant Shares which may be issued upon the exercise
of the rights represented by this Warrant will, upon issuance, be validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issue thereof.
(c) During the period within which the rights represented by
this Warrant may be exercised, the Company will at all times have authorized and
reserved at least 100% of the number of shares of Common Stock needed to provide
for the exercise of the rights then represented by this Warrant and the par
value of said shares will at all times be less than or equal to the applicable
Warrant Exercise Price.
(d) If the Company proposes at any time (a) to declare any
dividend or distribution upon any of its stock, whether in cash, property,
stock, or other securities and whether or not a regular cash dividend; (b) to
offer for sale additional shares of any class or series of the Company's stock;
(c) to effect any reclassification or recapitalization of any of its stock; (d)
to merge or consolidate with or into any other corporation, or sell, lease,
license, or convey all or substantially all of its assets, or to liquidate,
dissolve or wind up; or (e) offer holders of registration rights the opportunity
to participate in an underwritten public offering of the company's securities
for cash, then, in connection with each such event, the Company shall give
Holder: (1) at least 10 days prior written notice of the date on which a record
will be taken for such dividend, distribution, or subscription rights (and
specifying the date on which the holders of common stock will be entitled
thereto) or for determining rights to vote, if any, in respect of the matters
referred to in (c) and (d) above; (2) in the case of the matters referred to in
(c) and (d) above at least 10 days prior written notice of the date when the
same will take place (and specifying the date on which the holders of common
stock will be entitled to exchange their common stock for securities or other
property deliverable upon the occurrence of such event); and (3) in the case of
the matter referred to in (e) above, the same notice as is given to the holders
of such registration rights.
Section 4. Registration of Warrant Shares
(a) Mandatory Registration. The Company shall prepare, and, as
soon as practicable but in no event later than sixty (60) calendar days after
the date the holder exercises this Warrant, file with the SEC a Registration
Statement or Registration Statements (as is necessary) on Form S-8 (or if such
form is unavailable, such other form as is available for registration) covering
the resale of all of the Warrant Shares. The initial Registration Statement
prepared pursuant hereto shall register for resale at least that number of
Company common stock shares equal to the number of Warrant Shares as of the date
immediately preceding the date the Registration Statement is initially filed
with the SEC, subject to adjustment. The Company shall use its best efforts to
3
have the Registration Statement declared effective by the SEC as soon as
practicable, but in no event later than 120 calendar days after the date the
holder exercises this Warrant.
(b) Piggy Back Registration Rights. If the Company decides,
including as required under any demand registration rights agreement, to
register any of its common stock or securities convertible into or exchangeable
for common stock under the Securities Act on a form which is suitable for an
offering for cash or shares of the Company held by third parties and which is
not a registration solely to implement an employee benefit plan, a registration
statement on Form S-4 (or successor form) or a transaction to which Rule 145 or
any other similar rule of the SEC is applicable, the Company will promptly give
written notice to the holder of this Warrant of its intention to effect such a
registration. Subject to Section 4(c) below, the Company shall include all of
the Warrant Shares that the holder requests to be included in such a
registration by a written notice delivered to the Company within fifteen (15)
days after the notice given by the Company.
(c) If the registration, as described in Section 4(b) above,
involves an underwritten offering, the Company will not be required to register
Warrant Shares in excess of the amount that the principal underwriter reasonably
and in good faith recommends may be included in such offering (a "Cutback"),
which recommendation, and supporting reasoning, shall be delivered to the holder
of this Warrant. If such a Cutback occurs, the number of shares that are
entitled to included in the registration and underwriting shall be allocated in
the following manner: (i) first, to the Company for any securities it proposes
to sell for its own account, (ii) second, to the holder of this Warrant
requiring such registration, and (iii) third, to other holders of stock of the
Company requesting inclusion in the registration, pro rata among the respective
holders thereof on the basis of the number of shares for which each such
requesting holder has requested registration.
Section 5. Taxes. The Company shall pay any and all taxes which may be
payable with respect to the issuance and delivery of Warrant Shares upon
exercise of this Warrant.
Section 6. Warrant Holder Not Deemed a Stockholder. Except as otherwise
specifically provided herein, no holder, as such, of this Warrant shall be
entitled to vote or receive dividends or be deemed the holder of shares of the
Company for any purpose, nor shall anything contained in this Warrant be
construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote, give or withhold consent to any
corporate action (whether any reorganization, issue of stock, reclassification
of stock, consolidation, merger, conveyance or otherwise), receive notice of
meetings, receive dividends or subscription rights, or otherwise, prior to the
issuance to the holder of this Warrant of the Warrant Shares which he or she is
then entitled to receive upon the due exercise of this Warrant. In addition,
nothing contained in this Warrant shall be construed as imposing any liabilities
on such holder to purchase any securities (upon exercise of this Warrant or
otherwise) or as a stockholder of the Company, whether such liabilities are
asserted by the Company or by creditors of the Company.
Section 7. Representations of Holder. The holder of this Warrant, by
the acceptance hereof, represents that it is acquiring this Warrant and the
Warrant Shares for its own account for investment only and not with a view
towards, or for resale in connection with, the public sale or distribution of
this Warrant or the Warrant Shares, except pursuant to sales registered or
exempted under the Securities Act; provided, however, that by making the
representations herein, the holder does not agree to hold this Warrant or any of
the Warrant Shares for any minimum or other specific term and reserves the right
4
to dispose of this Warrant and the Warrant Shares at any time in accordance with
or pursuant to a registration statement or an exemption under the Securities
Act.
Section 8. Ownership and Transfer.
(a) The Company shall maintain at its principal executive
offices (or such other office or agency of the Company as it may designate by
notice to the holder hereof), a register for this Warrant, in which the Company
shall record the name and address of the Person in whose name this Warrant has
been issued, as well as the name and address of each transferee. The Company may
treat the Person in whose name any Warrant is registered on the register as the
owner and holder thereof for all purposes, notwithstanding any notice to the
contrary, but in all events recognizing any transfers made in accordance with
the terms of this Warrant.
(b) This Warrant and the rights granted to the holder hereof
are transferable, in whole or in part, upon surrender of this Warrant, together
with a properly executed warrant power in the form of Exhibit B attached hereto;
provided, however, that any transfer or assignment shall be subject to the
conditions set forth in Section 8(c) below.
(c) The holder of this Warrant understands that this Warrant
has not been and is not expected to be, registered under the Securities Act or
any state securities laws, and may not be offered for sale, sold, assigned or
transferred unless (a) subsequently registered thereunder, or (b) such holder
shall have delivered to the Company an opinion of counsel, in generally
acceptable form, to the effect that the securities to be sold, assigned or
transferred may be sold, assigned or transferred pursuant to an exemption from
such registration; provided that (i) any sale of such securities made in
reliance on Rule 144 promulgated under the Securities Act may be made only in
accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of such securities under circumstances in which the
seller (or the person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the Securities Act) may require
compliance with some other exemption under the Securities Act or the rules and
regulations of the Securities and Exchange Commission thereunder; and (ii)
neither the Company nor any other person is under any obligation to register the
Warrants under the Securities Act or any state securities laws or to comply with
the terms and conditions of any exemption thereunder.
Section 9. Adjustment to the Shares. The Warrant Exercise Price and the
number of shares of Common Stock issuable upon exercise of this Warrant shall be
adjusted from time to time as follows:
(a) Adjustment of Warrant Exercise Price upon Subdivision or
Combination of Common Stock. If the Company at anytime after the date of
issuance of this Warrant subdivides (by any stock split, stock dividend,
recapitulation or otherwise) one or more classes of its outstanding shares of
Common Stock into a greater number of shares, the Warrant Exercise Price in
effect immediately prior to such subdivision will be proportionately reduced and
the number of shares of Common Stock obtainable upon the exercise of this
Warrant will be proportionately increased. If the Company at any time after the
date of issuance of this Warrant combines (by combination, reverse stock split
or otherwise) one or more classes of its outstanding shares of Common Stock into
5
a smaller number of shares, the Warrant Exercise Price in effect immediately
prior to such combination will be proportionately increased and the number of
shares of Common Stock obtainable upon exercise of this Warrant will be
proportionately decreased.
(b) Reclassification, Exchange, Combinations or Substitution.
Upon any reclassification, exchange, substitution, or other event that results
in a change of the number and/or class of the securities issuable upon exercise
or conversion of this Warrant, the holder of this Warrant shall be entitled to
receive, upon exercise or conversion of this Warrant, the number and kind of
securities and property that the holder of this Warrant would have received for
the shares of Common Stock if this Warrant had been exercised immediately before
such reclassification, exchange, substitution, or other event. The Company or
its successor shall promptly issue to holder of this Warrant a new Warrant for
such new securities or other property. The new Warrant shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 9 including, without limitation,
adjustments to the Warrant Exercise Price and to the number of securities or
property issuable upon exercise of the new Warrant. The provisions of this
Section 9(b) shall similarly apply to successive reclassifications, exchanges,
substitutions, or other events.
(c) Adjustments for Diluting Issuances. The Warrant Exercise
Price and the number of shares of Common Stock issuable upon exercise of this
Warrant shall be subject to adjustment, from time to time in the manner set
forth in the Company's Articles or Certificate of Incorporation as if the shares
of Common Stock were issued and outstanding on and as of the date of any such
required adjustment. The provisions set forth for the shares of Common Stock in
the Company's Articles or Certificate (as applicable) of Incorporation relating
to the above in effect as of the date of issuance may not be amended, modified
or waived, without the prior written consent of the holder of this Warrant
unless such amendment, modification or waiver affects the rights associated with
the Warrant Shares in the same manner as such amendment, modification or waiver
affects the rights associated with all other shares of the same series and class
as the shares granted to the holder.
(d) No Impairment. The Company shall not, by amendment of its
Articles or Certificate (as applicable) of Incorporation or through a
reorganization, transfer of assets, consolidation, merger, dissolution, issue,
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed under
this Warrant by the Company, but shall at all times in good faith assist in
carrying out of all the provisions of this Section 9 and in taking all such
action as may be necessary or appropriate to protect Holder's rights under this
Section against impairment.
(e) Certificate as to Adjustments. Upon each adjustment of the
Warrant Exercise Price, the Company shall promptly notify the holder in writing,
and, at the Company's expense, promptly compute such adjustment, and furnish to
the holder with a certificate of its Chief Financial Officer setting forth such
adjustment and the facts upon which such adjustment is based. The Company shall,
upon written request, furnish to the holder a certificate setting forth the
Warrant Exercise Price in effect upon the date thereof and the series of
adjustments leading to such Warrant Exercise Price.
6
Section 10. Lost, Stolen, Mutilated or Destroyed Warrant. If this
Warrant is lost, stolen, mutilated or destroyed, the Company shall, on receipt
of an indemnification undertaking, issue a new Warrant of like denomination and
tenor as this Warrant so lost, stolen, mutilated or destroyed.
Section 11. Notice. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this Warrant
must be in writing and will be deemed to have been delivered: (i) upon receipt,
when delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one Business Day after deposit with
a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
If to the Company:
Boulder Acquisitions, Inc.
211 West Wall Street
Midland, Texas 79701-4556
Notice to the holder of this Warrant shall be addressed as
follows until the Company receives notice of a change in
address:
Timothy P. Halter
12890 Hilltop Road
Argyle, Texas 76226
Each party shall provide five days' prior written notice to the other party of
any change in address or facsimile number. Written confirmation of receipt (A)
given by the recipient of such notice, consent, waiver or other communication,
(B) mechanically or electronically generated by the sender's facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by a nationally recognized overnight
delivery service shall be rebuttable evidence of personal service, receipt by
facsimile or receipt from a nationally recognized overnight delivery service in
accordance with clause (i), (ii) or (iii) above, respectively.
Section 12. Date. The date of this Warrant is February 23, 2004. This
Warrant, in all events, shall be wholly void and of no effect after the close of
business on the Expiration Date.
Section 13. Amendment and Waiver. Except as otherwise provided herein,
the provisions of this Warrant may be amended and the Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
holder of this Warrant.
Section 14. Descriptive Headings The descriptive headings of the
several Sections and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant.
Section 15. Governing Law. This Warrant shall be governed by and
construed and enforced in accordance with the laws of the State of Texas,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Texas or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State of Texas.
This Warrant has been duly executed by the Company as of the date first
set forth above.
BOULDER ACQUISITIONS, INC.
By:
------------------------
Glenn A. Little
Chief Executive Officer
7
EXHIBIT A TO WARRANT
--------------------
SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT
BOULDER ACQUISITIONS, INC.
The undersigned holder hereby exercises the right to purchase
__________________________ of the shares of Common Stock ("Warrant Shares") of
Boulder Acquisitions, Inc., a Nevada corporation (the "Company"), evidenced by
the attached Warrant (the "Warrant"). Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.
1. Payment of Warrant Exercise Price. The holder shall pay the sum of
$___________________ to the Company in accordance with the terms of the Warrant.
2. Delivery of Warrant Shares. The Company shall deliver to the holder
__________ Warrant Shares in accordance with the terms of the Warrant.
Date: ___________________, 200_
Name of Registered Holder
_____________________________
Name:________________________
A-1
EXHIBIT B TO WARRANT
FORM OF WARRANT POWER
FOR VALUE RECEIVED, the undersigned does hereby assign and transfer to
________________, Federal Identification No. __________, a warrant to purchase
____________ shares of the capital stock of Boulder Acquisitions, Inc., a Nevada
corporation, represented by warrant certificate no. _____, standing in the name
of the undersigned on the books of said corporation. The undersigned does hereby
irrevocably constitute and appoint ______________, attorney to transfer the
warrants of said corporation, with full power of substitution in the premises.
Dated: _______________, 200__
___________________________________________
Name:______________________________________
B-1