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EXHIBIT 10.27
BOULDER CAPITAL OPPORTUNITIES, INC.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
As of July 23, 1999
VIA FACSIMILE TRANSMISSION
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Ziffren, Brittenham, Branca & Xxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx, Esq.
Ladies and Gentlemen:
We, Boulder Capital Opportunities, Inc., a Colorado corporation
("Company"), and you, Ziffren, Brittenham, Branca & Xxxxxxx LLP ("ZBBF"), hereby
amend and restate the first two sentences set forth in paragraph 3(a) of the
July 12, 1999 representation agreement (the "Representation Agreement"), by
Company granting to ZBBF an option (the "Option") to purchase five hundred
seventy-five thousand (575,000) shares of Company's Common Stock, no par value
per share, at an exercise price of Two and 50/100 Dollars ($2.50) per share (the
"Exercise Price"), subject to adjustment as described below. The Option shall
vest as of January 22, 2000, may be exercised in whole or in part, and shall be
exercisable at any time after vesting to and including July 22, 2009. The Option
shall be subject to cancellation unilaterally by Company at any time prior to
vesting should Company be dissatisfied with and terminates ZBBF's provision of
services pursuant to the Representation Agreement.
Each exercise of the Option shall be accomplished by presentation and
delivery to the Company of a notice of exercise, duly executed and accompanied
by payment of the Exercise Price for the number of shares of Common Stock
specified in such notice of exercise, together with all Federal and state taxes
applicable upon such exercise.
The Company hereby agrees that at all times there shall be reserved for
issuance and delivery upon exercise of the Option such number of shares of its
Common Stock as shall be required for issuance and delivery upon full exercise
of the Option. All shares of the Company's Common Stock to be issued to ZBBF
upon exercise of the Option will be restricted securities as such term is
defined in Rule 144(a)(3) of the Securities Act of 1933, as amended.
If Company at any times proposes to file a registration statement under
the Securities Act of 1933, as amended, respecting any securities of Company
(excluding registrations of securities to be offered in connection with
Company's employee benefit plans and registrations of securities to be offered
by Company in connection with acquisitions, mergers or similar
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transactions), it will at such time give written notice to ZBBF of its intention
to do so. Upon the written request of ZBBF given within fifteen (15) days after
receipt of any such notice (which request shall specify the securities intended
to be sold or disposed of by ZBBF and describe the nature of any proposed sale
or other disposition thereof), Company shall use its best efforts, but shall not
be obligated, to cause all such securities specified in such request to be so
registered. In the event that any such registration shall be underwritten, if
the underwriters notify Company in writing that the inclusion in such
underwriting of such securities would materially and adversely affect the
underwriting, Company shall have the right not to include such securities. In
any registration pursuant to this paragraph, ZBBF shall pay Company for the
incremental portion of the Federal and state registration and filing fees
attributable to such securities and shall pay all underwriting commissions,
discounts, underwriting expenses and taxes attributable to such securities.
ZBBF shall not, by virtue hereof, be entitled to any rights of a
shareholder of the Company either at law or in equity, and the rights of ZBBF
under the Option are limited to those expressed herein.
If the Company shall at any time issue Common Stock by way of dividend
or other distribution on any stock of the Company or subdivide or combine the
outstanding shares of Common Stock, then the Exercise Price shall be
proportionately decreased in the case of such issuance (on the day following the
date fixed for determining shareholders entitled to receive such dividend or
other distribution), or decreased in the case of such subdivision, or increased
in the case of such combination (on the date that such subdivision or
combination shall become effective). Upon any adjustment of the Exercise Price,
ZBBF shall thereafter (until another such adjustment) be entitled to purchase,
at the new Exercise Price, the number of shares, calculated to the nearest full
share, obtained by multiplying the number of shares of Common Stock initially
issuable upon exercise of the Option by the Exercise Price in effect on the date
hereof and dividing the product so obtained by the new Exercise Price.
In the event of any reclassification, capital reorganization or other
change of outstanding shares of Common Stock (other than as a result of an
issuance of Common Stock by way of dividend or other distribution or of a
subdivision or combination), or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with a subsidiary
in which merger the Company is the continuing corporation and which does not
result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of the
Option), or in case of any sale or conveyance to any other corporation of the
property and assets of the Company as an entirety or substantially as an
entirety, as a condition to any of the foregoing, the Company shall cause
effective provision to be made (including acceleration of vesting) so that ZBBF
shall have the right thereafter, by exercising the Option, to purchase the kind
and amount of shares of stock
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and other securities and property receivable upon such reclassification, capital
reorganization or other change, consolidation, merger, sale or conveyance as if
ZBBF had exercised the Option prior to such transaction. Any such provision
shall include provision for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in the Option. The foregoing
provisions shall similarly apply to successive reclassifications, capital
reorganizations and changes of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances.
In the event the Company spins off a subsidiary by distributing to the
shareholders of the Company, as a dividend or otherwise, the stock of the
subsidiary, the Company shall reserve, for the life of the Option, shares of the
subsidiary to be delivered to ZBBF upon exercising the Option to the same extent
as if ZBBF were the owner of record of Common Stock on the record date for
payment of the shares of the subsidiary.
The Option may not be sold, transferred, assigned or hypothecated by
ZBBF without the prior written consent of Company. Nothing express or implied in
this letter agreement is intended or shall be construed to confer upon or give
to any third party any rights or remedies by virtue of the Option granted
hereunder or any exercise or non-exercise thereof.
This letter agreement shall be governed by the laws of the State of
California without regard to principles of conflicts of laws.
Except as otherwise amended by this letter agreement, the Representation
Agreement shall remain in full force and effect. If acceptable, please sign
where indicated below and return an executed counterpart of this letter
agreement which the parties agree shall be binding upon receipt of facsimile
counterpart signature pages.
Very truly yours,
BOULDER CAPITAL OPPORTUNITIES, INC.,
By: /s/ Gill Champion
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Gill Champion, Vice President
AGREED AND ACCEPTED AS OF
THIS 23RD DAY OF JULY, 1999.
ZIFFREN, BRITTENHAM, BRANCA & XXXXXXX LLP
By: /s/ Xxxxxxx X. Xxxxxxx
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