EXHIBIT 99(a)
SHARE EXCHANGE AGREEMENT (hereinafter referred to as "Agreement") between Delta
Capital Technologies, Inc., a Delaware corporation (hereinafter referred to as
"Delta"), and 827109 Alberta Ltd., an Alberta, Canada corporation (hereinafter
referred to as "AlbertaCO").
THE PARTIES AGREE as follows:
1. The parties intend that the securities exchange described herein between
Delta and AlbertaCO will, if allowable, be tax free in accordance with the
provisions of Section 368(a)(1)(B) of the Internal Revenue Code and with
the Income Tax Act of Canada. In the event that it is not allowable, the
parties hereto confirm that the value attributed to the AlbertaCO shares
will be shareholder equity at par value.
2. Exchange of Securities. Subject to the terms and conditions herein, at the
time of the closing referred to in Section 6 hereof (the "Closing Date"),
Delta will issue and deliver, or cause to be issued and delivered to
AlbertaCO 5,000,000 shares of Delta's restricted common stock, in exchange
for 5,000,000 shares of common stock of AlbertaCO to be issued. The shares
of Delta and AlbertaCO will be allocated as set forth in Schedule I,
attached.
3. Representations and Warranties by AlbertaCO. AlbertaCO represents and
warrants to Delta, all of which representations and warranties shall be
true at the time of closing, and shall survive the closing for a period of
six (6) months from the date of closing that:
a) AlbertaCO is a corporation duly organized and validly existing
and in good standing under the laws of Alberta, Canada and has
the corporate powers to own its property and carry on its
business as and where it is now being conducted. Copies of the
Certificate of Incorporation and the By-Laws of AlbertaCO,
which have heretofore been furnished by AlbertaCO to Delta,
are true and correct copies of said Certificate of
Incorporation and By-Laws including all amendments to the date
hereof.
b) The authorized capital stock of AlbertaCO is an unlimited
number of shares at no par value, of which 9,000,000 shares
have been validly issued and are now outstanding.
c) AlbertaCO is authorized to issue 5,000,000 shares of common
stock, at par value of $0.001 per share (the "Shares").
d) AlbertaCO has full power to exchange the Shares upon the terms
provided for in this Agreement, the Shares will be duly and
validly issued and will be free and clear of any lien or other
encumbrance, and no party has an option or right to purchase
any of the Shares from AlbertaCO other than Delta in
accordance with this Agreement.
e) From the date hereof, and until the date of closing, no
dividends or distributions of capital, surplus, or profits
shall be paid or declared by AlbertaCO in redemption of their
outstanding shares or otherwise and no additional shares shall
be issued by said corporation.
f) Since the date hereof, AlbertaCO has not engaged in any
transaction other than transactions in the normal course of
the operations of their business, except as specifically
authorized by Delta in writing.
4. Representations and Warranties by Delta. Delta represents and warrants to
AlbertaCO all of which representations and warranties shall be true at the
time of closing, and shall survive the closing for a period of six (6)
months from the date of closing that:
a) Delta is a corporation duly organized and validly existing and
in good standing under the laws of the State of Delaware and
has the corporate power to own its properties and carry on its
business as now being conducted and has authorized capital
stock consisting of 25,000,000 shares of common stock, $.001
par value per share, of which there are 8,800,000 shares
presently outstanding.
b) Delta has the corporate power to execute and perform this
Agreement, and to deliver the stock required to be delivered
to AlbertaCO hereunder.
c) The execution and delivery of this Agreement, and the issuance
of the stock required to be delivered hereunder have been duly
authorized by all necessary corporate actions, and neither the
execution nor delivery of this Agreement, nor the issuance of
the stock, nor the performance, observance or compliance with
the terms and provisions of this Agreement will violate any
provision of law, any order of any court or other governmental
agency, the Certificate of Incorporation or By-Laws of Delta
or any indenture, agreement or other instrument to which Delta
is a party, or by which Delta is bound, or by which any of its
property is bound.
d) The shares of common stock of Delta deliverable pursuant
hereto will on delivery in accordance with the terms hereof,
be duly authorized, validly issued, and fully paid, and
non-assessable.
5. Conditions to the Obligations of AlbertaCO. The obligations of AlbertaCO
are subject to the conditions that:
a) AlbertaCO shall not have discovered any material error or
misstatement in any of the representations and warranties made
by Delta herein and all the terms and conditions of this
Agreement to be performed and complied with by Delta shall
have been performed and complied with.
b) There shall have been no substantial adverse changes in the
conditions, financial, business otherwise of Delta from the
date of this Agreement, and until the date of closing, except
for changes resulting from those operations in the usual and
ordinary course of business, and between such dates the
business and assets of Delta shall not have been materially
adversely affected as the result of any fire, explosion,
earthquake, flood, accident, strike, lockout, combination of
workmen, taking over of any such assets by any governmental
authorities, riot, activities of armed forces, or acts of God
or of the public enemies.
c) AlbertaCO shall upon request, at the time of closing, receive
an opinion of counsel to the effect that: (1) Delta is a
corporation duly organized and validly existing under the laws
of the State of Delaware, and has the power to own and operate
its properties wherever the same shall be located as of the
Closing Date; (2) the execution, delivery and performance of
this Agreement by Delta has been duly authorized by all
necessary corporate action and constitutes a legal, valid and
binding obligation of Delta, enforceable in accordance with
its terms; (3) the securities to be delivered to AlbertaCO
pursuant to the terms of this Agreement have been validly
issued, fully paid and non-assessable; (4) the exchange of the
securities herein contemplated does not require the
registration of the shares of Delta to be issued pursuant to
any Federal law dealing with the issuance, sale, transfer,
and/or exchange of corporate securities; (5) to the best of
its knowledge Delta is not under investigation by the SEC, the
NASD or any state securities commission; (6) that there are no
known securities violations; (7) all shares issued by Delta
have been validly issued in accordance with Delaware or
Federal law, are fully paid and non-assessable; and (8) there
are no outstanding options, rights, warrants, conversion
privileges or other agreements which would require issuance of
additional shares.
6. Conditions to the Obligations of Delta . The obligations of Delta hereunder
shall be subject to the conditions that:
a) Delta shall not have discovered any material error or
misstatement in any of the representations and warranties by
AlbertaCO herein, and all the terms and conditions of this
Agreement to be performed and complied with by AlbertaCO shall
have been performed and complied with.
b) There shall have been no substantial adverse changes in the
conditions, financial, business otherwise of AlbertaCO from
the date of this Agreement, and until the date of closing,
except for changes resulting from those operations in the
usual and ordinary course of business, and between such dates
the business and assets of AlbertaCO shall not have been
materially adversely affected as the result of any fire,
explosion, earthquake, flood, accident, strike, lockout,
combination of workmen, taking over of any such assets by any
governmental authorities, riot, activities of armed forces, or
acts of God or of the public enemies.
c) Delta shall upon request and at the time of closing, receive
an opinion of counsel to the effect that: (1) AlbertaCO is
duly organized and validly existing under the laws of Alberta,
Canada and has the power and authority to own its properties
and to carry on its respective business wherever the same
shall be located and operated as of the Closing Date; and, (2)
this Agreement has been duly executed and delivered by
AlbertaCO and constitutes a legal, valid and binding
obligation of AlbertaCO enforceable in accordance with its
terms.
d) AlbertaCO does not now have, nor will it have on the date of
closing, any known liabilities or contingent liabilities.
7. Closing Date. The closing shall take place on or before
_____________________________, 1999, or as soon thereafter as is
practicable, at the Law Offices of Xxxxxx Xxxxxxxx, #000 - 000 Xxxx Xxxxxx
Xx., Xxxxxxxxx, XX, or at such other time and place as the parties hereto
shall agree upon.
8. Actions at the Closing. At the closing, Delta and AlbertaCO will each
deliver, or cause to be delivered to the other, the securities to be
exchanged in accordance with Section I of this Agreement and each party
shall pay any and all Federal and State taxes required to be paid in
connection with the issuance and the delivery of their own securities. All
stock certificates shall be in the name of the party to which the same are
deliverable.
9. Conduct of Business, Board of Directors, etc . Between the date hereof and
the Closing Date, the parties will conduct their business in the same
manner in which it has heretofore been conducted and the parties will not:
(1) enter into any contract, etc., other than in the ordinary course of
business; or (2) declare or make any distribution of any kind to their
stockholders, without first obtaining the written consent of the other
party.
10. Upon closing, a new Director will be elected by the shareholders of Delta,
such that the Board of Directors will consist of the following individuals.
Xxxx X. Xxxxx
Xxxxx X. Xxxx
Xxxxxx Xxxxxx
11. Upon closing, Xxxxxx Xxxxxx, President and Secretary of Delta will tender
her resignation as President and upon election of the above Board of
Directors, and subject to the authority of the Board of Directors as
provided by law and the By-Laws of Delta, the officers of Delta, after the
closing date of this Agreement shall be as follows:
Xxxx X. Xxxxx, President
Xxxxx X. Xxxx, Vice President
Xxxxxx Xxxxxx, Secretary & Treasurer
12. Access to the Properties and Books of Parties. The parties hereby grant to
each other, through their duly authorized representatives and during normal
business hours between the date hereof and the Closing Date, the right of
full and complete access to the properties of each other and full
opportunity to examine each other's books and records.
13. Miscellaneous
a) This Agreement shall be construed and enforced in accordance
with the laws of the State of Delaware.
b) Each of AlbertaCO and Delta shall bear and pay all costs and
expenses incurred by it or on its behalf in connection with
the consummation of this Agreement, including, without
limiting the generality of the foregoing, fees and expenses of
financial consultants, accountants and counsel and the cost of
any documentary stamps, sales and excise taxes which may be
imposed upon or be payable in respect to the transaction.
c) At any time before or after the approval and adoption by the
respective stockholders of AlbertaCO and Delta, if required,
this Agreement may be amended or supplemented by additional
written agreements, as may be determined in the judgment of
the respective Boards of Directors of AlbertaCO and Delta to
be necessary, desirable or expedient to further the purpose of
this Agreement, to clarify the intention of the parties, to
add to or to modify the covenants, terms or conditions
contained herein, or otherwise to effectuate or facilitate the
consummation of the transaction contemplated hereby. Any
written
agreement referred to in this paragraph shall be validly and
sufficiently authorized for the purposes of this Agreement if
signed on behalf of AlbertaCO or Delta, as the case may be, by
its Chairman of the Board, or its President.
d) This Agreement may be executed in any number of counterparts
and each counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall
constitute but one agreement.
e) This Agreement shall be binding upon and shall inure to the
benefit of the heirs, executors, administrators and assigns of
AlbertaCO and Delta.
f) All notices, requests, instructions, or other documents to be
given hereunder shall be in writing and sent by registered
mail:
If to AlbertaCO then: If to Delta, then:
Xxxxx 000, 000 0xx Xxxxxx XX, Xxxxxxx, XX, Xxxxxx X0X 0X0 0000 Xxxxx Xxxxxx, Xxxxx X000, Xxxxxxxxx, XX, Xxxxxx
X0X 0X0
This Agreement has been duly approved or adopted by the Board of Directors, and
duly approved or adopted by the stockholders of the constituent corporation, as
required, in the manner provided by the laws of the State of Delaware, the
Chairman of the Board, the President or the Secretary of said corporations under
the respective seals of said corporations by the authority of the directors and
stockholders of each, as required, as the act, deed and agreement of each of
said corporations. This Agreement may be signed in two or more counterparts.
AGREEMENT, dated as of this 1 day of June , 1999, between Delta and AlbertaCO.
DELTA CAPITAL TECHNOLOGIES, INC. 827109 ALBERTA LTD.
"Xxxxxx Xxxxxx" "Xxxx Xxxxx"
-------------------------------- ----------------------------------------
Xxxxxx Xxxxxx, President Xxxx X. Xxxxx, CEO
Acknowledgment of Execution of Agreement
By Officer of
Delta Capital Technologies, Inc.
STATE OF ______________)
) ss.
COUNTY OF ____________)
BE IT REMEMBERED that on this ______ day of ___________, __________, personally
came before me, a Notary Public in and for jurisdiction aforesaid, Xxxxxx
Xxxxxx, President of Delta Capital Technologies, Inc., a Delaware corporation,
and one of the corporations described in and which executed the foregoing
Agreement, known to me personally to be such, and she, the said, Xxxxxx Xxxxxx,
as such President, duly executed said Agreement before me and acknowledged said
Agreement are in the handwriting of said President of Delta Capital
Technologies, Inc.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and
year aforesaid.
------------------------------
Notary Public
Acknowledgment of Execution of Agreement
By Officer of
827109 Alberta Ltd.
STATE OF ______________)
) ss.
COUNTY OF ____________)
BE IT REMEMBERED that on this ______ day of ___________, 1999, personally came
before me, a Notary Public in and for jurisdiction aforesaid, Xxxx Xxxxx,
President of 827109 Alberta Ltd., an Alberta, Canada corporation, and one of the
corporations described in and which executed the foregoing Agreement, known to
me personally to be such, and he, the said, Xxxx Xxxxx, as such Chief Executive
Officer, duly executed said Agreement before me and acknowledged said Agreement
are in the handwriting of said Chief Executive Officer of 827109 Alberta Ltd.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and
year aforesaid.
-------------------------------
Notary Public
SCHEDULE I
ALLOCATION OF 5,000,000 SHARES
OF DELTA CAPITAL TECHNOLOGIES, INC. RESTRICTED COMMON STOCK
TO BE ISSUED TO:
000000 Xxxxxxx Ltd.
#000, 000 0xx Xxxxxx XX
Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0
ALLOCATION OF 5,000,000 SHARES
OF 827109 ALBERTA LTD. COMMON STOCK
TO BE ISSUED TO:
Delta Capital Technologies, Inc.
0000 Xxxxx Xxxxxx, Xxxxx X000
Xxxxxxxxx, XX
X0X 0X0
