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EXHIBIT 4.3
Form of Offshore Securities Subscription Agreement
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
This Offshore Securities Agreement is executed in reliance upon the transaction
exemption afforded by Regulation S ("Regulation S") as promulgated by the
Securities and Exchange Commission ("SEC"), under the Securities Act of 1933, as
amended ("1933 Act")
This Agreement has been executed by the undersigned in connection with
the private placement of shares of Common Stock (hereinafter referred to as the
"Shares") of
DELTA CAPITAL TECHNOLOGIES, INC.
Xxxxx 000, 000 - 0xx Xx. XX
Xxxxxxx, XX X0X 0X0 Xxxxxx
a corporation organized under the laws of the state of Delaware, USA, OTC
Electronic Bulletin Board symbol (DCTG) (hereinafter referred to as the
"Seller")
The Undersigned:
Xxxxxxx Overseas Limited
0/0 Xxx Xxxxx
Xx. Xxxxx Port
Guernsey Channel Island
a resident of a non USA jurisdiction (hereinafter referred to as the
"Purchaser"), hereby represents and warrants to, and agrees with the Seller as
follows:
1. Agreement to Subscribe
a. Purchase Price. The undersigned hereby subscribes for 200,000
common shares in the capital of the Seller (the "Shares") at $2.00
per share payable in U.S. Dollars for a total consideration of
$400,000 dollars ($US) (the "Purchase Price").
b. Form of Payment. The Purchaser shall pay the Purchase Price by
delivering good funds in U.S. dollars to the designated depository
for closing as determined by the Seller by delivery of securities
versus payment.
2. Subscriber Representations; Access to Information; Independent
Investigation.
a. Offshore Transaction. The Purchase represents and warrants to the
Seller as follows:
i The Purchaser is not a U.S. person as defined under
Regulation S;
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ii At the time the buy order was originated, the Purchaser was
outside the United States and is outside the United States
as of the date of the execution and delivery of this
Agreement;
iii The Purchaser is purchasing the Shares for its own account
and not on behalf of any U.S. person, and the sale has not
been prearranged with a purchaser in the United States.
Notwithstanding the contents of this paragraph, the
Purchaser may purchase the subject shares under its own
name or under the name of other Non U.S. persons as defined
under Regulation S;
iv Each distributor participating in the offering of
securities, if any, has agreed in writing that all offers
and sales of the securities prior to the expiration of a
period commencing on the date of the transaction and ending
1 year thereafter shall only be made in compliance with the
safe harbor contained in Regulation S pursuant to
registration of Shares under the Securities Act of 1933 or
pursuant to an exemption from registration;
v The Purchase represents and warrants and hereby agrees that
all offers and sales of the securities prior to the
expiration of a period commencing on the date of the
transaction and ending 1 year thereafter shall only be made
in compliance with the safe harbor contained in Regulation
S pursuant to registration of Shares under the Securities
Act of 1933 or pursuant to an exemption from registration,
and all offers and sales after the expiration of the 1 year
period shall be made only pursuant to such a registration
or to such exemption from registration;
vi The Purchaser acknowledges that the Shares have not been
registered under the Securities Act of 1933 and may not be
offered or sold in the United States or to U.S. persons
during a period commencing on the date of the transaction
and ending 1 year thereafter unless the Shares are
registered under the Securities Act of 1933 or an exemption
from the registration requirements is available;
vii The Purchaser acknowledges that the purchase of the Shares
involves a high degree of risk and further acknowledges
that it can bear the economic risk of the purchase of the
Shares including the total loss of its investment;
viii The Purchaser understands that the Shares are being offered
and sold to it in reliance on specific exemptions from the
registration requirements of the Federal and State
securities laws and that the Seller is relying upon the
truth and accuracy of the representations, warranties,
agreements, acknowledgements and understandings of the
Purchaser set forth herein in order to determine the
applicability of such exemptions and suitability of the
Purchaser to acquire the Shares.
b. Current Public Information. The Purchaser acknowledges that the
Purchaser has been furnished with or has acquired copies of the
Company's most recent Annual Report on
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the Form 10-K files with the SEC and the Forms 10-Q and 8-K filed
thereafter (collectively the "SEC Filings"), and other publicly
available documents.
c. Independent Investigation; Access. The Purchaser acknowledges that
the Purchaser is making the decision to purchase the Shares
subscribed for, has relied upon Independent Investigations made by
it and it's purchaser representatives, if any, and the Purchaser
and such representatives, if any, have, prior to any sale to it,
been given access and the opportunity to examine all material
books and records of the Corporation, all material contracts and
documents relating to this offering and an opportunity to ask
questions of, and to receive answers from the Seller or any person
acting on its behalf concerning the terms and conditions of this
offering. The Purchaser and its advisors, if any, have been
furnished with access to all publicly available materials relating
to the business, finances and operation of the Seller and
materials relating to the offer and sale of the Shares which have
been requested. The Purchaser, and its advisors, if any, have
received complete and satisfactory answers to any such inquiries.
d. No Government Recommendation or Approval. The Purchaser
understands that no Federal or State agency has passed on or made
any recommendation or endorsement of the Shares.
3. Issuer Representations.
a. Reporting Company Status. The Seller is a reporting issuer as
defined by Rule 902 of Regulation S. The Seller is in full
compliance, to the extent applicable, with all reporting
obligations under wither Section 12(b), 12(g), or 15(d) of the
Securities Act of 1934, as amended (the "Exchange Act"). The
Seller has registered its common stock pursuant to Section 12 of
the Exchange Act and the common stock trades on the OTC Electronic
Bulletin Board.
b. Offshore Transaction.
i The Seller has not offered these securities to any person
in the United States or to any U.S. person as that term is
defined in Regulation S;
ii At the time the buy order was originated, the Seller and/or
its agent reasonably believed the Purchaser was outside the
United States and was not a U.S. person;
iii The Seller and/or its agents reasonably believe that the
transaction has not been prearranged with a purchaser in
the United States.
c. No Directed Selling Efforts. In regard to this transaction, the
Seller has not conducted any "direct selling efforts" as that term
is defined in Rule 902 of Regulation S nor has the Seller
conducted any general solicitation relating to the offer and sale
of the Shares within securities to persons resident within the
United States or elsewhere.
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4. Legends on Certificates. The transaction restriction in connection with
this offshore offer and sale restrict the Purchaser from offering and
selling to U.S. persons, or for the account or benefit of a U.S. person,
for a 1 year period. The rules require the placement of such a
restrictive legend on share certificates. Rule 903 governs the 1 year
transaction restriction.
5. To the extent that the Purchaser is a resident of Ontario the Purchaser
is purchasing the Shares under the exemption from prospectus requirements
available under section 72(1)(d) of the Ontario Securities Act which
provides that the Purchaser must purchase as Principal and the trade must
have an aggregate acquisition cost of not less than $150,000. Under the
Ontario Securities Act the Shares purchased will be subject to
restrictions on resale within Ontario until such time as:
a) the appropriate "hold period" has been satisfied and the Purchaser
has complied with other applicable requirements, including the
filing of appropriate reports pursuant to applicable securities
legislation;
b) a further statutory exemption may be relied upon by the Purchaser;
or
c) an appropriate discretionary order is obtained pursuant to
applicable securities laws.
Since the Seller's not a reporting issuer in the Province of Ontario, the
applicable hold period may never expire, and if no further statutory
exemption may be relied upon and if no discretionary order or ruling is
obtained this could result in the Purchaser having to hold the Shares for
an indefinite period of time. Pursuant to the Ontario Securities Act a
restrictive legend will be placed on the certificate representing the
Shares which reflect the above referenced hold period.
6. Exemption; Reliance on Representations. The Purchaser understands that
the offer and sale of the Shares is not being registered under the 1933
Act. The Seller is relying on the rules governing offers and sales made
outside the United States pursuant to Regulation S. Rules 901 through 905
of Regulation S govern this transaction.
7. Transfer Agent Instructions. The Seller's transfer agent will be
instructed to issue one or more share certificates representing Shares
with a restrictive legend in the names of purchasers to be specified
prior to the closing and that the Shares have been issued pursuant to
Regulation S. The Seller further warrants that no instructions have been
given to the transfer agent and that these shares be freely transferable
on the books and records of the Company subject to compliance with
applicable securities laws.
8. Stock Delivery Instructions. The share certificates shall be delivered to
the Purchaser on a delivery versus payment basis at such times and places
to be mutually agreed.
9. Closing Date. The date of the issuance of the sale of the Shares (the
"Closing Date") shall be on or before March 16, 2000, or such other
mutually agreed to time and place.
10. Conditions to the Company's Obligation to Sell. The Purchaser understands
the Seller's obligation to sell the Shares to the Purchaser is
conditioned upon:
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a. The receipt and acceptance by the Seller of this Subscription
Agreement for all the Shares as evidenced by execution of this
Subscription Agreement by the President or Vice President of the
Seller;
b. Delivery into the closing depository by the Purchaser of good
funds as payment in full for the purchase of the Shares;
c. The shareholders of the Seller approving additional shares to be
authorized, if necessary, sufficient to satisfy the terms of this
Agreement.
11. Conditions to the Purchaser's Obligation to Purchase. The Seller
understands that the Purchaser's obligation to purchase the Shares is
conditioned upon:
a. Acceptance by the Purchaser of a satisfactory Subscription
Agreement for the sale of the Shares;
b. Delivery of Shares of common stock with restrictive legend;
c. The Purchaser's determination, in its sole and absolute
discretion, to acquire the Shares pursuant to this Agreement.
12. Governing Law. This Agreement shall be governed by and interpreted in
accordance of the laws of the State of Delaware.
IN WITNESS WHEREOF, This Offshore Securities Subscription Agreement was
executed on the date first written below.
DATED AT ___________________, THIS ____ DAY OF MARCH, 2000
XXXXXXX OVERSEAS LIMITED
Per:
-----------------------------------------
(Authorized Signatory)
Title: President
Accepted this ____ day of March, 2000
DELTA CAPITAL TECHNOLOGIES, INC.
Per:
-----------------------------------------
Xxxx Xxxxx, President
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