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.
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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
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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 Gordon Fretwell, #920 - 800 West Pender
St., Vancouver, BC, 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.
Paul F. Davis
Kevin K. Wong
Judith Miller
11. Upon closing, Judith Miller, 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:
Paul F. Davis, President
Kevin K. Wong, Vice President
Judith Miller, 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
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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:
Suite 255, 999 8th Street SW, Calgary, AB, 1331 Homer Street, Suite B201, Vancouver, BC, Canada
Canada T2R 1J5 V6B 1H3
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.
"Judith Miller" "Paul Davis"
- -------------------------------------- -------------------------------
Judith Miller, President Paul F. Davis, CEO
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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, Judith
Miller, 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, Judith Miller,
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
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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, Paul Davis,
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, Paul Davis, 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
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SCHEDULE I
ALLOCATION OF 5,000,000 SHARES
OF DELTA CAPITAL TECHNOLOGIES, INC. RESTRICTED COMMON STOCK
TO BE ISSUED TO:
827109 Alberta Ltd.
#255, 999 8th Street SW
Calgary, Alberta, Canada
T2R 1J5
ALLOCATION OF 5,000,000 SHARES
OF 827109 ALBERTA LTD. COMMON STOCK
TO BE ISSUED TO:
Delta Capital Technologies, Inc.
1331 Homer Street, Suite B201
Vancouver, BC
V6B 1H3
S-1