UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C
INFORMATION STATEMENT PURSUANT TO SECTION 14(c)
OF THE SECURITIES EXCHANGE ACT OF 1934
FILED BY THE REGISTRANT [X]
FILED BY PARTY OTHER THAN THE REGISTRANT [ ]
CHECK THE APPROPRIATE BOX:
[X] Preliminary Information Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14c-5(d)(2))
[ ] Definitive Information Statement
OZOLUTIONS INC.
(Name of Registrant as specified in its charter)
PAYMENT OF FILING FEE (CHECK THE APPROPRIATE BOX):
[X] No fee required.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transactions applies:
(3) Per unit price or other underlying value of transaction computed pursuant
to exchange act rule 0-11:
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by exchange act rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the form or schedule and the date of its filing.
(1) Amount previously paid:
(2) Form, schedule or registration statement no.:
(3) Filing party:
(4) Date filed:
OZOLUTIONS INC.
30 DENVER CRESCENT, SUITE 200
TORONTO, ONTARIO, CANADA M2J 1G8
TELEPHONE (416) 490-0254
November 5, 2004
To Our Stockholders:
The purpose of this information statement is to inform the holders of
record of shares of our common stock as of the close of business on the record
date, September 29, 2004 that our board of directors has recommended, and that a
majority of our stockholders intend to vote in favor of a resolution which will
change our domicile from Delaware to Nevada.
The board of directors will submit a proposal to change the state of
incorporation of Ozolutions Inc. from Delaware to Nevada. If approved by at
least a majority of the votes cast by holders of our outstanding common stock,
the change of domicile will result in a change in our jurisdiction of
incorporation from the State of Delaware to the State of Nevada and will also
result in the adoption of new articles of incorporation and bylaws for
Ozolutions Inc., which will govern us under Nevada law. If approved by the
stockholders and subject to requisite regulatory approval, it is anticipated
that the change of domicile will become effective on or about November 25, 2004
or as soon as practicable after the meeting.
The change of domicile is intended, among other things, to enable us to
take advantage of a more favorable tax structure and the flexibility of
corporate law in Nevada.
Our board of directors has reserved the right to terminate or abandon the
change of domicile at any time prior to its effectiveness, notwithstanding
stockholder approval, if the board determines for any reason that the
consummation of the change of domicile would be inadvisable or not in the best
interests of Ozolutions Inc. or our stockholders.
For a summary of the principal income tax consequences of the change of
domicile to United States stockholders and Ozolutions Inc., see "Federal Income
Tax Considerations" contained in the accompanying information statement.
If the change of domicile is completed, our stockholders will be required
to surrender their current certificates representing common stock in exchange
for certificates representing the appropriate number of shares of International
Development Corp., as a Nevada corporation. Appropriate transmittal forms will
be sent to the stockholders for these purposes.
The information statement provides a detailed description of the change of
domicile and other information to assist you in considering the matters on which
to be voted. We urge you to review this information carefully and, if you
require assistance, to consult with your financial, tax or other professional
advisers.
For the reasons set forth in the information statement, your board of
directors unanimously believes that the proposed change of domicile is in the
best interests of Ozolutions Inc. and all of its stockholders.
We appreciate your continued interest in Ozolutions Inc.
Very truly yours,
/s/ Max Weissengruber
Max Weissengruber
President
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OZOLUTIONS INC.
30 DENVER CRESCENT, SUITE 200
TORONTO, ONTARIO, CANADA M2J 1G8
TELEPHONE (416) 490-0254
INFORMATION STATEMENT
This information statement is furnished at the close of business on
September 29, 2004, the record date, to the holders of record of the outstanding
common stock of Ozolutions Inc., pursuant to Rule 14c-2 promulgated under the
Securities Exchange Act of 1934, as amended, in connection with an action that
the holders of those persons holding a majority of the votes of our stock intend
to take by written consent on November 25, 2004. The holders of a majority of
the votes of our stock intend to vote in favor of a change in our domicile from
the State of Delaware to the State of Nevada.
This information statement will be sent on or about November 5, 2004 to our
stockholders of record who have not signed the majority written consent
described herein.
VOTING SECURITIES
In accordance with our bylaws, our board of directors has fixed the close
of business on September 29, 2004 as the record date for determining the
stockholders entitled to notice of the above noted action. The approval of the
proposed change in domicile requires the affirmative vote of a majority of the
shares of our common stock issued and outstanding as of the record date at the
time the vote is taken. As of the record date, 49,154,430 shares of our common
stock were issued and outstanding. Each share of the common stock outstanding
entitles the holder to one vote on all matters brought before the common
stockholders. The quorum necessary to conduct business of the stockholders
consists of a majority of the shares of the common stock issued and outstanding
as of the record date.
We have consenting stockholders, Betty-Ann Harland, our chairman, chief
executive officer and a director, who holds, directly and by proxy, 21,000,000
shares of our common stock, Patrick Sweeney, who holds 179,705 shares of our
common stock, Mike Borelli, who holds 369,000 shares of our common stock, Brian
Robertson our chief financial officer, who holds 1,052,440 shares of our common
stock, Margaret Robertson, the wife of Brian Robertson, our chief financial
officer, who holds 164,106 shares of our common stock, Liane Robertson, who
holds 475,000 shares of our common stock, Bill Kloepfer, who holds 492,160
shares of our common stock, Elizabeth Hansen, who holds 420,000 shares of our
common stock, Poas Consultores S.A., who holds 412,400 shares of our common
stock, DCL Inversionista S.A., who holds 684,660 shares of our common stock,
Turbo Consultores S.A., who holds 471,200 shares of our common stock, E & L
Consultores S.A., who holds 265,500 shares of our common stock, and Arenal
Holdings S.A., who holds 510,000 shares of our common stock. Together, our
consenting stockholders hold 26,496,171 shares of our common stock which number
exceeds the majority of the issued and outstanding shares of our common stock.
Our consenting stockholders will have the power to pass the proposed
corporate actions without the concurrence of any of our other stockholders.
ACCORDINGLY, WE ARE NOT ASKING OUR STOCKHOLDERS FOR A PROXY AND
STOCKHOLDERS ARE REQUESTED NOT TO SEND A PROXY.
DISTRIBUTION AND COSTS
We will pay all costs associated with the distribution of this information
statement, including the costs of printing and mailing. In addition, we will
only deliver one information statement to multiple security holders sharing an
address, unless we have received contrary instructions from one or more of the
security holders. Also, we will promptly deliver a separate copy of this
information statement and future stockholder communication documents to any
security holder at a shared address to which a single copy of this information
statement was delivered, or deliver a single copy of this information statement
and future stockholder communication documents to
1
any security holder or holders sharing an address to which multiple copies are
now delivered, upon written request to us at our address noted above.
Security holders may also address future requests regarding delivery of
information statements and/or annual reports by contacting us at the address
noted above.
DISSENTERS' RIGHT OF APPRAISAL
Delaware law provides for a right of a stockholder to dissent to the
proposed merger and obtain appraisal of or payment for such stockholder's
shares. See "Change of Domicile - Dissent Rights of Our Stockholders."
CHANGE OF DOMICILE
PLAN OF MERGER
We are proposing to change our state of incorporation from Delaware to
Nevada by means of a merger permitted under the corporate statutes of both
states. The merger will be between Ozolutions Inc., a Delaware corporation, and
International Development Corp., a Nevada corporation, organized by us for the
specific purpose of the change of domicile. A copy of the special resolution
authorizing the change of domicile to be voted on by our stockholders is
contained in Attachment A. The merger will be consummated pursuant to a Plan of
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Merger, a copy of which is contained in Attachment B. Copies of the articles of
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incorporation and bylaws, which will serve as our articles of incorporation and
bylaws following the change of domicile are attached to the Plan of Merger. The
Plan of Merger provides that Ozolutions Inc. will merge into International
Development Corp. Following the merger, International Development Corp. will be
the surviving entity.
International Development Corp. is a newly formed corporation with one
share of common stock issued and outstanding held by Betty-Ann Harland, our
chairman, chief executive officer and a director, with only minimal capital.
The terms of the merger provide that the currently issued one share of the
common stock of International Development Corp. held by Ms. Harland will be
cancelled. As a result, following the merger, our current stockholders will be
the only stockholders of the newly merged corporation.
The change of domicile will not interrupt the existence of Ozolutions Inc.
Each share of our common stock will remain issued and outstanding as a share of
the common stock of International Development Corp. after the change of domicile
from Delaware to Nevada. For a summary of certain of the rights of stockholders
of Ozolutions Inc. before and after the change of domicile, see "Change of
Domicile - Effect of the Change of Domicile on Stockholder Rights."
Officers and Directors. Our board of directors currently consists of five
members, Betty-Ann Harland, Max Weissengruber, Douglas Robertson, Robert W.
Gingell, and Arthur N. Kelly. Upon the change of domicile, our board of
directors will consist of the same individuals who are currently the directors
of Ozolutions Inc., and who are named as the directors in the articles of
incorporation filed pursuant to our change of domicile into Nevada.
Additionally, immediately following the change of domicile, our officers will be
Betty-Ann Harland, chairman and chief executive officer, Max Weissengruber,
president and chief operating officer, and Brian Robertson, chief financial
officer. See "Management - Executive Officers and Directors."
Exchange of Share Certificates. As soon as practicable on or after the
change of domicile, our stockholders of record immediately prior to the change
of domicile will be sent detailed instructions concerning the procedures to be
followed for submission of certificates representing our common stock to our
transfer agent, together with a form of transmittal letter to be sent to the
transfer agent at the time such certificates are submitted.
After the change of domicile, the transfer agent will deliver to any holder
who has previously submitted a duly completed and executed transmittal letter
and a certificate representing the common stock, a certificate issued by us
representing an equal number of shares of our common stock as a Nevada
corporation into which such shares of the common stock were converted.
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After the change of domicile but before a certificate representing common
stock is surrendered, certificates representing common stock will represent the
number of shares of our common stock as a Nevada corporation into which such
common stock was converted pursuant to the terms of the change of domicile. Our
transfer agent will deliver certificates representing the appropriate amount and
type of our capital stock in accordance with the stockholder's instructions for
transfer or exchange.
Failure by a stockholder to return appropriate transmittal letters or to
surrender certificates representing common stock will not affect such person's
rights as a stockholder, as such stockholder's certificates representing common
stock following the change of domicile will represent the number of shares of
our common stock as a Nevada corporation into which such common stock was
converted pursuant to the terms of the change of domicile, and will present no
material consequences to us.
CONDITIONS TO THE CHANGE OF DOMICILE; STOCKHOLDER APPROVALS
Change of Domicile. The change of domicile is subject to, among other
things:
- - The approval by our stockholders of the special resolution authorizing the
change of domicile (a copy of which is contained in Attachment A) by the
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affirmative vote of at least the majority of our common stock issued and
outstanding on the record date;
- - The filing of Articles of Merger with the Secretary of State of Nevada; and
- - The filing of a Certificate of Merger with the Secretary of State of
Delaware.
Notwithstanding the requisite stockholder approvals of the change of
domicile, our board of directors has reserved the right to terminate or abandon
the change of domicile without further stockholder approval if the board
determines that the consummation of the change of domicile would be inadvisable
or not in our best interests or our stockholders, or if all of the respective
conditions to consummation of the change of domicile have not occurred within a
reasonable period of time.
FILING OF ARTICLES OF MERGER
The change of domicile is subject to filing of Articles of Merger with the
Secretary of State of Nevada pursuant to the Nevada Revised Statutes and the
Certificate of Merger with the Secretary of State of Delaware pursuant to the
Delaware General Corporation Law. When the special resolution is passed by the
requisite number of holders of the shares of our common stock, we intend to file
the Articles of Merger and the Certificate of Merger.
Under the Delaware General Corporation Law and the Nevada Revised Statutes,
when the merger takes effect:
- - Every other entity that is a constituent entity (in our case, Ozolutions
Inc., a Delaware corporation) merges into the surviving entity
(International Development Corp.) and the separate existence of every
entity except the surviving entity ceases;
- - The title to all real estate and other property owned by each merging
constituent entity is vested in the surviving entity without reversion or
impairment;
- - The surviving entity has all of the liabilities of each other constituent
entity;
- - A proceeding pending against any constituent entity may be continued as if
the merger had not occurred or the surviving entity may be substituted in
the proceeding for the entity whose existence has ceased;
- - The articles of incorporation of the surviving entity are amended to the
extent provided in the plan of merger; and
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- - The stockholders' interests of each constituent entity that are to be
converted into stockholders' interests, obligations or other securities of
the surviving or any other entity or into cash or other property are
converted, and the former holders of the stockholders' interests are
entitled only to the rights provided in the Articles of Merger or any
created pursuant to Chapters 92A.300 to 92A.500, inclusive, of the Nevada
Revised Statutes and Section 262 of the Delaware General Corporation Law
dealing with dissenter's rights.
Resales of Our Common Stock. Pursuant to Rule 145 under the Securities Act
of 1933, the merger of Ozolutions Inc. as a Delaware corporation into a Nevada
corporation and the exchange of our shares of common stock in the Delaware
corporation into the shares of the common stock of the Nevada corporation is
exempt from registration under the Securities Act, since the sole purpose of the
transaction is a change of our domicile within the United States. The effect of
the exemption is that the shares of our common stock issuable in the change of
domicile may be resold by the former stockholders without restriction to the
same extent that such shares may have been sold before the change of domicile.
Accounting for the Transaction. Upon consummation of the change of
domicile, the historical financial statements of the Delaware company will
become the historical financial statements of the Nevada company. Total
stockholders' equity will be unchanged as a result of the change of domicile.
PRINCIPAL REASONS FOR THE CHANGE OF DOMICILE
We have chosen to change our state of incorporation in order to take
advantage of several features of Nevada corporate law which are expected to help
us reduce our taxes and to facilitate our corporate actions. A comparison of
Nevada and Delaware law follows:
- - Corporations domiciled in Nevada do not pay a franchise tax or a corporate
income tax. Delaware imposes a corporate income tax.
- - Under Nevada law, unless otherwise provided in the articles of
incorporation, a corporation that desires to change the number of shares of
a class or series, if any, of its authorized stock by increasing or
decreasing the number of authorized shares of the class or series and
correspondingly increasing or decreasing the number of issued and
outstanding shares of the same class or series held by each stockholder of
record at the effective date and time of the change, except as otherwise
provided in subsections 2 and 3 of Chapter 78.207 of the Nevada Revised
Statutes, may do so by a resolution adopted by the board of directors,
without obtaining the approval of the stockholders. The resolution may also
provide for a change of the par value, if any, of the same class or series
of the shares increased or decreased. After the effective date and time of
the change, the corporation may issue its stock in accordance therewith.
The second bullet point above is especially important to us, inasmuch as we
will be able to change our authorized shares to more efficiently meet our
current needs. Presently, we need to go to the time and expense of having a
stockholders' meeting in order to change our authorized shares. We must be able
to quickly deal with situations calling for us to modify our capital structure.
EFFECT OF CHANGE OF DOMICILE ON STOCKHOLDER RIGHTS
On the effective date of the merger resulting in our change of domicile,
Ozolutions Inc. will be deemed incorporated under the Nevada Revised Statutes.
Consequently, we will be governed by the articles of incorporation and bylaws
filed with the Articles of Merger. The following summary describes the material
consequences of the change of domicile to our stockholders, in addition to the
differences in state law described above in "Change of Domicile - Principal
Reasons for the Change of Domicile." This summary does not purport to be
exhaustive and is qualified in its entirety by reference to our current articles
of incorporation and bylaws, and the proposed new articles of incorporation and
bylaws. The text of the proposed articles of incorporation and bylaws are
included in this information statement as exhibits to the Plan of Merger
described in Attachment B. A copy of our current articles of incorporation,
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bylaws, the Delaware Statutes, and the Revised Nevada Statutes will be available
for reference by the stockholders of Ozolutions Inc. or their legal advisers at
our registered office.
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Capital Structure. Under our proposed articles of incorporation, the total
number of shares of capital stock that we will have the authority to issue is
900,000,000 consisting of 800,000,000 shares of common stock, par value $0.001
per share, and 100,000,000 shares of preferred stock, par value $0.001 per
share. Under our current articles of incorporation, Ozolutions Inc. presently
has the authority to issue only 50,000,000 shares of common stock, par value
$0.001 per share and no shares of preferred stock.
Common Stock. Currently, the holders of our common stock are entitled to
one vote for each share held of record on all matters submitted to a vote of our
stockholders, including the election of directors. Following the change of
domicile, the holders of our common stock will have the same voting rights.
Also, our stockholders do not have and will not have cumulative voting rights.
Following the change in domicile, subject to preferences that may be applicable
to any then outstanding series of our preferred stock, holders of our common
stock will be entitled to receive ratably such dividends, if any, as may be
declared by our board of directors out of legally available funds. In the event
of our liquidation, dissolution, or winding up, the holders of our common stock
will be entitled to share ratably in the net assets legally available for
distribution to our stockholders after the payment of all our debts and other
liabilities, subject to the prior rights of any series of our preferred stock
then outstanding. The holders of our common stock do not have and will not have
following the change of domicile any preemptive or conversion rights or other
subscription rights and there are not now nor will there be any redemption or
sinking fund provisions applicable to our common stock.
Preferred Stock. Following the change of domicile, in accordance with the
Nevada Revised Statutes, our board of directors will have the authority to fix
the number of shares of preferred stock and the designations, preferences,
powers and relative, participating, optional or other special rights and the
qualifications or restrictions on such rights. The preferences, powers, rights
and restrictions of different series of our preferred stock may vary with
respect to dividend rates, amounts payable on liquidation, voting rights,
conversion rights, redemption provisions, sinking fund provisions, purchase
funds, and other matters. The holders of our preferred stock will have no
preemptive or cumulative voting rights.
Following the change of domicile, we will have the authority to issue
shares of our preferred stock with the rights and preferences as those
established by our certificate of designation of Series A preferred stock,
contained in Attachment C to this information statement.
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Authorizing 800,000,000 shares of common stock and the authorizing of
series of preferred stock would give the board of directors the express
authority, without further action of the shareholders, to issue common stock or
preferred stock from time to time as the board deems necessary. The board of
directors believes it is necessary to have the ability to issue such additional
shares of common stock or preferred stock for general corporate purposes.
Potential uses of the additional authorized shares may include equity
financings, issuance of options, acquisition transactions, stock dividends or
distributions, without further action by the shareholders, unless such action
were specifically required by applicable law or rules of any stock exchange or
similar system on which our securities may then be listed.
Issuance of Additional Shares. Following the change of domicile, we have
no plans to issue any additional shares of common stock or any shares of our
newly authorized preferred stock.
The proposed increase in the authorized number of shares of common stock
and the authorization of preferred stock could have a number of effects on our
stockholders depending upon the exact nature and circumstances of any actual
issuance of authorized but unissued shares. The increase could have an
anti-takeover effect, in that the additional shares could be issued (within the
limits imposed by applicable law) in one or more transactions that could make a
change in control or takeover of our company more difficult. For example,
additional shares could be issued by us so as to dilute the stock ownership or
voting rights of persons seeking to obtain control of the company.
The proposed change in our capital structure is not being made by us in
response to any known accumulation of shares or threatened takeover. Similarly,
the issuance of additional shares to certain persons allied with our management
could have the effect of making it more difficult to remove our current
management by diluting the stock ownership or voting rights of persons seeking
to cause such removal. In addition, an issuance of additional shares by us
could have an effect on the potential realizable value of a stockholder's
investment.
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In the absence of a proportionate increase in our earnings and book value,
an increase in the aggregate number of our outstanding shares caused by the
issuance of additional shares of our common stock would dilute the earnings per
share and book value per share of all outstanding shares of our common stock.
If such factors were reflected in the price per share of common stock, the
potential realizable value of a stockholder's investment could be adversely
affected.
Stockholder Consent in Lieu of Meeting. Under both the Delaware Statutes
and the Nevada Revised Statutes, stockholder action may be taken without a
meeting if stockholders holding the requisite voting power execute a consent.
Our proposed articles of incorporation provide that our stockholders may take
action if stockholders holding the requisite voting power execute a consent in
lieu of a meeting, if the action to be taken by written consent has been
approved in advance by our board of directors.
CERTAIN PROVISIONS OF OUR PROPOSED ARTICLES OF INCORPORATION AND BYLAWS
General. Provisions of our articles of incorporation and bylaws concern
matters of corporate governance and the rights of our stockholders, such as the
ability of our board of directors to issue shares of our common and preferred
stock and to set the voting rights, preferences, and other terms of our
preferred stock without further stockholder action. These provisions could also
delay or frustrate the removal of incumbent directors or the assumption of
control of our board of directors by our stockholders, and may be deemed to
discourage takeover attempts, mergers, tender offers, or proxy contests not
first approved by our board of directors, which some stockholders may deem to be
in their best interests.
Board of Directors. Our business and affairs will continue to be managed
under the direction of our board of directors, which currently consists of five
members. The number of members on our board of directors is fixed by, and may
be increased or decreased from time to time by, the affirmative vote of a
majority of the members at any time constituting our board of directors.
Newly created directorships resulting from any increase in the number of
directors and any vacancies on our board of directors resulting from death,
resignation, disqualification, removal or other causes shall be filled by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the board of directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term for which the new directorship was created or the vacancy occurred
and until the director's successor shall have been elected and qualified or
until his earlier death, resignation, or removal. No decrease in the number of
directors constituting the board of directors shall shorten the term of any
incumbent director. Our board of directors may not have less than one member.
There is no limit on the maximum size of our board.
Whenever the holders of any class or series of our capital stock are
entitled to elect one or more directors under any resolution or resolutions of
our board of directors designating a series of our preferred stock, vacancies
and newly created directorships of a class or series may be filled by a majority
of the directors then in office elected by the applicable class or series, by a
sole remaining director so elected, or by the written consent, or the
affirmative vote of a majority of the outstanding shares of the class or series
entitled to elect the directors.
Any director may be removed from office only by the affirmative vote of the
holders of a majority of the combined voting power of our then outstanding
shares of capital stock entitled to vote at a meeting of stockholders called for
that purpose, voting together as a single class.
Meetings of Stockholders. Our articles of incorporation will provide that
a special meeting of our stockholders may only be called by:
- - Our president;
- - The holders of at least 10 percent of the outstanding shares of our capital
stock entitled to vote at the proposed special meeting; or
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- - Our board of directors by means of a duly adopted resolution.
Special stockholder meetings may not be called by any other person or in
any other manner. Our bylaws provide that only those matters set forth in the
notice of the special meeting may be considered or acted upon at the special
meeting. Our articles of incorporation do not permit our stockholders to take
an action by written consent unless the action to be taken and the taking of
that action by written consent have been approved in advance by our board of
directors.
Limitation of Liability. Our articles of incorporation will provide that
any director or officer shall not be personally liable to us or our stockholders
for damages as a result of any act or failure to act in his capacity as a
director or officer, unless:
- - It is proven that his act or failure to act constituted a breach of his
fiduciary duties and involved intentional misconduct, fraud, or a knowing
violation of law; or
- - Such person is a director liable under Section 78.300 of the Nevada Revised
Statutes for the payment of an improper distribution by us to our
stockholders.
Indemnification. Our articles of incorporation will provide that we shall
indemnify anyone who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, except an action by us or in our
right, by reason of the fact that he is or was a director, officer, employee, or
agent of our company, or is or was serving at our request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with the action, suit or proceeding if:
- - The liability did not result from any act or failure to act which
constituted a breach of that person's fiduciary duties in his capacity as a
director or officer, and involved intentional misconduct, fraud, or a
knowing violation of law; or
- - The person acted in good faith and in a manner which he reasonably believed
to be in, or not opposed to, our best interests, and with respect to any
criminal action or proceeding, he had no reasonable cause to believe his
conduct was unlawful.
Further, our proposed articles of incorporation will permit us to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by us or in our right, to
procure a judgment in our favor by reason of the fact that he is or was a
director, officer, employee, or agent of our company, or is or was serving at
our request as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses,
including amounts paid in settlement and attorneys' fees actually and reasonably
incurred by him in connection with defense or settlement of the action or suit,
if:
- - The liability did not result from any act or failure to act which
constituted a breach of that person's fiduciary duties in his capacity as a
director or officer, and involved intentional misconduct, fraud or a
knowing violation of law; or
- - The person acted in good faith and in a manner which he reasonably believed
to be in, or not opposed to, our best interests.
However, we will be prohibited from indemnifying any person with respect to
any action, suit, or proceeding by a court of competent jurisdiction, if he has
been finally adjudged to be liable to us, unless, and only to the extent that,
the court of competent jurisdiction determines upon application that the person
is fairly and reasonably entitled to indemnification in view of all the
circumstances of the case.
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Our proposed bylaws will contain similar indemnification and limitation of
liability provisions. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers, or persons
controlling our company under the indemnification provisions, or otherwise, we
are aware that, in the opinion of the SEC, the indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
Permitted Combinations. Our proposed articles of incorporation will
expressly provide that we will not be governed by Nevada Revised Statutes 78.411
to 78.444, inclusive, which means that we are not subject to the restrictions
contained in the NRS applicable to mergers and other forms of combinations with
holders of 10 percent or more of our stock.
Amendment of Bylaws. Under our proposed articles of incorporation, our
proposed bylaws may be amended by our board of directors or by the affirmative
vote of the holders of at least a majority of the combined voting power of the
outstanding shares of our capital stock then outstanding and entitled to vote,
voting together as a single class.
DISSENT RIGHTS OF OUR STOCKHOLDERS
Under Delaware law, our stockholders are entitled, after complying with
certain requirements of Delaware law, to dissent to the approval of the merger,
pursuant to Section 262 of the Delaware General Corporation Law and to be paid
the "fair value" of their shares of Ozolutions Inc. common stock in cash by
complying with the procedures set forth in Section 262 of the Delaware General
Corporation Law. Set forth below is a summary of the procedures relating to the
exercise of dissenters' rights by our stockholders. This summary does not
purport to be a complete statement of the provisions of Section 262 of the
Delaware General Corporation Law and is qualified in its entirety by reference
to such provisions, which are contained in Attachment D to this information
------------
statement.
Under Delaware law, if you do not wish to accept the cash payment provided
for in the merger agreement, you have the right to dissent from the merger and
to receive payment in cash for the fair value of your shares of our common
stock, exclusive of any element of value arising from the accomplishment or
expectation of the merger. Stockholders electing to exercise appraisal rights
must comply with the provisions of Section 262 of the Delaware General
Corporation Law in order to perfect their rights. We will require strict
compliance with the statutory procedures.
The following is intended as a brief summary of the material provisions of
the Delaware statutory procedures required to be followed by a stockholder in
order to dissent from the merger and perfect appraisal rights.
Section 262 requires that stockholders be notified that appraisal rights
will be available not less than 20 days before the special meeting to vote on
the merger. A copy of Section 262 must be included with such notice. This
information statement constitutes our notice to our stockholders of the
availability of appraisal rights in connection with the merger in compliance
with the requirements of Section 262. If you wish to consider exercising your
appraisal rights, you should carefully review the text of Section 262 contained
in Attachment D to this information statement since failure to timely and
-------------
properly comply with the requirements of Section 262 will result in the loss of
your appraisal rights under Delaware law.
If you elect to demand appraisal of your shares of our common stock, you
must satisfy each of the following conditions:
- - You must deliver to us a written demand for appraisal of your shares of our
common stock before the vote with respect to the merger is taken. This
written demand for appraisal must be in addition to and separate from any
proxy or vote abstaining from or voting against adoption of the merger
agreement. Voting against or failing to vote for adoption of the merger
agreement by itself does not constitute a demand for appraisal within the
meaning of Section 262;
- - You must not vote in favor of adoption of the merger agreement. A vote in
favor of the adoption of the merger agreement, by proxy or in person, will
constitute a waiver of your appraisal rights in respect of the shares of
our common stock so voted and will nullify any previously filed written
demands for appraisal.
- 8 -
If you fail to comply with either of these conditions and the merger is
completed, you will be entitled to receive the cash payment for your shares of
our common stock as provided for in the merger agreement, but you will have no
appraisal rights with respect to your shares of our common stock.
All demands for appraisal should be addressed to Mr. Max Weissengruber at
Ozolutions Inc., 30 Denver Crescent, Suite 200, Toronto, Ontario, Canada M2J
1G8, before the vote on the merger is taken at the special meeting, and should
be executed by, or on behalf of, the record holder of the shares of our common
stock. The demand must reasonably inform us of the identity of the stockholder
and the intention of the stockholder to demand appraisal of his shares of our
common stock.
To be effective, a demand for appraisal by a holder of our common stock
must be made by, or in the name of, such registered stockholder, fully and
correctly, as the stockholder's name appears on his stock certificate(s) and
cannot be made by the beneficial owner if he does not also hold the shares of
record. The beneficial holder must, in such cases, have the registered owner
submit the required demand in respect of those shares.
If shares of our common stock are owned of record in a fiduciary capacity,
such as by a trustee, guardian or custodian, execution of a demand for appraisal
should be made in that capacity; and if the shares of our common stock are owned
of record by more than one person, as in a joint tenancy or tenancy in common,
the demand should be executed by or for all joint owners. An authorized agent,
including an authorized agent for two or more joint owners, may execute the
demand for appraisal for a stockholder of record; however, the agent must
identify the record owner or owners and expressly disclose the fact that, in
executing the demand, he is acting as agent for the record owner. A record
owner, such as a broker, who holds shares of our common stock as a nominee for
others, may exercise his right of appraisal with respect to the shares of our
common stock held for one or more beneficial owners, while not exercising this
right for other beneficial owners. In that case, the written demand should
state the number of shares of our common stock as to which appraisal is sought.
Where no number of shares is expressly mentioned, the demand will be presumed to
cover all shares held in the name of the record owner.
If you hold your shares of our common stock in a brokerage account or in
other nominee form and you wish to exercise appraisal rights, you should consult
with your broker or the other nominee to determine the appropriate procedures
for the making of a demand for appraisal by the nominee.
Within 10 days after the effective date of the merger, we must give written
notice that the merger has become effective to each stockholder who has properly
filed a written demand for appraisal and who did not vote in favor of the merger
or consent to the merger. At any time within 60 days after the effective date,
any stockholder who has demanded an appraisal has the right to withdraw the
demand and to accept the cash payment specified by the merger agreement for his
shares of our common stock. Within 120 days after the effective date, either we
or any stockholder who has complied with the requirements of Section 262 may
file a petition in the Delaware Court of Chancery demanding a determination of
the fair value of the shares of our common stock held by all stockholders
entitled to appraisal. We have no obligation to file such a petition in the
event there are dissenting stockholders. Accordingly, the failure of any
stockholder to file such a petition within the period specified could nullify
previously written demands for appraisal.
If a petition for appraisal is duly filed by a stockholder and a copy of
the petition is delivered to us, we will then be obligated, within 20 days after
receiving service of a copy of the petition, to provide the Delaware Court of
Chancery with a duly verified list containing the names and addresses of all
stockholders who have demanded an appraisal of their shares of our common stock.
After notice to dissenting stockholders, the Delaware Court of Chancery is
empowered to conduct a hearing upon the petition, and to determine those
stockholders who have complied with Section 262 and who have become entitled to
the appraisal rights provided thereby. The Delaware Court of Chancery may
require the stockholders who have demanded payment for their shares to submit
their certificates representing shares of our common stock to the Register in
Chancery for notation thereon of the pendency of the appraisal proceedings; and
if any stockholder fails to comply with that direction, the Delaware Court of
Chancery may dismiss the proceedings as to that stockholder.
After determination of the stockholders entitled to appraisal of their
shares of our common stock, the Delaware Court of Chancery will appraise the
shares, determining their fair value exclusive of any element of value arising
from the accomplishment or expectation of the merger, together with a fair rate
of interest. When the value
- 9 -
is determined, the Delaware Court of Chancery will direct the payment of such
value, with interest thereon accrued during the pendency of the proceeding, if
the Delaware Court of Chancery so determines, to the stockholders entitled to
receive the same, upon surrender by such holders of the certificates
representing those shares of our common stock.
In determining fair value, the Delaware Court of Chancery is required to
take into account all relevant factors. You should be aware that the fair value
of your shares as determined under Section 262 could be more, the same or less
than the value that you are entitled to receive under the terms of the merger
agreement.
Costs of the appraisal proceeding may be imposed upon us and the
stockholders participating in the appraisal proceeding by the Delaware Court of
Chancery as the Delaware Court of Chancery deems equitable in the circumstances.
Upon the application of a stockholder, the Delaware Court of Chancery may order
all or a portion of the expenses incurred by any stockholder in connection with
the appraisal proceeding, including, without limitation, reasonable attorneys'
fees and the fees and expenses of experts, to be charged pro rata against the
value of all shares entitled to appraisal. Any stockholder who had demanded
appraisal rights will not, after the effective date, be entitled to vote shares
subject to that demand for any purpose or to receive payments of dividends or
any other distribution with respect to those shares, other than with respect to
payment as of a record date prior to the effective date; however, if no petition
for appraisal is filed within 120 days after the effective date of the merger,
or if the stockholder delivers a written withdrawal of his demand for appraisal
and an acceptance of the merger within 60 days after the effective date of the
merger, then the right of that stockholder to appraisal will cease and that
stockholder will be entitled to receive the cash payment for his shares of our
common stock pursuant to the merger agreement. Any withdrawal of a demand for
appraisal made more than 60 days after the effective date of the merger may only
be made with the written approval of the successor corporation and must, to be
effective, be made within 120 days after the effective date.
In view of the complexity of Section 262, stockholders who may wish to
dissent from the merger and pursue appraisal rights should consult their legal
advisers.
VOTE REQUIRED
The affirmative vote of a majority of the total number of shares of our
issued and outstanding capital stock is required to approve the change in our
domicile.
The board of directors recommends a vote FOR approval of a change in our
domicile. The proposed change in our domicile was approved by a vote of our
directors on October 25, 2004.
Information regarding the beneficial ownership of our common stock by
management and the board of directors is noted below.
INTENTIONALLY LEFT BLANK.
- 10 -
MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table sets forth information concerning the directors and
executive officers of Ozolutions Inc. as of the date of this information
statement:
NAME AGE POSITION POSITION HELD SINCE
----------------- --- --------------------------------------- -------------------
Betty-Ann Harland 52 Chairman, Chief Executive Officer, and 2004
Director
Max Weissengruber 66 President, Chief Operating Officer, and 2000
Director
Brian Robertson 62 Chief Financial Officer N/A
Douglas Robertson 66 Director 2001
Robert W. Gingell 53 Director 2004
Arthur N. Kelly 43 Director 2004
Our executive officers are elected annually by our board of directors.
There are no family relationships among our directors and executive officers.
See "Certain Provisions of Our Articles of Incorporation and Bylaws" for the
manner of election and term of office of our directors.
We may employ additional management personnel as our board of directors
deems necessary. We have not identified or reached an agreement or
understanding with any other individuals to serve in management positions. We
do not anticipate any difficulty in employing qualified staff.
A description of the business experience during the past several years for
each of our directors and executive officers is set forth below.
Betty-Ann Harland has 31 years of experience in a variety of senior
management positions. Prior to becoming our chief executive officer, she was
vice-president of Ameri-can Equipment Sales and Leasing. Prior to joining
Ameri-can Equipment Sales and Leasing, she fulfilled a number of significant
managerial responsibilities in the automotive industry. From 1988 to 1993, she
worked in finance and insurance and sales consulting for Decarie Motors, a
Montreal luxury car dealer carrying Jaguar, Rolls Royce, Bentley and Range Rover
product lines. From 1994 until 1995, she was a finance and insurance specialist
for Addison Bay, a Toronto Cadillac, Pontiac, and Buick dealer.
Max Weissengruber has served as our president since April, 2000. From 1980
to 1984, he was a manager of consulting services for KPMG, a world wide
professional consulting firm specializing in business advice fro small and
medium sized companies. He then joined Wilson Learning International as
director of marketing specializing in sales and customer service consulting for
firms such as General Motors and IBM. In 1993 he became managing partner and
owner of Acris Partners, a marketing and consulting firm specializing in
employee surveys and marketing communications and sales training programs. A
graduate in Behavioral Sciences from Michigan State University, he has taught
Organizational Behaviour at the University of Toronto and Entrepreneurial
Studies for the MBA Program at the Canadian School of Management in Toronto.
Brian Robertson, a Chartered Accountant, is responsible for our financial
management, preparation of all financial reports, forecasts and budgets as well
as assuring financial compliance with all regulatory authorities and liaison
with auditors. In 1959, he joined Touche Ross & Co. and obtained his Chartered
Accountant's degree in 1964. In 1982, he became an investment advisor for a
national investment dealer and in 1988, he became a vice-president and director
of Continental Securities Limited. During the 1990's, he was self-employed as a
business and financial consultant to a number of different business enterprises.
In 2000, he was instrumental in founding
- 11 -
Ozolutions Inc. where he continued to act as a financial consultant and business
advisor in the development of our water treatment business.
Douglas R. Robertson, has served as our chief financial officer from July
2003 until September 23, 2004. Mr. Robertson has been general manager of MTL
Trading of Toronto, Ontario since May 2001. MTL Trading is engaged in the
business of buying and selling meat and poultry products. For over five years
prior to May 2001, Mr. Robertson was the president and owner of Robertson Foods
of Toronto, Ontario, a company engaged in the business of exporting pork, beef
and poultry.
Robert W. Gingell has been an account specialist for Wesco Distribution of
Hamilton, Ontario, since 2003 until the present. From 2001 until 2003, he was a
technical sales representative for Siemens Westinghouse Technical Services in
Toronto, Ontario. From 1999 until 2001, he was senior account manager for
Ainsworth Inc., Toronto, Ontario. From 1994 until 1999, he was a sales manager
for G. E. Canada - Power Systems Division, Burlington, Ontario.
Arthur N. Kelly has 18 years of marketing, sales and management experience
and is currently vice president of sales-North America for ELTEK Energy where he
is responsible for the development and growth of all ELTEK Energy sales in the
U.S. and Canadian markets. He attended Concordia University in Montreal where
he earned his Bachelor of Business Administration degree. Mr. Kelly held
various sales and management positions with Marconi Communications from 1988 to
2001 where he was responsible for sales of power generation and communication
supplies to major North American communications companies. Mr. Kelly was sales
manager for S.N.P. Associates in France from 1986 to 1988 and also district
sales manager for Pylon Electronics in Montreal from 1985 to 1986.
FEDERAL TAX CONSEQUENCES
The following is a discussion of certain federal income tax considerations
that may be relevant to holders of our common stock who receive the common stock
of International Development Corp. as a result of the proposed change of
domicile. No state, local, or foreign tax consequences are addressed herein.
This discussion does not address the state, local, federal or foreign
income tax consequences of the change of domicile that may be relevant to
particular stockholders, such as dealers in securities, or our stockholders who
exercise dissenters' rights. In view of the varying nature of such tax
considerations, each stockholder is urged to consult his own tax adviser as to
the specific tax consequences of the proposed change of domicile, including the
applicability of federal, state, local, or foreign tax laws. Subject to the
limitations, qualifications and exceptions described herein, and assuming the
change of domicile qualifies as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended, the following federal
income tax consequences generally should result:
- - No gain or loss should be recognized by the stockholders of Ozolutions Inc.
upon conversion of their common stock into common stock of the Nevada
company pursuant to the change of domicile;
- - The aggregate tax basis of the common stock received by each stockholder of
Ozolutions Inc. in the change of domicile should be equal to the aggregate
tax basis of our common stock converted in exchange therefor;
- - The holding period of our common stock received by each stockholder of
Ozolutions Inc. in the change of domicile should include the period during
which the stockholder held his common stock converted therefor, provided
such common stock is held by the stockholder as a capital asset on the
effective date of the change of domicile; and
- - Ozolutions Inc. should not recognize gain or loss for federal income tax
purposes as a result of the change of domicile.
Ozolutions Inc. has not requested a ruling from the Internal Revenue
Service with respect to the federal income tax consequences of the change of
domicile under the Code. We expect to receive an opinion from our legal
- 12 -
counsel, Glast, Phillips & Murray, P.C., substantially to the effect that the
change of domicile should qualify as a reorganization within the meaning of
Section 368(a) of the Code. The tax opinion will neither bind the IRS nor
preclude it from asserting a contrary position, and will be subject to certain
assumptions and qualifications, including representations made by us. We
believe the change of domicile will constitute a tax-free reorganization under
Section 368(a) of the Code, inasmuch as Section 368(a)(1)(F) of the Code defines
a reorganization as a mere change in identity, form, or place of organization of
our corporation.
PRINCIPAL STOCKHOLDERS
The following table presents information regarding the beneficial ownership
of all shares of our common stock as of the record date by:
- - Each person who beneficially owns more than five percent of the outstanding
shares of our common stock;
- - Each of our directors;
- - Each named executive officer; and
- - All directors and officers as a group.
COMMON SHARES BENEFICIALLY
--------------------------
OWNED(2)
--------
NAME OF BENEFICIAL OWNER(1) NUMBER PERCENT
------------------------------------------------------------- ------------- -----------
Betty-Ann Harland (3) . . . . . . . . . . . . . . . . . . . . 15,000,000 30.51
Max Weissengruber . . . . . . . . . . . . . . . . . . . . . . -0- -0-
Brian Robertson (4) . . . . . . . . . . . . . . . . . . . . . 1,726,546 3.51
Douglas Robertson . . . . . . . . . . . . . . . . . . . . . . -0- -0-
Robert W. Gingell . . . . . . . . . . . . . . . . . . . . . . -0- -0-
Arthur N. Kelly . . . . . . . . . . . . . . . . . . . . . . . -0- -0-
------------- -----------
All directors and executive officers as a group (six persons) 16,726,546 34.02
------------- -----------
Non officer and directors five percent stockholders:
1421209 Ontario Limited . . . . . . . . . . . . . . . . . . . 6,000,000 12.21
------------- -----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,726,546 46.23
============= ===========
_______________
(1) Unless otherwise indicated, the address for each of these stockholders is
c/o Ozolutions Inc., 30 Denver Crescent, Suite 200, Toronto, Ontario,
Canada M2J 1G8. Also, unless otherwise indicated, each person named in the
table above has the sole voting and investment power with respect to our
shares of common stock which he beneficially owns.
(2) Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission. As of the date of this Information
Statement, there were issued and outstanding 49,154,430 shares of our
common stock.
(3) Ms. Harland also has proxies to vote 6,000,000 shares of our common stock
granted by 1421209 Ontario Limited.
(4) Mr. Robertson owns directly 1,052,440 shares of our common stock and his
wife, Margaret Robertson, owns 164,106 shares of our common stock. Mr.
Robertson is a controlling shareholder of Arenal Holdings S.A., which owns
510,000 shares of our common stock.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
CHANGE OF CONTROL
On September 23, 2004, Betty-Ann Harland acquired 15,000,000 shares of our
common stock, which represented 30.51 percent of our issued and outstanding
common stock. In addition, Ms. Harland has proxies to vote 6,000,000 shares of
our common stock, granted by 1421209 Ontario Limited. The proxies expire on
February 1, 2005. Ms. Harland was elected as our chairman of the board, chief
executive officer and director on September 23, 2004.
On October 12, 2004, 1421209 Ontario Limited granted to us an option
to redeem 3,000,000 shares of our common stock, which are currently held in
escrow, for a total sum of US $25,000.00, payable in two installments. The
first installment of US$10,000 was paid by us on October 12, 2004, and the
balance of US$15,000.00 is due on or before February 1, 2005. In the event that
we do not pay the second installment of US$15,000.00, our option to
- 13 -
redeem the 3,000,000 shares of our common stock will terminate. In any event,
Betty-Ann Harland will retain her proxies to vote 6,000,000 shares of our common
stock, granted by 1421209 Ontario Limited.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires our directors, executive
officers and persons who own more than 10 percent of a registered class of our
equity securities, file with the SEC initial reports of ownership and
reports of changes in ownership of our equity securities. Officers, directors
and greater than 10 percent stockholders are required by SEC regulation to
furnish us with copies of all Section 16(a) forms they file. All such persons
have filed all required reports.
FORM 10-KSB ANNUAL REPORT AND QUARTERLY REPORTS ON FORM 10-QSB
Our Annual Report on Form 10-KSB for the year ended August 31, 2003, and
Financial Information from our Quarterly Reports for the Periods Ended November
30, 2003, February 29, 2004, as amended, and May 31, 2004 are incorporated
herein by reference.
COPIES OF ANNUAL AND QUARTERLY REPORTS
We will furnish a copy of our Annual Report on Form 10-KSB for the year
ended August 31, 2003 and a copy of our Quarterly Reports for the Periods Ended
November 30, 2003, February 29, 2004, as amended, and May 31, 2004 and any
exhibit referred to therein without charge to each person to whom this
information statement is delivered upon written or oral request by first class
mail or other equally prompt means within one business day of receipt of such
request. Any request should be directed to our corporate secretary at 30 Denver
Crescent, Suite 200, Toronto, Ontario, Canada M2J 1G8, telephone (416) 490-0254.
By Order of the Board of Directors,
/s/ Max Weissengruber
Max Weissengruber,
President
- 14 -
ATTACHMENT A
SPECIAL RESOLUTION APPROVING PLAN AND AGREEMENT OF MERGER AND CHANGE IN DOMICILE
WHEREAS, it is in the best interests of the Company that it merge with
and into International Development Corp., a Nevada corporation
("International Development Corp.") as set forth in that certain Plan and
Agreement of Merger by and between the Company and International
Development Corp, in the form contained in Attachment B (the "Plan of
------------
Merger") to the Company's information statement dated November 5, 2004, and
WHEREAS, pursuant to the Plan of Merger, among other things, (a) the
Company shall be merged with and into International Development Corp, to
exist and be governed by the laws of the State of Nevada, (b) International
Development Corp will be the surviving corporation, (c) the holders of
shares of the common stock, par value $0.001 per share, of the Company
shall be entitled to receive one share of the common stock, $0.001 par
value per share, of International Development Corp for every share of the
common stock of the Company held by the common stockholders of the Company;
and the currently issued one share of the common stock of International
Development Corp will be cancelled;
NOW, THEREFORE, IT IS RESOLVED, that the Directors of the Company be,
and they hereby are, authorized and directed to take whatever steps which
may be necessary and to implement the Plan of Merger and to effectuate the
merger and change of domicile approved herein.
ATTACHMENT B
PLAN OF MERGER
PLAN AND AGREEMENT OF MERGER BETWEEN
OZOLUTIONS INC. (A DELAWARE CORPORATION)
AND
INTERNATIONAL DEVELOPMENT CORP. (A NEVADA CORPORATION)
OZOLUTIONS INC., a Delaware corporation ("Ozolutions") and INTERNATIONAL
DEVELOPMENT CORP., a Nevada corporation ("International Development"), hereby
agree as follows:
1. Plan Adopted. A plan of merger merging Ozolutions with and into
-------------
International Development (this "Plan of Merger"), pursuant to the provisions of
Chapter 92A of the Nevada Revised Statutes (the "NRS"), Section 252 of the
Delaware General Corporation Law and Section 368(a)(1)(F) of the Internal
Revenue Code of 1986, as amended, is adopted as follows:
(a) Ozolutions shall be merged with and into International
Development, to exist and be governed by the laws of the State of Nevada.
(b) International Development shall be the Surviving Corporation (the
"Surviving Corporation").
(c) When this Plan of Merger shall become effective, the separate
existence of Ozolutions shall cease and the Surviving Corporation shall succeed,
without other transfer, to all the rights and properties of Ozolutions and shall
be subject to all the debts and liabilities of such corporation in the same
manner as if the Surviving Corporation had itself incurred them. All rights of
creditors and all liens upon the property of each constituent entity shall be
preserved unimpaired, limited in lien to the property affected by such liens
immediately prior to the merger (the "Merger").
(d) The Surviving Corporation will be responsible for the payment of
all fees and franchise taxes of the constituent entities payable to the State of
Nevada, if any.
(e) The Surviving Corporation will carry on business with the assets
of Ozolutions, as well as the assets of International Development.
(f) The Surviving Corporation will be responsible for the payment of
the fair value of shares, if any, required under Section 262 of the Delaware
General Corporation Law.
(g) The stockholders of Ozolutions will surrender all of their shares
in the manner hereinafter set forth.
(h) In exchange for the shares of Ozolutions surrendered by its
stockholders, the Surviving Corporation will issue and transfer to such
stockholders on the basis hereinafter set forth, shares of its common stock.
(i) The stockholders of International Development will keep their
shares of the Surviving Corporation.
2. Effective Date. The effective date of the Merger (the "Effective Date")
--------------
shall be the date of the filing of Articles of Merger for Ozolutions and
International Development in the States of Delaware and Nevada.
3. Submission to Stockholders. This Plan of Merger shall be submitted for
---------------------------
approval separately to the stockholders of Ozolutions and International
Development in the manner provided by the laws of the States of Delaware and
Nevada.
4. Manner of Exchange. On the Effective Date, the stockholders of
--------------------
Ozolutions shall surrender their stock certificates to Ozolutions in exchange
for shares of the Surviving Corporation to which they are entitled.
1
5. Basis of Exchange. The holders of shares of the common stock, $0.001 par
-----------------
value per share, of Ozolutions shall be entitled to receive, in exchange for all
the outstanding stock of Ozolutions, an amount of stock so that after the
issuance thereof, such holders of Ozolutions will hold all of the issued and
outstanding shares of the common stock of the Surviving Corporation, par value
$0.001 per share.
6. Shares of the Surviving Corporation Held by the Current Stockholders of
-----------------------------------------------------------------------
International Development. The presently outstanding shares of the common stock
- --------------------------
of International Development will be cancelled.
7. Directors and Officers.
------------------------
(a) The present Board of Directors of Ozolutions shall serve as the
Board of Directors of the Surviving Corporation until the next annual meeting or
until such time as their successors have been elected and qualified.
(b) If a vacancy shall exist on the Board of Directors of the
Surviving Corporation on the Effective Date, such vacancy may be filled by the
Board of Directors as provided in the Bylaws of the Surviving Corporation.
(c) All persons who, on the Effective Date, are executive or
administrative officers of Ozolutions shall be officers of the Surviving
Corporation until the Board of Directors of the Surviving Corporation shall
otherwise determine. The Board of Directors of the Surviving Corporation may
elect or appoint such additional officers as it may deem necessary or
appropriate.
8. Articles of Incorporation. The Articles of Incorporation of
---------------------------
International Development, existing on the Effective Date and reflecting the
change of the corporate name to International Development Corp. and other
provisions, a copy of which are attached hereto as Exhibit A and incorporated
---------
herein for all purposes, shall continue in full force as the Articles of
Incorporation of the Surviving Corporation until altered, amended, or repealed
as provided therein or as provided by law.
9. Bylaws. The Bylaws of International Development existing on the
------
Effective Date, a copy of which is attached hereto as Exhibit B and incorporated
---------
herein for all purposes, shall continue in full force as the Bylaws of the
Surviving Corporation until altered, amended, or repealed as provided therein or
as provided by law.
(a) Copies of the Plan of Merger. A copy of this Plan of Merger is on
----------------------------
file at 30 Denver Crescent, Suite 200, Toronto, Ontario Canada M2J 1G8, the
principal offices of Ozolutions, and 30 Denver Crescent, Suite 200, Toronto,
Ontario Canada M2J 1G8, the principal offices of International Development. A
copy of this Plan of Merger will be furnished to any stockholder of Ozolutions
or International Development, on written request and without cost.
10. Contractual Consents Needed. The parties to this Plan of Merger shall
----------------------------
have obtained, at or prior to the Effective Date, all consents required for the
consummation of the transactions contemplated by this Plan of Merger from any
party to any contract, agreement, instrument, lease, license, arrangement, or
understanding to which any of them is a party, or to which any of their
respective businesses, properties, or assets are subject.
11. Notices. All notices, requests, demands, and other communications
-------
hereunder shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage prepaid, or
by telecopy or e-mail, if to Ozolutions, addressed to Max Weissengruber at 30
Denver Crescent, Suite 200, Toronto, Ontario Canada M2J 1G8 and e-mail
maxweissengruber@hotmail.com; and if to International Development, addressed to
Max Weissengruber at 30 Denver Crescent, Suite 200, Toronto, Ontario Canada M2J
1G8 and e-mail maxweissengruber@hotmail.com. Any party hereto may change its
address upon 10 days' written notice to any other party hereto.
12. Legal Construction. In case any one or more of the provisions contained
------------------
in this Plan of Merger shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or
2
unenforceability shall not affect any other provisions hereof, and this Plan of
Merger shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
13. Benefit. All the terms and provisions of this Plan of Merger shall be
-------
binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their successors and permitted assigns.
14. Law Governing. This Plan of Merger shall be construed and governed by
--------------
the laws of the State of Nevada, and all obligations hereunder shall be deemed
performable in Nevada.
15. Perfection of Title. The parties hereto shall do all other acts and
---------------------
things that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Plan of Merger, and to carry out the intent
of this Plan of Merger.
16. Cumulative Rights. The rights and remedies of any party under this Plan
-----------------
of Merger and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
17. Waiver. No course of dealing on the part of any party hereto or its
------
agents, nor any failure or delay by any such party with respect to exercising
any right, power or privilege of such party under this Plan of Merger or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
18. Construction. Whenever used herein, the singular number shall include
------------
the plural, the plural number shall include the singular, and the masculine
gender shall include the feminine.
19. Multiple Counterparts. This Plan of Merger may be executed in one or
----------------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Plan of Merger on
October 25, 2004.
OZOLUTIONS INC.
By
--------------------------------
Max Weissengruber, President
INTERNATIONAL DEVELOPMENT CORP.
By
--------------------------------
Max Weissengruber, President
Attachments:
- -----------
Exhibit A - Articles of Incorporation of International Development Corp.
Exhibit B - Bylaws of International Development Corp.
3
EXHIBIT A
ARTICLES OF INCORPORATION OF
INTERNATIONAL DEVELOPMENT CORP.,
A NEVADA CORPORATION
EXHIBIT B
BYLAWS OF
INTERNATIONAL DEVELOPMENT CORP.,
A NEVADA CORPORATION
ATTACHMENT C
CERTIFICATE OF DESIGNATION ESTABLISHING SERIES OF PREFERRED STOCK
[GRAPHIC OMITED]
DEAN HELLER
SECRETARY OF STATE
204 NORTH CARSON STREET, SUITE 1
CARSON CITY, NEVADA 89701-4299
(775) 684 5708
WEBSITE: SECRETARYOFSTATE.BIZ
- -------------------------------------------------
Certificate of Designation
(PURSUANT TO NRS 78.1955)
- -------------------------------------------------
Important: Read attached instructions before completing form.
ABOVE SPACE IS FOR OFFICE USE ONLY
CERTIFICATE OF DESIGNATION
--------------------------
FOR NEVADA PROFIT CORPORATIONS
------------------------------
(PURSUANT TO NRS 78.1955)
1. Name of corporation:
- --------------------------------------------------------------------------------
INTERNATIONAL DEVELOPMENT CORP.
- --------------------------------------------------------------------------------
2. By resolution of the board of directors pursuant to a provision in the
articles of incorporation, this certificate establishes the following
regarding the voting powers, designations, preferences, limitations,
restrictions and relative rights of the following class or series of stock:
- --------------------------------------------------------------------------------
Series A Preferred Stock to consist of 1,000,000 shares:
1. Dividends. Except as provided herein, the holders of outstanding shares of
the Series A Preferred Stock shall be entitled to receive cash, stock, or other
property, as dividends when, as, and if declared by the Board of Directors of
the Company. If shares of the Series A Preferred Stock or the common stock of
the Company, par value $0.001 per share (the "Common Stock") are to be issued as
a dividend, any such shares shall be issued at Market Value. "Market Value" for
the Common Stock for the purposes of this Certificate of Designation shall mean
the average of the bid and ask prices for the Common Stock for the five business
days preceding the declaration of a dividend by the Board of Directors. "Market
Value" with respect to any shares of the Series A Preferred Stock shall be as
determined by the Board of Directors, whose decision shall be final and binding
on all parties. (CONTINUATION ATTACHED)
- --------------------------------------------------------------------------------
---------------------------------------
3. Effective date of filing (optional):
---------------------------------------
(must not be later than 90 days after
the certificate is filed)
4. Officer Signature:
--------------------------------------------------
FILING FEE: $175.00
IMPORTANT: Failure to include any of the above information and submit the
proper fees may cause this filing to be rejected.
SUBMIT IN DUPLICATE
This form must be accompanied by appropriate fees. See attached fee
schedule.
Nevada Secretary of State AM 78.1955 Designation 2003
Revised on: 11/03/03
INTERNATIONAL DEVELOPMENT CORP
CONTINUATION FOR THE CERTIFICATE OF DESIGNATION
FOR THE
SERIES A PREFERRED STOCK
2. Liquidation Rights. Upon the dissolution, liquidation or winding up of
-------------------
the Company, whether voluntary or involuntary, the holders of the then
outstanding shares of Series A Preferred Stock shall be entitled to receive out
of the assets of the Company the sum of $0.001 per share (the "Liquidation
Rate") before any payment or distribution shall be made on the Common Stock, or
any other class of capital stock of the Company ranking junior to the Series A
Preferred Stock.
(a) The sale, conveyance, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all the
property and assets of the Company shall be deemed a dissolution, liquidation or
winding up of the Company for purposes of this Paragraph 3, but the merger,
consolidation, or other combination of the Company into or with any other
corporation, or the merger, consolidation, or other combination of any other
corporation into or with the Company, shall not be deemed a dissolution,
liquidation or winding up,
voluntary or involuntary, for purposes of this Paragraph 3. As use herein, the
"merger, consolidation, or other combination" shall include, without limitation,
a forward or reverse triangular merger, or stock exchange of the Company and any
of its subsidiaries with any other corporation.
(b) After the payment to the holders of shares of the Series A
Preferred Stock of the full preferential amounts fixed by this Paragraph 3 for
shares of the Series A Preferred Stock, the holders of the Series A Preferred
Stock as such shall have no right or claim to any of the remaining assets of the
Company.
(c) In the event the assets of the Company available for distribution
to the holders of the Series A Preferred Stock upon dissolution, liquidation or
winding up of the Company shall be insufficient to pay in full all amounts to
which such holders are entitled pursuant to this Paragraph 3, no distribution
shall be made on account of any shares of a class or series of capital stock of
the Company ranking on a parity with the shares of the Series A Preferred Stock,
if any, upon such dissolution, liquidation or winding up unless proportionate
distributive amounts shall be paid on account of the shares of the Series A
Preferred Stock, ratably, in proportion to the full distributive amounts for
which holders of all such parity shares are respectively entitled upon such
dissolution, liquidation or winding up.
3. Conversion of Series A Preferred Stock. At any time, the holder of
--------------------------------------
shares of the Series A Preferred Stock shall have the right, at such holder's
option, to convert any number of shares of the Series A Preferred Stock into
shares of the Common Stock. Such right to convert shall commence as of the date
the shares of such Series A Preferred Stock are issued to such holder (the
"Issue Date") and shall continue thereafter for a period of 10 years, such
period ending on the 10th anniversary of the Issue Date. In the event that the
holder of the Series A Preferred Stock elects to convert such shares into Common
Stock, the holder shall have 60 days from the date of such notice in which to
tender his shares of Series A Preferred Stock to the Company. Any such
conversion shall be upon the other following terms and conditions:
(a) Conversion Right. Subject to adjustment as provided herein, each
-----------------
share of the Series A Preferred Stock shall be convertible into 200 fully paid
and nonassessable shares of the Common Stock (the "Conversion Rate").
(b) Adjustment of Conversion Rate for Dilution and Other Events. In
-------------------------------------------------------------
order to prevent dilution of the rights granted to the holders of shares of the
Series A Preferred Stock, the Conversion Rate will be subject to adjustment from
time to time as follows:
(i) Adjustment of Conversion Rate upon Subdivision or Combination
-------------------------------------------------------------
of the Common Stock. If the Company at any time subdivides the Common Stock (by
- --------------------
any stock split, stock dividend, recapitalization or otherwise) into a greater
number of shares, the Conversion Rate in effect immediately prior to such
subdivision will be proportionately reduced. If the Company at any time combines
the Common Stock (by combination, reverse stock split or otherwise) into a
smaller number of shares, the Conversion Rate in effect immediately prior to
such combination will be proportionately increased.
(ii) Reorganization, Reclassification, Consolidation, Merger, or
-----------------------------------------------------------
Sale. Any recapitalization, reorganization, reclassification, consolidation,
- ----
merger, or other similar transaction which is effected in such a way that
holders of the Common Stock are entitled to receive (either directly or upon
subsequent liquidation) stock, securities or assets with respect to or in
exchange for the Common Stock is referred to herein as an "Organic Change."
Prior to the consummation of any Organic Change, the Company will make
appropriate provision, in form and substance satisfactory to the holders of a
majority of the outstanding shares of the Series A Preferred Stock, to ensure
that each of the holders of shares of the Series A Preferred Stock will
thereafter have the right to acquire and receive in lieu of or in addition to,
as the case may be, the shares of the Common Stock immediately theretofore
acquirable and receivable upon the conversion of such holder's Series A
Preferred Stock, such shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for the number of shares of the Common
Stock immediately theretofore acquirable and receivable upon the conversion of
such holder's shares of the Series A Preferred Stock had such Organic Change not
taken place. In any such case, the Company will make appropriate provision, in
form and substance satisfactory to the holders of a majority of the outstanding
shares of the Series A Preferred Stock, with respect to such holders' rights and
interests to ensure that the provisions of this paragraph and paragraph 4(c)
below will thereafter be applicable to the Series A Preferred
Stock. The Company will not effect any such consolidation or merger, unless
prior to the consummation thereof the successor entity resulting from such
consolidation or merger, if other than the Company, assumes, by written
instrument, in form and substance satisfactory to the holders of a majority of
the outstanding shares of the Series A Preferred Stock, the obligation to
deliver to each holder of shares of the Series A Preferred Stock such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
that such holder may be entitled to acquire.
(iii) Notices. Immediately upon any adjustment of the Conversion
-------
Rate, the Company will give written notice of such adjustment to each holder of
shares of the Series A Preferred Stock, setting forth in reasonable detail and
certifying the calculation of such adjustment. The Company will give written
notice to each holder of shares of the Series A Preferred Stock at least 20 days
prior to the date on which the Company closes its books or takes a record with
respect to any dividend or distribution upon the Common Stock, or with respect
to any pro rata subscription offer to holders of the Common Stock. The Company
will also give written notice to each holder of shares of the Series A Preferred
Stock at least 20 days prior to the date on which any Organic Change,
dissolution or liquidation will take place.
(c) Purchase Rights. If at any time the Company grants, issues or
----------------
sells any options, convertible securities or rights to purchase stock, warrants,
securities or other property pro rata to the record holders of the Common Stock
(the "Purchase Rights"), then each holder of shares of the Series A Preferred
Stock will be entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which such holder could have acquired if
such holder had held the number of shares of the Common Stock acquirable upon
complete conversion of the holder's shares of the Series A Preferred Stock
immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of
which the record holders of the Common Stock are to be determined for the grant,
issue or sale of such Purchase Rights.
(d) Mechanics of Conversion. To convert shares of the Series A
-------------------------
Preferred Stock into full shares of the Common Stock on any date (the
"Conversion Date"), the holder thereof shall (i) deliver or transmit by
facsimile to the Company, for receipt on or prior to 11:59 p.m., Eastern Time,
on the Conversion Date, a copy of a fully executed notice of conversion in the
form attached hereto as Attachment A (the "Conversion Notice"), and (ii)
-------------
surrender to a common carrier for delivery to the Company as soon as practicable
following such date, the certificates (each a "Preferred Stock Certificate")
representing the shares of the Series A Preferred Stock being converted, or an
indemnification undertaking with respect to such shares in the case of the loss,
theft or destruction thereof, and the originally executed Conversion Notice.
Upon receipt by the Company of a facsimile copy of a Conversion Notice, the
Company shall immediately send, via facsimile, a confirmation of receipt of such
Conversion Notice to such holder. Within five business days of the Company's
receipt of the originally executed Conversion Notice and the holder's Preferred
Stock Certificate(s), the Company shall issue and surrender to a common carrier
for overnight delivery to the address as specified in the Conversion Notice, a
certificate, registered in the name of the holder or its designee, for the
number of shares of the Common Stock to which the holder is entitled.
(e) Record Holder. The person or persons entitled to receive shares of
-------------
the Common Stock issuable upon conversion of shares of the Series A Preferred
Stock shall be treated for all purposes as the record holder or holders of such
shares of the Common Stock on the Conversion Date.
(f) Fractional Shares. The Company shall not be required to issue any
-----------------
fraction of a share of the Common Stock upon any conversion. All shares of the
Common Stock, including fractions thereof, issuable upon conversion of more than
one share of the Series A Preferred Stock shall be aggregated for purposes of
determining whether the conversion would result in the issuance of a fraction of
a share of the Common Stock. If, after such aggregation, the issuance would
result in the issuance of a fraction of it share of the Common Stock, the
Company shall round such fraction of a share of the Common Stock up or down to
the nearest whole share.
(g) Reissuance of Certificates. In the event of a conversion of less
---------------------------
than all of the shares of the Series A Preferred Stock represented by a
particular Preferred Stock Certificate, the Company shall promptly cause to be
issued and delivered to the holder of such Series A Preferred Stock a new Series
A Preferred Stock Certificate representing the remaining shares of the Series A
Preferred Stock which were not corrected.
4. Reservation of Shares. The Company shall, so long as any of the shares
----------------------
of the Series A Preferred Stock are outstanding, reserve and keep available out
of its authorized and unissued shares of the Common Stock, solely for the
purpose of effecting the conversion of the shares of the Series A Preferred
Stock, the number of shares of the Common Stock as shall from time to time be
sufficient to affect the conversion of all of the outstanding shares of the
Series A Preferred Stock.
5. Preferred Status. The rights of the shares of the Common Stock shall be
----------------
subject to the preferences and relative rights of the shares of the Series A
Preferred Stock. Without the prior written consent of the holders of not less
than two-thirds (2/3) of the outstanding shares of the Series A Preferred Stock,
the Company shall not hereafter authorize or issue additional or other capital
stock that is of senior or equal rank to the shares of the Series A Preferred
Stock in respect of the preferences as to distributions and payments upon the
liquidation, dissolution and winding up of the Company described in Paragraph 3
above.
6. Restriction on Dividends. If any shares of the Series A Preferred Stock
------------------------
are outstanding, the Company shall not, without the prior written consent of the
holders of not less than two-thirds (2/3) of the then outstanding shares of the
Series A Preferred Stock, directly or indirectly declare, pay or make any
dividends or other distributions upon any of the Common Stock. Notwithstanding
the foregoing, this paragraph shall not prohibit the Company from declaring and
paying a dividend in cash with respect to the shares of the Common Stock so long
as the Company simultaneously pays each holder of shares of the Series A
Preferred Stock an amount in cash equal to the amount such holder would have
received had all of such holder's shares of the Series A Preferred Stock been
converted to shares of the Common Stock on the business day prior to the record
date for any such dividend.
7. Vote to Change the Terms of the Series A Preferred Stock. Without the
---------------------------------------------------------
prior written consent of the holders of not less than two-thirds (2/3) of the
outstanding shares of the Series A Preferred Stock, the Company shall not amend,
alter, change or repeal any of the powers, designations, preferences and rights
of the Series A Preferred Stock.
8. Lost or Stolen Certificates. Upon receipt by the Company of evidence
-----------------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Preferred Stock Certificates representing shares of the Series A Preferred
Stock, and, in the case of loss, theft or destruction, of any indemnification
undertaking or bond, in the Company's discretion, by the holder to the Company
and, in the case of mutilation, upon surrender and cancellation of the Preferred
Stock Certificate(s), the Company shall execute and deliver new Series A
Preferred Stock Certificate(s) of like tenor and date; provided, however, the
Company shall not be obligated to re-issue Series A Preferred Stock Certificates
if the holder thereof contemporaneously requests the Company to convert such
shares of the Series A Preferred Stock into the Common Stock.
9. Voting. On all matters submitted to a vote of the holders of the Common
------
Stock, including, without limitation, the election of directors, a holder of
shares of the Series A Preferred Stock shall be entitled to the number of votes
on such matters equal to the number of shares of the Series A Preferred Stock
held by such holder multiplied by the number of shares of the Common Stock each
such share of the Series A Preferred Stock shall then be convertible into
pursuant to the terms Paragraph 4 hereof.
ATTACHMENT A
INTERNATIONAL DEVELOPMENT CORP.
CONVERSION NOTICE
In accordance with and pursuant to the provisions of the Certificate of
Designation Establishing Series A Preferred Stock of International Development
Corp., the undersigned hereby elects to convert the number of shares of Series A
Preferred Stock, par value $0.001 per share, of International Development Corp.
(the "Company") indicated below into shares of the Common Stock, par value
$0.001 per share (the "Common Stock"), of the Company, by tendering the stock
certificate(s) representing the share(s) of the Series A Preferred Stock
hereinafter described as of the date specified below.
The undersigned acknowledges that the securities issuable to the undersigned
upon conversion of shares of the Series A Preferred Stock may not be sold,
pledged, hypothecated or otherwise transferred unless such securities are
registered under the Securities Act, and any other applicable securities law, or
the Company has received an opinion of counsel satisfactory to it that
registration is not required. A legend in substantially the following form will
be placed on any certificates or other documents evidencing the securities to be
issued upon any conversion of the shares of the Series A Preferred Stock:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT OR DOCUMENT
HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
THE SECURITIES LAW OF ANY STATE. WITHOUT SUCH REGISTRATION,
SUCH SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED EXCEPT UPON DELIVERY TO THE COMPANY OF
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER OR THE
SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY BE
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY SUCH
TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES ACT OF
1933, AS AMENDED, THE SECURITIES LAW OF ANY STATE, OR ANY
RULE OR REGULATION PROMULGATED THEREUNDER.
Date of Conversion:______________________
Number of shares of the Series A Preferred Stock to be converted:
_________________________________________
Stock certificate no(s). of the shares of the Series A Preferred Stock to be
converted:
__________________________
Conversion Rate:_________________________
Number of shares of the Common Stock to be issued:
_________________________________________
Name in which shares of the Common Stock are to be issued:
____________________________________
____________________________________
Signature
____________________________________
Printed Name and Address
ATTACHMENT D
SECTION 262 OF THE DELAWARE STATUTES
1
SEC. 262. APPRAISAL RIGHTS.
(a) Any stockholder of a corporation of this State who holds shares of
stock on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares through
the effective date of the merger or consolidation, who has otherwise complied
with subsection (d) of this section and who has neither voted in favor of the
merger or consolidation nor consented thereto in writing pursuant to Sec. 228 of
this title shall be entitled to an appraisal by the Court of Chancery of the
fair value of the stockholder's shares of stock under the circumstances
described in subsections (b) and (c) of this section. As used in this section,
the word "stockholder" means a holder of record of stock in a stock corporation
and also a member of record of a nonstock corporation; the words "stock" and
"share" mean and include what is ordinarily meant by those words and also
membership or membership interest of a member of a nonstock corporation; and the
words "depository receipt" mean a receipt or other instrument issued by a
depository representing an interest in one or more shares, or fractions thereof,
solely of stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to Sec. 251 (other than a merger effected pursuant to Sec.
251(g) of this title), Sec. 252, Sec. 254, Sec. 257, Sec. 258, Sec. 263 or Sec.
264 of this title:
(1) Provided, however, that no appraisal rights under this section
shall be available for the shares of any class or series of stock, which stock,
or depository receipts in respect thereof, at the record date fixed to determine
the stockholders entitled to receive notice of and to vote at the meeting of
stockholders to act upon the agreement of merger or consolidation, were either
(i) listed on a national securities exchange or designated as a national market
system security on an interdealer quotation system by the National Association
of Securities Dealers, Inc. or (ii) held of record by more than 2,000 holders;
and further provided that no appraisal rights shall be available for any shares
of stock of the constituent corporation surviving a merger if the merger did not
require for its approval the vote of the stockholders of the surviving
corporation as provided in subsection (f) of Sec. 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series of
stock of a constituent corporation if the holders thereof are required by the
terms of an agreement of merger or consolidation pursuant to Sec.Sec. 251, 252,
254, 257, 258, 263 and 264 of this title to accept for such stock anything
except:
a. Shares of stock of the corporation surviving or resulting from
such merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository
receipts in respect thereof, which shares of stock (or depository receipts in
respect thereof) or depository receipts at the effective date of the merger or
consolidation will be either listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or held of record
by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of this paragraph;
or
d. Any combination of the shares of stock, depository receipts
and cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under Sec. 253 of this title is not owned by the
parent corporation immediately prior to the merger, appraisal rights shall be
available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights
are provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting, shall
notify each of its stockholders who was such on the record date for such meeting
with respect to shares for which appraisal rights are available pursuant to
subsection (b) or (c) hereof that appraisal rights are available for any or all
of the shares of the constituent corporations, and shall include in such notice
a copy of this section. Each stockholder electing to demand the appraisal of
such stockholder's shares shall deliver to the corporation, before the taking of
the vote on the merger or consolidation, a written demand for appraisal of such
stockholder's shares. Such demand will be sufficient if it reasonably informs
the corporation of the identity of the stockholder and that the stockholder
intends thereby to demand the appraisal of such stockholder's shares. A proxy or
vote against the merger or consolidation shall not constitute such a demand. A
stockholder electing to take such action must do so by a separate written demand
as herein provided. Within 10 days after the effective date of such merger or
consolidation, the surviving or resulting corporation shall notify each
stockholder of each constituent corporation who has complied with this
subsection and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has become effective;
or
(2) If the merger or consolidation was approved pursuant to Sec. 228
or Sec. 253 of this title, then either a constituent corporation before the
effective date of the merger or consolidation or the surviving or resulting
corporation within 10 days thereafter shall notify each of the holders of any
class or series of stock of such constituent corporation who are entitled to
appraisal rights of the approval of the merger or consolidation and that
appraisal rights are available for any or all shares of such class or series of
stock of such constituent corporation, and shall include in such notice a copy
of this section. Such notice may, and, if given on or after the effective date
of the merger or consolidation, shall, also notify such stockholders of the
effective date of the merger or consolidation. Any stockholder entitled to
appraisal rights may, within 20 days after the date of mailing of such notice,
demand in writing from the surviving or resulting corporation the appraisal of
such holder's shares. Such demand will be sufficient if it reasonably informs
the corporation of the identity of the stockholder and that the stockholder
intends thereby to demand the appraisal of such holder's shares. If such notice
did not notify stockholders of the effective date of the merger or
consolidation, either (i) each such constituent corporation shall send a second
notice before the effective date of the merger or consolidation notifying each
of the holders of any class or series of stock of such constituent corporation
that are entitled to appraisal rights of the effective date of the merger or
consolidation or (ii) the surviving or resulting corporation shall send such a
second notice to all such holders on or within 10 days after such effective
date; provided, however, that if such second notice is sent more than 20 days
following the sending of the first notice, such second notice need only be sent
to each stockholder who is entitled to appraisal rights and who has demanded
appraisal of such holder's shares in accordance with this subsection. An
affidavit of the secretary or assistant secretary or of the transfer agent of
the corporation that is required to give either notice that such notice has been
given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. For purposes of determining the stockholders entitled to receive
either notice, each constituent corporation may fix, in advance, a record date
that shall be not more than 10 days prior to the date the notice is given,
provided, that if the notice is given on or after the effective date of the
merger or consolidation, the record date shall be such effective date. If no
record date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the day on
which the notice is given.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who has
complied with subsections (a) and (d) hereof and who is otherwise entitled to
appraisal rights, may file a petition in the Court of Chancery demanding a
determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw such stockholder's demand for appraisal and to accept the terms offered
upon the merger or consolidation. Within 120 days after the effective date of
the merger or consolidation, any stockholder who has complied with the
requirements of subsections (a) and (d) hereof, upon written request, shall be
entitled to receive from the corporation surviving the merger or resulting from
the consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which demands
for appraisal have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the stockholder within 10 days
after such stockholder's written request for
such a statement is received by the surviving or resulting corporation or within
10 days after expiration of the period for delivery of demands for appraisal
under subsection (d) hereof, whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by 1 or more publications at
least 1 week before the day of the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such publication as
the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the
surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had
to pay to borrow money during the pendency of the proceeding. Upon application
by the surviving or resulting corporation or by any stockholder entitled to
participate in the appraisal proceeding, the Court may, in its discretion,
permit discovery or other pretrial proceedings and may proceed to trial upon the
appraisal prior to the final determination of the stockholder entitled to an
appraisal. Any stockholder whose name appears on the list filed by the surviving
or resulting corporation pursuant to subsection (f) of this section and who has
submitted such stockholder's certificates of stock to the Register in Chancery,
if such is required, may participate fully in all proceedings until it is
finally determined that such stockholder is not entitled to appraisal rights
under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded appraisal rights as provided in subsection (d) of
this section shall be entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock (except dividends or
other distributions payable to stockholders of record at a date which is prior
to the effective date of the merger or consolidation); provided, however, that
if no petition for an appraisal shall be filed within the time provided in
subsection (e) of this section, or if such stockholder shall deliver to the
surviving or resulting corporation a written withdrawal of such stockholder's
demand for an appraisal and an acceptance of the merger or consolidation, either
within 60 days after the effective date of the merger or consolidation as
provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court
of Chancery shall be dismissed as to any stockholder without the approval of the
Court, and such approval may be conditioned upon such terms as the Court deems
just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation. (8 Del. C. 1953, Sec.
262; 56 Del. Laws, c. 50; 56 Del. Laws, c. 186, Sec. 24; 57 Del. Laws, c. 148,
Sec.Sec. 27-29; 59 Del. Laws, c. 106, Sec. 12; 60 Del. Laws, c. 371, Sec.Sec.
3-12; 63 Del. Laws, c. 25, Sec. 14; 63 Del. Laws, c. 152, Sec.Sec. 1, 2; 64 Del.
Laws, c. 112, Sec.Sec. 46-54; 66 Del. Laws, c. 136, Sec.Sec. 30-32; 66 Del.
Laws, c. 352, Sec. 9; 67 Del. Laws, c. 376, Sec.Sec. 19, 20; 68 Del. Laws, c.
337, Sec.Sec. 3, 4; 69 Del. Laws, c. 61, Sec. 10; 69 Del. Laws, c. 262, Sec.Sec.
1-9; 70 Del. Laws, c. 79, Sec. 16; 70 Del. Laws, c. 186, Sec. 1; 70 Del. Laws,
c. 299, Sec.Sec. 2, 3; 70 Del. Laws, c. 349, Sec. 22; 71 Del. Laws, c. 120, Sec.
15; 71 Del. Laws, c. 339, Sec.Sec. 49-52; 73 Del. Laws, c. 82, Sec. 21.)