SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Delta Capital Technologies, Inc.
(Exact name of registrant as specified in its charter)
DELAWARE 98-0187705
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Suite 440-375 Water Street , Vancouver, B.C., Canada V6B 5C6
(Address of principal executive offices)
The 2003 Benefit Plan of Delta Capital Technologies, Inc.
(Full title of the plan)
The Company Corporation
2711 Centerville Road, Suite 400, Wilmington, Delaware 19800
(Name, address, including zip code, of agent for service)
Telephone number, including area code, of agent for service: (800) 818-0204
-------------
CALCULATION OF REGISTRATION FEE
==================================== ============== ======================== ========================= =================
Title of Securities to be Amounts to Proposed Maximum Proposed Maximum Amount of
Registered be Registered Offering Price Per Aggregate Offering Price Registration Fee
Share(1)
- ------------------------------------ -------------- ------------------------ ------------------------- -----------------
Common Stock 2,500,000 $0.045 $112,500 $28.13
==================================== ============== ======================== ========================= =================
(1) Bona Fide estimate of maximum offering price solely for calculating the
registration fee pursuant to Rule 457(h) of the Securities Act of 1933 based on
the average bid and asked price of the registrant's common stock as of August
22, 2003 a date within five business days prior to the date of filing of this
registration statement.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Plan described herein.
1
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The 2003 Benefit Plan of Delta Capital Technologies, Inc.
Cross-Reference Sheet Pursuant to Rule 404(a)
Cross-reference between items of Part I of Form S-8 and the Section 10(a)
prospectus that will be delivered to each employee, consultant, or director who
participates in the 2003 Benefit Plan of Delta Capital Technologies, Inc.
Registration Statement Item Numbers and Headings Prospectus Heading
1. 2003 Benefit Plan Information Section 10(a) Prospectus
2. Registrant Information and Section 10(a) Prospectus
Employee Plan Annual Information
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Delta Capital Technologies, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") are hereby incorporated by reference:
1. The Company's Annual Report on Form 10-KSB/A for the fiscal year ended
December 31, 2002.
2. All reports filed by the Company with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year ended December 31, 2002.
Prior to the filing, if any, of a post-effective amendment that indicates that
all securities covered by this Registration Statement have been sold or that
de-registers all such securities then remaining unsold, all reports and other
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14, or 15(d) of the Exchange Act shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents.
Item 4. Description of Securities
The common stock of the Company being registered pursuant to this registration
statement is part of a class of securities registered under Section 12 of the
Exchange Act. A description of such securities is contained in the Company's
Form 10-SB12G/A filed with the Commission on January 14, 2000, and any amendment
or report filed for the purpose of updating such description. Said description
is incorporated herein by reference. (See "Item 3. Incorporation of Documents by
Reference.")
2
Item 5. Interests of Named Experts and Counsel
No expert is named as preparing or certifying all or part of the registration
statement to which this prospectus pertains, and no counsel for the Company who
is named in this prospectus as having given an opinion on the validity of the
securities being offered hereby was hired on a contingent basis or has or is to
receive, in connection with this offering, a substantial interest, direct or
indirect, in the Company.
Item 6. Indemnification of Directors and Officers
The Delaware Corporation Law ("DCL") permits a Delaware Corporation to include
in its charter a provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for
breaches of fiduciary duty, including conduct that could be characterized as
negligence or gross negligence. However, the DCL provides that the charter can
not eliminate or limit liability for (a) breaches of the director's duty of
loyalty, (b) acts or omissions not in good faith or involving intentional
misconduct or knowing violation of the law, (c) an unlawful distribution, or (d)
the receipt of improper personal benefits. The DCL further provides that no such
provision will eliminate or limit the liability of a director for any act or
omission occurring prior to the date when such provision becomes effective. Our
current charter includes a provision eliminating director liability for monetary
damages for breaches of fiduciary duty to the maximum extent permitted by the
DCL.
At present the Company has not entered into individual indemnity agreements with
its officers or directors. The Company's By-Laws and Certificate of
Incorporation, however, provide a blanket indemnification that the Company shall
indemnify, to the fullest extent under Delaware law, its directors and officers
against certain liabilities incurred with respect to their service in such
capacities. In addition, the Certificate of Incorporation provides that the
personal liability of directors and officers to the Company and its stockholders
for monetary damages will be limited.
Item 7. Exemption from Registration Claimed
No restricted securities are being re-offered or resold pursuant to this
registration statement.
Item 8. Exhibits.
The exhibits attached to this Registration Statement are listed in the Exhibit
Index, which is found on page 5.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
(2) To treat, for the purpose of determining any liability under the
Securities Act of 1933 (the "Securities Act"),each such post-effective
amendment as a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
3
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, on August
22, 2003.
Delta Capital Technologies, Inc.
By: /s/ Martin Tutschek
President, Chief Financial Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Martin Tutschek with power of substitution, as his
attorney-in-fact for him, in all capacities, to sign any amendments to this
registration statement and to file the same, with exhibits thereto and other
documents in connection therewith, with the Commission, hereby ratifying and
confirming all that said attorney-in-fact or his substitutes may do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement
has been signed by the following persons in the capacities and on the date
indicated.
Signature Title Date
/s/ Martin Tutschek Director August 22, 2003
- -------------------
Martin Tutschek
/s/ Ken Maude Director August 22, 2003
-------------
Ken Maude
4
INDEX TO EXHIBITS
Commission Ref. No. Description of Exhibit Page
Exhibits
A 4(i) 2003 Stock Benefit Plan of the Company 6
B 4(ii) Section 10(a) Prospectus 9
C 5, 23(b) Opinion and consent of Counsel with respect 13
to the legality of the issuance of securities being issued
D 23(a) Consent of Accountant 16
5
EXHIBIT 4(i)
THE 2003 BENEFIT PLAN
OF
DELTA CAPITAL TECHNOLOGIES, INC.
Delta Capital Technologies, Inc., a Delaware corporation (the "Company"), hereby
adopts The 2003 Benefit Plan of Delta Capital Technologies, Inc. (the "Plan")
this 20th day of August, 2003. Under the Plan, the Company may issue stock, or
grant options to acquire the Company's common stock, par value $0.001 (the
"Stock"), from time to time to employees of the Company or its subsidiaries, all
on the terms and conditions set forth herein ("Benefits"). In addition, at the
discretion of the Board of Directors, Benefits may from time to time be granted
under this Plan to other individuals, including consultants or advisors, who
contribute to the success of the Company or its subsidiaries but are not
employees of the Company or its subsidiaries, provided that bona fide services
shall be rendered by consultants and advisors and such services must not be in
connection with the offer or sale of securities in a capital-raising
transaction. No stock may be issued, or option granted under the benefit plan to
consultants, advisors, or other persons who directly or indirectly promote or
maintain a market for the Company's securities.
1. Purpose of the Plan. The Plan is intended to aid the Company in maintaining
and developing a management team, attracting qualified officers and employees
capable of assuring the future success of the Company, and rewarding those
individuals who have contributed to the success of the Company. The Company has
designed this Plan to aid it in retaining the services of executives and
employees and in attracting new personnel when needed for future operations and
growth and to provide such personnel with an incentive to remain employees of
the Company, to use their best efforts to promote the success of the Company's
business, and to provide them with an opportunity to obtain or increase a
proprietary interest in the Company. It is also designed to permit the Company
to reward those individuals who are not employees of the Company but who
management perceives to have contributed to the success of the Company or who
are important to the continued business and operations of the Company. The above
goals will be achieved through the granting of Benefits.
2. Administration of this Plan. Administration of this Plan shall be determined
by the Company's Board of Directors (the "Board"). Subject to compliance with
applicable provisions of the governing law, the Board may delegate
administration of this Plan or specific administrative duties with respect to
this Plan on such terms and to such committees of the Board as it deems proper
(hereinafter the Board or its authorized committee shall be referred to as "Plan
Administrators"). The interpretation and construction of the terms of this Plan
by the Plan Administrators thereof shall be final and binding on all
participants in this Plan absent a showing of demonstrable error. No member of
the Plan Administrators shall be liable for any action taken or determination
made in good faith with respect to this Plan. Any Benefits approved by a
majority vote of those Plan Administrators attending a duly and properly held
meeting shall be valid. Any Benefits approved by the Plan Administrators shall
be approved as specified by the Board at the time of delegation.
3. Shares of Stock Subject to this Plan. A total of two million five hundred
thousand (2,500,000) shares of Stock may be subject to, or issued pursuant to
Benefits granted under this Plan. If any right to acquire Stock granted under
this Plan is exercised by the delivery of shares of Stock or the relinquishment
of rights to shares of Stock, only the net shares of Stock issued (the shares of
stock issued less the shares of Stock surrendered) shall count against the total
number of shares reserved for issuance under the terms of this Plan.
6
4. Reservation of Stock on Granting of Option. At the time any Option is granted
under the terms of this Plan, the Company will reserve for issuance the number
of shares of Stock subject to such Option until it is exercised or expires. The
Company may reserve either authorized but unissued shares or issued shares
reacquired by the Company.
5. Eligibility. The Plan Administrators may grant Benefits to employees,
officers, and directors of the Company and its subsidiaries, as may be existing
from time to time, and to other individuals who are not employees of the Company
or its subsidiaries, including consultants and advisors, provided that such
consultants and advisors render bona fide services to the Company or its
subsidiaries and such services are not rendered in connection with the offer or
sale of securities in a capital-raising transaction. In any case, the Plan
Administrators shall determine, based on the foregoing limitations and the
Company's best interests, which employees, officers, directors, consultants and
advisors are eligible to participate in this Plan. Benefits shall be in the
amounts, and shall have the rights and be subject to the restrictions, as may be
determined by the Plan Administrators, all as may be within the provisions of
this Plan.
6. Term of Options issued as Benefits and Certain Limitations on Right to Exercise.
a. Each Option issued as a benefit hereunder ("Option") shall have its term
established by the Plan Administrators at the time the Option is granted.
b. The term of the Option, once it is granted, may be reduced only as provided
for in this Plan and under the express written provisions of the Option.
c. Unless otherwise specifically provided by the written provisions of the
Option or required by applicable disclosure or other legal requirements
promulgated by the Securities and Exchange Commission ("SEC"), no participant of
this Plan or his or her legal representative, legatee, or distributee will be,
or shall be deemed to be, a holder of any shares subject to an Option unless and
until such participant exercises his or her right to acquire all or a portion of
the Stock subject to the Option and delivers the required consideration to the
Company in accordance with the terms of this Plan and then only as to the number
of shares of Stock acquired. Except as specifically provided in this Plan or as
otherwise specifically provided by the written provisions of the Option, no
adjustment to the exercise price or the number of shares of Stock subject to the
Option shall be made for dividends or other rights for which the record date is
prior to the date on which the Stock subject to the Option is acquired by the
holder.
d. Options shall vest and become exercisable at such time or times and on such
terms as the Plan Administrators may determine at the time of the grant of the
Option.
e. Options may contain such other provisions, including further lawful
restrictions on the vesting and exercise of the Options as the Plan
Administrators may deem advisable.
f. In no event may an Option be exercised after the expiration of its term.
g. Options shall be non-transferable, except by the laws of descent and distribution.
7. Exercise Price. The Plan Administrators shall establish the exercise price
payable to the Company for shares to be obtained pursuant to Options, which
exercise price may be amended from time to time as the Plan Administrators shall
determine.
7
8. Payment of Exercise Price. The exercise of any Option shall be contingent on
receipt by the Company of the exercise price paid in either cash, certified or
personal check payable to the Company.
9. Withholding. If the grant of a Benefit hereunder, or exercise of an Option
given as a Benefit is subject to withholding or other trust fund payment
requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or
applicable state or local laws, the Company will initially pay the Optionee's
liability and will be reimbursed by Optionee no later than six months after such
liability arises and Optionee hereby agrees to such reimbursement terms.
10. Dilution or Other Adjustment. The shares of common stock subject to this
Plan and the exercise price of outstanding Options are subject to proportionate
adjustment in the event of a stock dividend on the common stock or a change in
the number of issued and outstanding shares of common stock as a result of a
stock split, consolidation, or other recapitalization. The Company, at its
option, may adjust the Options, issue replacements, or declare Options void.
11. Benefits to Foreign Nationals. The Plan Administrators may, in order to
fulfill the purpose of this Plan and without amending this Plan, grant Benefits
to foreign nationals or individuals residing in foreign countries that contain
provisions, restrictions, and limitations different from those set forth in this
Plan and the Benefits made to United States residents in order to recognize
differences among the countries in law, tax policy, and custom. Such grants
shall be made in an attempt to give such individuals essentially the same
benefits as contemplated by a grant to United States residents under the terms
of this Plan.
12. Listing and Registration of Shares. Each Option shall be subject to the
requirement that if at any time the Plan Administrators shall determine, in
their sole discretion, that it is necessary or desirable to list, register, or
qualify the shares covered thereby on any securities exchange or under any state
or federal law, or obtain the consent or approval of any governmental agency or
regulatory body as a condition of, or in connection with, the granting of such
Option or the issuance or purchase of shares thereunder, such Option may not be
exercised in whole or in part unless and until such listing, registration,
consent, or approval shall have been effected or obtained free of any conditions
not acceptable to the Plan Administrators.
13. Expiration and Termination of this Plan. This Plan may be abandoned or
terminated at any time by the Plan Administrators except with respect to any
Options then outstanding under this Plan. This Plan shall otherwise terminate on
the earlier of the date that is five years from the date first appearing in this
Plan or the date on which the two millionth five hundred thousandth share is
issued hereunder.
14. Amendment of this Plan. This Plan may not be amended more than once during
any six month period, other than to comport with changes in the Code or the
Employee Retirement Income Security Act or the rules and regulations promulgated
thereunder. The Plan Administrators may modify and amend this Plan in any
respect.
ATTEST:
/s/ Martin Tutschek
Martin Tutschek, President and Chief Financial Officer
8
EXHIBIT 4(ii)
SECTION 10(A) PROSPECTUS OF
DELTA CAPITAL TECHNOLOGIES, INC.
August 20, 2003: This document constitutes part of a prospectus covering
securities of Delta Capital Technologies, Inc., a Delaware corporation
("Company"), that have been registered with the Securities and Exchange
Commission ("Commission") under the Securities Act of 1933. This document, a
Section 10(a) Prospectus, contains and constitutes four sections. The first and
second sections "General Plan Information" and "Registrant Information and
Employee Plan Annual Information" are found in this Prospectus. The Company's
latest Form 10-KSB/A, for the fiscal year ended December 31, 2002, which is
incorporated herein by this reference, comprises the third section of this
Prospectus, with which offerees are being constructively provided. The fourth
section of this Prospectus contains a Stock Option Agreement and Notice of
Exercise, which are provided to offerees of stock options, to be completed and
submitted within the time permitted, in conjunction with the tender of the
appropriate consideration, by those who wish to exercise their options.
Item 1. General Plan Information
The Company's board of directors (the "Board") has adopted a benefit plan for
its employees and others entitled "The 2003 Benefit Plan of Delta Capital
Technologies Inc." (the "Plan"). Pursuant to the Plan, the Board can authorize
the issuance of stock or options to purchase stock up to an aggregate of two
million five hundred thousand (2,500,000) shares of common stock of the Company,
par value $0.001 per share (the "Common Stock"), over a maximum of a five year
period, although the Board may shorten this period.
The Board adopted the Plan on August 20, 2003. The Plan is intended to aid the
Company in maintaining and continuing its development of a quality management
team, in attracting qualified employees, consultants, and advisors who can
contribute to the future success of the Company, and in providing such
individuals with an incentive to use their best efforts to promote the growth
and profitability of the Company.
The Plan is not subject to the provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), nor qualified under Section 401(a)
of the Internal Revenue Code of 1986, as amended (the "Code"). Administration of
the Plan is the exclusive province of the Board. Board members are elected at
each annual meeting of shareholders. The term each Board member serves is
therefore one year. If an annual meeting is not held the member shall serve
until the next submission of matters to a vote of Company's shareholders.
As ultimate administrators of the Plan, the Board should be contacted with
requests for additional Plan information. Alternatively, the Board may appoint a
committee to administer the Plan (hereinafter the Board or its duly authorized
committee shall be referred to as "Plan Administrators"). As no committee has
been authorized by the Board, the current Board members are the Plan
Administrators. This group is currently comprised of Martin Tutschek and Ken
Maude. The address of the Board is c/o the Company, Suite 440-375 Water Street
Vancouver, B.C., Canada V6B 5C6, telephone number (604) 312-0663.
In the event a vacancy in the Board arises, the vote of a majority of remaining
directors may select a successor, or, if the remaining Board does not fill the
vacancy, the vote of shareholders may also elect a successor to fill such
vacancy. Board members may be removed from office by the vote of a majority of
the issued and outstanding shares with or without cause. Plan Administrators who
are not Board members can be removed or appointed at any time for any reason by
the majority vote of Board members.
9
The Plan Administrators shall interpret the Plan (which interpretation is
binding on the participants absent demonstrable error), determine which
employees or others shall receive shares or options, decide the number of shares
or options and establish any other terms for the shares or options not already
established in the Company's Plan. Information concerning changes in the Plan
will be provided in the future either in the Company's proxy statements, annual
or other reports, or in amendments to this document.
Securities to be Offered
Shares and options providing for the issuance or purchase of shares equaling a
maximum of two million five hundred thousand (2,500,000) shares of Common Stock
may be granted under the Plan. All options under the Plan are "non-qualified"
stock options. The number of shares of Common Stock issuable under the Plan is
subject to adjustment in the event of changes in the outstanding shares of
Common Stock resulting from stock dividends, stock splits, or recapitalizations.
Employees Who May Participate in the Plan
The Board shall determine which of the Company's employees are eligible to
receive shares or options under the Plan. The term "Employee" includes any
employee, director, officer, or consultant or advisor of the Company or any of
its subsidiaries, provided that bona fide services shall be rendered by
consultants and advisors and such services must not be in connection with the
offer or sale of securities in a capital-raising transaction.
Purchase of Securities Pursuant to the Plan and Payment for Securities Offered
The Plan Administrators shall determine which employees shall receive shares or
options. The Plan is not subject to ERISA and the securities are being issued by
the Company and not purchased on the open market or otherwise.
Options granted under the Plan shall be exercisable as determined by the Plan
Administrators. If an option granted under the Plan should expire or terminate
for any reason without having been exercised in full, the unpurchased shares
subject to that option will again be available for grant under the Plan.
The exercise price payable to the Company for Option Shares shall be as set
forth from time to time by the Plan Administrators. The exercise of any Option
shall be contingent on receipt by the Company of the exercise price paid in
either cash, certified or personal check payable to the Company.
The shares of Common Stock subject to the Plan and the exercise price of
outstanding options are subject to proportionate adjustment in the event of a
stock dividend on the Common Stock or a change in the number of issued and
outstanding shares of Common Stock as a result of a stock split, consolidation,
or other recapitalization. Options and all other interests under the plan shall
be non- transferable, except by means of a will or the laws of descent and
distribution.
10
Amendments and Termination
The Plan may be abandoned or terminated at any time by the Plan Administrators
except with respect to any Options then outstanding under the Plan. The Plan
shall otherwise terminate on the earlier of the date that is five years from the
date first appearing in the Plan or the date on which an option for the two
millionth five hundred thousandth share is either granted under the Plan or on
which the two millionth five hundred thousandth share is de-registered on a
post-effective amendment on Form S-8 filed with the Securities and Exchange
Commission (the "SEC"). No options may be granted under the terms of the Plan
after it has been terminated. The Board may alter or amend the Plan only once
during any six month period, except as to comply with changes to the Code. No
termination, suspension, alteration or amendment may adversely affect the rights
of a holder of a previously issued option without the consent of that holder.
Resale of Common Stock
Shares of Common Stock issued or purchased on exercise of options granted under
the Plan will have been initially registered pursuant to a Form S-8 Registration
Statement filed by the Company. Subsequently, shares obtained pursuant to the
Plan may be eligible for immediate resale depending on whether an exemption from
registration is available or whether the shares are in fact registered. The
Company makes no statement as to subsequent sale-ability of specific shares
obtained pursuant to the Plan and urges any persons seeking to sell shares so
obtained to seek counsel from independent attorneys.
As may be applicable for subsequent resale of shares obtained from the Plan, the
Board believes that the Company has filed all reports and other materials
required to be filed during the preceding twelve months under the Securities
Exchange Act of 1934 as of August 20, 2003.
Tax Effects of Plan Participation & Non-statutory Options
The following discussion of the federal income tax consequences of participation
in the Plan is only a summary, does not purport to be complete, and does not
cover, among other things, state and local tax consequences. Additionally,
differences in participants' financial situations may cause federal, state, and
local tax consequences of participation in the Plan to vary. Therefore, each
participant in the Plan is urged to consult his or her own accountant, legal or
other advisor regarding the tax consequences of participation in the Plan. This
discussion is based on the provisions of the Code as presently in effect.
Under the current provisions of the Code, if shares of Common Stock are issued
to the original holder of a non-qualified option granted and exercised under the
Plan (assuming there is not an active trading market for options of the
Company), (i) the option holder ("Holder") will not recognize income at the time
of the grant of the option; (ii) on exercise of the option the Holder will
recognize ordinary income in an amount equal to the excess of the fair market
value of the shares of Common Stock acquired at the time of exercise over the
exercise price; (iii) upon the sale of the shares of Common Stock the Holder
will recognize a short term or long term capital gain, or loss, as may be, in an
amount equal to the difference between the amount he or she receives from the
sale of those shares and the Holder's tax basis in the shares (as described
below); and (iv) the Company will be entitled to expense as compensation the
amount of ordinary income that the holder recognized, as set forth in Clause
(ii) above.
11
If the Holder pays the exercise price entirely in cash, the tax basis of the
shares of Common Stock will be equal to the amount of the exercise price paid
plus the ordinary income recognized by the Holder from exercising the options.
This basis should equal the fair market value of the shares of Common Stock
acquired on the date of exercise. The holding period will begin on the day after
the tax basis of the shares is determined.
The ordinary income received by the Holder on exercise of the option is
considered to be compensation from the Company. As with other forms of
compensation, withholding tax and other trust fund payments will be due with
respect to the exercise of the options. The Company will initially pay the
Optionee's liability and will be reimbursed by Optionee no later than six months
after such liability arises.
Item 2. Registrant Information and Employee Plan Annual Information
The Company will provide to any Employee upon request a copy, without charge, of
the Company's periodic reports filed with the SEC, including its latest annual
report on Form 10-KSB/A and its quarterly reports on Form 10-QSB. The Company
will also provide any Employee upon written or oral request a copy, without
charge, of the documents incorporated by reference in Item 3 of Part II of the
Form S-8 Registration Statement. These documents are also incorporated by
reference into the Section 10(a) prospectus, of which this document is a part.
Requests for such information should be directed to the Company at Attn: Martin
Tutschek, Suite 440-375 Water Street Vancouver, B.C., Canada V6B 5C6.
Signature Title Date
/s/ Martin Tutschek Director August 22, 2003
- -------------------
Martin Tutschek
/s/ Ken Maude
Ken Maude Director August 22, 2003
12
EXHIBIT 5, 23(b)
GERALD EINHORN
ATTORNEY-AT- LAW*
1751 East Oakridge Drive
Salt Lake City, Utah 84106
Telephone (801)575_8073, Ext. 158
*Admitted only in New York
August 20, 2003
Board of Directors
Delta Capital Technologies, Inc.
440-375 Water Street
Vancouver, British Columbia, Canada V6B 5C6
Signature Stock Transfer, Inc.
2301 Ohio Drive, Suite 100
Plano, Texas 75093
Re: Legality and Authorization of Shares Issued
Under Form S-8 Registration Statement
Gentlemen:
I have acted as special counsel for Delta Capital Technologies, Inc., a Delaware
corporation (the "Company"), in the limited capacity of rendering an opinion
regarding the legality and authorization of the shares proposed to be registered
under a registration statement on Form S-8 (the "Registration Statement") to be
filed with the Securities and Exchange Commission ("the Commission") under the
Securities Act of 1933, as amended, ("the Act"). The Company is registering a
Benefit Plan entitled "The 2003 Benefit Plan of Delta Capital Technologies,
Inc." (the "Benefit Plan") pursuant to which the Company has authorized the
issuance of two million five hundred thousand (2,500,000) shares of the
Company's common stock, par value $.001 (the "Shares").
In connection with the preparation of this Opinion, I have examined the
following:
1. The Company's Articles of Incorporation, amendments thereto and Bylaws as
submitted to me by the Company pursuant to my request for same;
2. The Registration Statement herein referenced;
3. The Board of Directors Resolution, dated August 20, 2003, authorizing and
approving the Company's 2003 Benefit Plan and the preparation of the
Registration Statement;
4. The Company's Section 10(a) Prospectus for the Registration Statement;
5. The Company's Amended Form 10-KSB/A for the fiscal year ended December 31,
2002 and the Company's Form 10-QSB for the quarterly period ended June 30, 2003;
6. Such other documents as I have deemed necessary for the purposes of this Opinion.
13
Additionally, I have made such investigations of federal law as I have
considered necessary and appropriate to form a basis for this opinion. My
opinion is qualified by the scope of the review specified herein and I make no
representations as to the sufficiency of my investigation for this opinion. I
further expressly exempt from this opinion any representations as to the
completeness, adequacy, accuracy or any other aspect of the financial statements
incorporated in the Registration Statement.
The documentation and representations provided to me for this opinion by the
Company and its duly authorized representatives indicate that the Company is
validly organized under the laws of the State of Delaware; the Company is
current in its filings with the Commission; the Company's Board of Directors has
authorized the Benefit Plan; the Company's Board of Directors has authorized the
filing of the Registration Statement; and that the two million five hundred
thousand (2,500,000) shares to be included in the Registration Statement are
available for issuance based upon corporate documentation and on the number of
shares actually issued and outstanding. As such, I am of the opinion that the
Shares herein referenced have been duly and validly authorized and that subject
to compliance with all provisions of the Plan, the Shares will be validly issued
as fully paid and non-assessable shares of common stock in the Company.
This opinion is based upon and subject to the qualifications and limitations
specified below:
(A) Certain of the remedial provisions of the 2003 Benefit Plan may be
further limited or rendered unenforceable by other applicable laws and
interpretations.
(B) In rendering the opinion that the shares of the common stock to be
registered pursuant to the Registration Statement and issued under the
Benefit Plan will be validly issued, fully paid and non-assessable, I
assumed that: (1) the Company's Board of Directors has exercised good faith
in establishing the value paid for the Shares; (2) all issuances and
cancellations of the capital stock of the Company will be fully and
accurately reflected in the Company's Stock Records as provided by the
Company's transfer agent; and (3) the consideration, as determined by the
Company's Board of Directors, to be received in exchange for each issuance
of common stock of the Company, has been paid in full and actually received
by the Company.
(C) I have made no independent verification of the facts asserted to be true
and accurate by authorized representatives of the Company and have assumed
that no person or entity has engaged in fraud or misrepresentation regarding
the inducement relating to, or the execution or delivery of, the documents
reviewed.
(D) In rendering this opinion I have assumed that all signatures are
genuine, that all documents submitted to me as copies conform substantially
to the originals, that all documents have been duly executed on or as of the
date represented on the documents, that execution and delivery of the
documents were duly authorized on the part of the parties, that all
documents are legal, valid and binding on the parties and that all corporate
records are complete.
(E) I have assumed that the Company is satisfying the substantive
requirements of Form S-8 and I expressly disclaim any opinion regarding the
Company's compliance with such requirements, whether they are of federal or
state origin, or any opinion as to the subsequent tradeability of any Shares
issued pursuant to the Benefit Plan.
14
(F) I am admitted to practice law in the State of New York. I am not
admitted to practice law in the State of Delaware or in any other
jurisdiction where the Company may own property or transact business. This
opinion is with respect to federal law only and I have not consulted legal
counsel from any other jurisdiction for the purpose of the opinion contained
herein. I expressly except from this opinion any opinion as to whether or to
what extent a Delaware court or any other court would apply Delaware law, or
the law of any other state or jurisdiction, to any particular aspect of the
facts, circumstances and transactions that are the subject of this opinion.
(G) This opinion is strictly limited to the parameters contained and
referenced herein and is valid only as of the signature date with respect to
the same. I assume no responsibility to advise you of any subsequent changes
or developments which might affect any aspect of this opinion.
I hereby consent to the use of this opinion as an exhibit to the Registration
Statement. This opinion may not be used, relied upon, circulated, quoted or
otherwise referenced in whole or in part for any purpose without my prior
written consent.
Sincerely,
/s/ Gerald Einhorn
Gerald Einhorn
15
EXHIBIT 23(a)
- -----------------------------------------------------------------------------
PETERSON SULLIVAN PLLC
601 UNION STREET SUITE 2300 SEATTLE WA 98101 (206) 382-7777 FAX 382-7700
CERTIFIED PUBLIC ACCOUNTANTS
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in the registration
statement (No. 000-27407) on Form S-8 of Delta Capital Technologies, Inc. of our
report dated May 16, 2003, relating to the balance sheet of Delta Capital
Technologies, Inc. as of December 31, 2002, and the related statements of
operations, shareholders' equity and cash flows for the years ended December 31,
2002 and 2001, which report appears in the Annual Report on Form 10-KSB and Form
10KSB/A for the year ended December 31, 2002, of Delta Capital Technologies,
Inc.
August 21, 2003
Seattle, Washington
16