Exhibit 4 Execution Copy
HYDROGENICS CORPORATION
- and -
GENERAL MOTORS CORPORATION
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ESCROW AGREEMENT
October 16, 2001
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Execution Copy
ESCROW AGREEMENT
THIS AGREEMENT made as of this 16th day of October, 2001.
BETWEEN:
HYDROGENICS CORPORATION, a corporation governed by
the laws of Canada,
(the "Corporation")
- and -
GENERAL MOTORS CORPORATION, a corporation governed by
the laws of the State of Delaware,
("GM")
- and -
OSLER, ▇▇▇▇▇▇ & HARCOURT LLP,
(the "Escrow Agent")
RECITALS
A. GM is desirous of depositing in escrow certain warrants (the
"Warrants") to purchase common shares of the Corporation owned by them;
B. The Escrow Agent has agreed to undertake and perform its duties
according to the terms and conditions hereof;
THEREFORE this Agreement witnesseth that in consideration of the aforesaid
agreements, and of the sum of one dollar ($1.00) now paid by the parties hereto,
each to the other (receipt of which sum the parties do hereby respectively
acknowledge each to the other) GM covenants and agrees severally with the
Corporation and with the Escrow Agent and the Corporation and the Escrow Agent
covenant and agree each with the other and severally with GM as follows:
1. Deposit of Warrants in Escrow
GM hereby places and deposits in escrow the Warrants, each exercisable for the
purchase of 61,760.9 common shares of the Corporation, which are represented by
certificates number W-1 through W-40 each dated as of the date of this
Agreement, (the "Escrowed Warrants") with the Escrow Agent and hereby undertakes
and agrees forthwith to deliver those securities (including any replacement
securities or certificates if and when such are issued or allotted) to the
Escrow Agent for deposit in escrow.
2. Restriction on Transfer
The parties hereby agree that the Escrowed Warrants and the beneficial ownership
of any interest in them and the certificates representing them (including any
replacement certificates) shall not be sold, assigned, hypothecated, alienated,
released from escrow, transferred within escrow, or otherwise in any manner
dealt with except in accordance with this Agreement.
3. Direction to Escrow Agent
GM hereby directs the Escrow Agent to retain the Escrowed Warrants and the
certificates (including any replacement securities or certificates) representing
same and not to do or cause anything to be done to release the same from escrow
or to allow any transfer, hypothecation or alienation thereof.
4. Release from Escrow
The Escrow Agent shall release from escrow and deliver to GM one Warrant
Certificate on the 15th of every month commencing on November 15, 2001 and shall
continue to do so until such time as either (a) the Corporate Alliance Agreement
entered into between the Corporation and GM on the date hereof shall have been
terminated; or (b) all of the Escrowed Warrants (including any replacemetn
securities or certificates) shall have been released from escrow in accordance
with the terms hereof.
5. Acknowledgement
The Corporation hereby acknowledges the terms and conditions of this Agreement
and agrees to take all reasonable steps to facilitate its performance.
6. Resignation of Escrow Agent
If the Escrow Agent shall wish to resign, it shall give at least three months'
notice to the Corporation, which may, by writing appoint another Escrow Agent in
its place, provided such Escrow Agent is a trust company authorized to carry on
business in the Province of Ontario and such appointment shall be binding on the
Security Holders and the new Escrow Agent shall assume and be bound by the
obligations of the Escrow Agent, if a successor agent has not been appointed,
then the Corporation or the Security Holder may apply to the Ontario Court of
Justice (General Division) for the appointment of a successor agent. Failing
such application to the court within thirty (30) days from such effective date,
then the Escrow Agent shall deliver the Escrowed Warrants to the Corporation to
be held in trust for the Security Holders pursuant to this Agreement.
7. Expenses
The Corporation shall pay the Escrow Agent for the above-mentioned services
during the terms of this Agreement and shall reimburse the Escrow Agent for all
costs and expenses, including legal fees incurred for the carrying out of its
duties hereunder.
8. Acceptance
The Escrow Agent hereby accepts the covenants and obligations in this Agreement
declared and provided for and agrees to perform the same upon the terms and
conditions herein set forth and to hold and exercise the rights, privileges and
benefits conferred upon it hereunder.
9. Terms of Escrow Agent Appointment
The acceptance by the Escrow Agent of its duties and obligations under this
Agreement is subject to the following terms and conditions, which the parties to
this Agreement hereby agree shall govern and control with respect to its rights,
duties, liabilities and immunities:
(a) in the exercise and discharge of its rights and duties hereunder,
the Escrow Agent shall act honestly and in good faith and shall
exercise the degree of care, diligence and skill that a reasonably
prudent escrow agent would exercise in comparable circumstances.
(b) the Escrow Agent shall not be responsible or liable in any manner
whatever for the sufficiency, correctness, genuineness or validity
of any security deposited with it.
(c) the Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, receipt or other paper or document
furnished to it, not only as to its due execution and the validity
and effectiveness of its provisions but also as to the truth and
acceptability of any information therein contained which it in good
faith believes to be genuine and what it purports to be;
(d) except for the Escrow Agent's act of negligence or wilful
misconduct the Escrow Agent shall not be liable for any act done or
step taken or omitted by it in good faith, or for any mistake of
fact or law and the Corporation and GM jointly and severally agree
to indemnify and save harmless the Escrow Agent from and against all
claims, demands, actions, suits or other proceedings and
whomsoever made, prosecuted or brought and from all loss, costs,
damages and expenses whatsoever in any manner based upon,
occasioned by or attributable to any act of the Escrow Agent in
the execution of its duties hereunder;
(e) the Escrow Agent represents that, at the time of execution and
delivery hereof, no material conflict of interest exists in the
Escrow Agent's role as a fiduciary hereunder and agrees that, in the
event of a material conflict of interest arising hereafter, it
shall, within ten (10) days after ascertaining that it has such a
material conflict of interest, either eliminate such conflict or
resign as Escrow Agent hereunder;
(f) the Escrow Agent may consult with and obtain advice from legal
counsel in the event of any question as to any of the provisions
hereof of its duties hereunder, and it shall incur no liability and
shall be fully protected in acting in good faith in accordance with
the opinion and instructions of such counsel.
(g) the Escrow Agent may, in its personal or any other capacity, invest
in, lend on, deal in and hold securities of the Corporation (other
than the Escrowed Warrants) and generally may contract with the
Corporation without being liable to account for any profit or gain
realized thereby;
(h) The Escrow Agent shall have no duties except those which are
expressly set forth herein, and it shall not be bound by any notice
of a claim or demand with respect thereto, or any waiver,
modification, amendment, termination or rescission of this
Agreement, unless received by it in writing, and signed by the other
parties hereto, and, if its duties herein are affected, unless it
shall have given its prior written consent thereto; and
(i) in the event of any disagreement arising regarding the terms of the
Agreement, the Escrow Agent shall be entitled at its option to
refuse to comply with any and all demands whatsoever until the
dispute is settled either amongst the parties or by act of competent
jurisdiction.
10. Notice
Any notice required or permitted to be given hereunder shall be given by prepaid
registered mail or via facsimile with a copy to follow by prepaid registered
mail as follows:
The Corporation
Hydrogenics Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
with a copy to:
Osler, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
GM:
General Motors Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
MC 482-C23-D24
Facsimile: 313-667-3188
Attention: General Counsel
Escrow Agent:
Osler, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Any Notice delivered or transmitted to a Party as provided above shall be deemed
to have been given and received on the day it is delivered or transmitted,
provided that it is delivered or transmitted on a Business Day prior to 5:00
p.m. local time in the place of delivery or receipt. However, if the Notice is
delivered or transmitted after 5:00 p.m. local time or if such day is not a
Business Day then the Notice shall be deemed to have been given and received on
the next Business Day. Any Party may, from time to time, change its address by
giving Notice to the other Parties in accordance with the provisions of this
Section.
11. Counterparts
This Agreement may be executed in several parts in the same form and such parts
as so executed shall together from one original agreement, and such parts, if
more than one, shall be read together and construed as if all the signing
parties hereto had executed one copy of this Agreement, and delivery of the
counterparts may be effected by means of telecopier.
12. Termination
This Agreement shall terminate either when (a) the Corporate Alliance Agreement
shall have been terminated; or (b) all of the Escrowed Warrants (including any
replacement securities or certificates) have been released from escrow in
accordance with the terms hereof. If there remains in escrow any Escrowed
Warrants upon termination of this Agreement, the Escrow Agent shall immediately
return such Escrowed Warrants to the Corporation.
13. Definitions and Interpretation
All capitalized terms used herein and not otherwise defined shall have the
meaning ascribed thereto in the subscription agreement between the corporation
and GM dated the date hereof. Wherever the singular or masculine are used
throughout this Agreement, the same shall be construed as being the plural or
feminine or neuter where the context so requires.
14. Time
Time shall be of the essence of this Agreement.
15. Binding Agreement
This Agreement shall enure to the benefit of and be binding on the parties
hereto and their respective heirs, administrators, executors, successors and
permitted assigns.
16. Choice of Law
This Agreement shall be construed and interpreted in accordance with the laws of
the Province of Ontario and the laws of Canada applicable therein.
IN WITNESS WHEREOF the parties hereto have executed these presents the day and
year first above written.
HYDROGENICS CORPORATION
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and CEO
GENERAL MOTORS CORPORATION
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
OSLER, ▇▇▇▇▇▇ & HARCOURT LLP, as
Escrow Agent
By: ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇
Title: Partner
SCHEDULE "A"
RELEASE DIRECTION
To: Osler, ▇▇▇▇▇▇ & Harcourt LLP, Escrow Agent
c. General Motor Corporation, General Counsel
Re: Escrow Agreement dated October 16, 2001, (the "Escrow Agreement")
between Hydrogenics Corporation and General Motors Corporation
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Reference is made to Section 4 of the Escrow Agreement. The undersigned hereby
directs the Escrow Agent to release from escrow to GM forthwith, at GM's
direction an Escrowed Warrant to purchase 61,760.9 common shares of the
Corporation and this direction shall be your good and proper authority for doing
so.
All capitalized terms used in this direction shall have the meaning ascribed
thereto in the Escrow Agreement.
Signed this __________day of __________, _______.
HYDROGENICS CORPORATION
By:
---------------------------------
Name:
Title:
