EXHIBIT 10.21
ESCROW AGREEMENT
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THIS AGREEMENT dated for reference the 16th day of November, 1993, is made
BETWEEN:
MONTREAL TRUST COMPANY OF CANADA, of 2nd Floor,
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0
(the "Escrow Agent")
AND:
X.X. XXXXXXX FINANCIAL SERVICES CORP., a company duly incorporated under
the laws of the Province of British Columbia having its registered office
at Suite 2200 - 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X
0X0;
(the "Issuer")
AND:
EACH SHAREHOLDER, as defined in this Agreement:,
WHEREAS the Shareholder has acquired or is about to acquire shares of the
Issuer;
AND WHEREAS the Escrow Agent has agreed to act as escrow agent in respect of the
shares upon the acquisition of the shares by the Shareholder;
NOW THEREFORE in consideration of the covenants contained in this Agreement and
other good and valuable consideration (the receipt and sufficiency of which is
acknowledged), the Parties agree as follows:
1. INTERPRETATION
In this Agreement:
(a) "Acknowledgement" means the acknowledgement and agreement to be bound
in the form attached as Schedule "A" to this Agreement;
(b) "Act" means the Securities Act, S.B.C. 1985, c. 83;
(c) "Exchange" means the Vancouver Stock Exchange;
(d) "Earn-out Formula" means the formula by which the Shares shall be
released from the escrow restrictions provided for in this Agreement,
which release formula is attached hereto as Schedule "B";
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(e) "IPO" means the initial public offering of common shares of the Issuer
under a prospectus which has been filed with, and for which a receipt
has been obtained from, the Superintendent under section 42 of the
Act;
(f) "Local Policy Statement 3-07" means the Local Policy Statement 3-07 in
effect as of the date of reference of this Agreement, a copy of which
is available for review at the Issuer's registered office;
(g) "Shareholder" means a holder of shares of the Issuer who executes this
Agreement or an Acknowledgement;
(g) "Shares" means the shares of the Shareholder described in Schedule "C"
to this Agreement, as amended from time to time in accordance with
section 9;
(h) "Superintendent" means the Superintendent of Brokers appointed under
the Act; and
(i) "Superintendent or the Exchange" means the Superintendent, if the
shares of the Issuer are not listed on the Exchange, or the Exchange,
if the shares of the Issuer are listed on the Exchange.
2. PLACEMENT OF SHARES IN ESCROW
The Shareholder places the Shares in escrow with the Escrow Agent and shall
deliver the certificates representing the Shares to the Escrow Agent as soon as
practicable.
3. VOTING OF SHARES IN ESCROW
Except as provided by section 4(a), the Shareholder may exercise all voting
rights attached to the Shares.
4. WAIVER OF SHAREHOLDER'S RIGHTS
The Shareholder waives the rights attached to the Shares
(a) to vote the Shares on a resolution to cancel any of the Shares,
(b) to receive dividends, and
(c) to participate in the assets and property of the Issuer on a winding
up or dissolution of the Issuer.
until such time as such Shares are released from Escrow in accordance with
Section 7(2) hereof
5. ABSTENTION FROM VOTING AS A DIRECTOR
A Shareholder that is or becomes a director of the Issuer shall abstain from
voting on a directors' resolution to cancel any of the Shares.
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6. TRANSFER WITHIN ESCROW
(1) The Shareholder shall not transfer any of the Shares except in accordance
with Local Policy Statement 3-07 and with the consent of the Superintendent
or the Exchange.
(2) The Escrow Agent shall not effect a transfer of the Shares within escrow
unless the Escrow Agent has received:
(a) a copy of an Acknowledgement executed by the person to whom the Shares
are to be transferred, and
(b) a letter from the Superintendent or the Exchange consenting to the
transfer.
(3) Upon the death or bankruptcy of a Shareholder, the Escrow Agent shall hold
the Shares subject to this Agreement for the person that is legally
entitled to become the registered owner of the Shares, subject to such
person effecting any transfer within escrow of the Shares to a principal of
the Company in accordance with this Agreement and the rules and policies of
the Exchange.
(4) Subject to section 8 hereof a Shareholder who ceases to be a principal of
the Company, as that term is defined in Local Policy Statement 3-07, dies,
or becomes bankrupt, may retain the Shares held hereunder by the
Shareholder.
7. RELEASE FROM ESCROW
(1) The Shareholder irrevocably directs the Escrow Agent to retain the Shares
until the Shares are released from escrow pursuant to subsection (2) or
surrendered for cancellation pursuant to section 8.
(2) The Escrow Agent shall not release the Shares from escrow unless the Escrow
Agent has received a letter from the Superintendent or the Exchange
consenting to the release which release shall be based on the Earn-out
Formula provided for in Schedule "B" attached hereto and which release
shall be in accordance with and governed by the provisions contained in
Local Policy Statement 3- 07 and the rules of the Exchange.
(3) The approval of the Superintendent or the Exchange to a release from escrow
of any of the Shares shall terminate this Agreement only in respect of the
Shares so released.
8. SURRENDER FOR CANCELLATION
The Shareholder shall surrender the Shares for cancellation and the Escrow Agent
shall deliver the certificates representing the Shares to the Issuer:
(a) at the time of a major reorganization of the Issuer, if required as a
condition of the consent to the reorganization by the Superintendent
or the Exchange,
(b) where the Issuer's shares have been subject to a cease trade order
issued under the Act for a period of 2 consecutive years,
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(c) 10 years from the later of the date of issue of the Shares and the
date of the receipt for the Issuer's prospectus on its IPO.
9. AMENDMENT OF AGREEMENT
(1) Subject to subsection (2), this Agreement may be amended only by a written
agreement among the Parties and with the written consent of the
Superintendent or the Exchange.
(2) Schedule "C" to this Agreement shall be amended upon:
(a) a transfer of Shares pursuant to section 6,
(b) a release of Shares from escrow pursuant to section 7, or
(c) a surrender of Shares for cancellation pursuant to section 8,
and the Escrow Agent shall note the amendment on the Schedule "C" in its
possession.
10. INDEMNIFICATION OF ESCROW AGENT
The Issuer and the Shareholders, jointly and severally, release, indemnify and
save harmless the Escrow Agent from all costs, charges, claims, demands,
damages, losses and expenses resulting from the Escrow Agent's compliance in
good faith with this Agreement.
11. RESIGNATION OF ESCROW AGENT
(1) If the Escrow Agent wishes to resign as escrow agent in respect of the
Shares, the Escrow Agent shall give notice to the Issuer.
(2) If the Issuer wishes the Escrow Agent to resign as escrow agent in respect
of the Shares, the Issuer shall give notice to the Escrow Agent.
(3) A notice referred to in subsection (1) or (2) shall be in writing and
delivered to:
(a) the Issuer at Suite 1600, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0, or
(b) the Escrow Agent at 2nd Floor, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0,
and the notice shall be deemed to have been received on the date of delivery.
The Issuer or the Escrow Agent may change its address for notice by giving
notice to the other party in accordance with this subsection.
(4) A copy of a notice referred to in subsection (1) or shall concurrently be
delivered to the Superintendent or the Exchange.
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(5) The resignation of the Escrow Agent shall be effective and the Escrow Agent
shall cease to be bound by this Agreement on that date that is 180 days
after the date of receipt of the notice referred to in subsection (1) or
(2) or on such other date as the Escrow Agent and the Issuer may agree upon
(the "resignation date").
(6) The Issuer shall, before the resignation date and with the written consent
of the Superintendent or the Exchange, appoint another escrow agent and
that appointment shall be binding on the Issuer and the Shareholders.
12. FURTHER ASSURANCES
The Parties shall execute and deliver any documents and perform any acts
necessary to carry out the intent of this Agreement.
13. TIME
Time is of the essence of this Agreement.
14. GOVERNING LAWS
This Agreement shall be construed in accordance with and governed by the laws of
British Columbia and the laws of Canada applicable in British Columbia.
15. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall
be deemed to be an original and all of which shall constitute one agreement.
16. LANGUAGE
Wherever a singular expression is used in this Agreement, that expression is
deemed to include the plural or the body corporate where required by the
context.
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17. ENUREMENT
This Agreement enures to the benefit of and is binding on the Parties and their
heirs, executors, administrators, successors and permitted assigns.
IN WITNESS WHEREOF the parties hereto have hereunto executed this Agreement as
of the day and year first above written.
THE CORPORATE SEAL of MONTREAL )
)
TRUST COMPANY OF CANADA was )
hereunto affixed in the presence of )
)
/s/ )
Per: _______________________________ ) c/s
Authorized Signatory )
)
/s/ )
Per: _______________________________ )
Authorized Signatory )
THE CORPORATE SEAL of X.X. XXXXXXX )
FINANCIAL SERVICE CORP. was )
hereunto affixed in the presence of )
)
/s/ )
Per: _______________________________ ) c/s
Authorized Signatory )
)
Per: _______________________________ )
Authorized Signatory )
SIGNED, SEALED AND DELIVERED by )
XXXXX XXXXXX in the presence of: )
)
/s/ Xxxxx Xxxxx )
__________________________________ ) /s/ Xxxxx Xxxxxx
Signature of Witness ) ________________________________
) XXXXX XXXXXX
__________________________________ )
Address of Witness )
)
__________________________________ )
Occupation of Witness )
SIGNED, SEALED AND DELIVERED by )
XXXXX XXXXX in the presence of: )
)
/s/ Xxxxx Xxxxxx )
__________________________________ ) /s/ Xxxxx Xxxxx
Signature of Witness ) ________________________________
) XXXXX XXXXX
Vancouver )
__________________________________ )
Address of Witness )
)
__________________________________ )
Occupation of Witness )
)
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SIGNED, SEALED AND DELIVERED by )
XXXXXXX X. XXXXXXX in the presence of: )
)
/s/ )
__________________________________ ) /s/ Xxxxxxx X. Xxxxxxx
Signature of Witness ) ________________________________
) XXXXXXX X. XXXXXXX
__________________________________ )
Address of Witness )
)
__________________________________ )
Occupation of Witness )
SIGNED, SEALED AND DELIVERED by )
XXXXXXX XXXXXX in the presence of: )
)
/s/
__________________________________ ) /s/ Xxxxx Xxxxx
Signature of Witness ) ________________________________
) XXXXX XXXXX
__________________________________ )
Address of Witness )
)
__________________________________ )
Occupation of Witness )
