EXHIBIT 2.4
THIS AGREEMENT made this ______ day of __________, 1999.
AMONG:
MED-EMERG INTERNATIONAL INC., a corporation incorporated
pursuant to the laws of the Province of Ontario
(herein called the "Issuer")
- and -
MONTREAL TRUST COMPANY OF CANADA, a trust company authorized
to carry on business in each province of Canada
(herein called the "Escrow Agent")
- and -
THOSE PERSONS LISTED IN SCHEDULE "A" HERETO
(herein called the "Securityholders")
WHEREAS the Securityholders wish to deposit in escrow certain common
shares (the "Escrowed Shares") of the Issuer owned by them and have for that
purpose delivered to the Escrow Agent the security certificate(s) described
in SCHEDULE "A", the receipt of which certificates the Escrow Agent hereby
acknowledges;
AND WHEREAS the Escrow Agent has agreed to undertake and perform its
duties according to the terms and conditions hereof;
NOW THEREFORE this agreement witnesses that, in consideration of the sum
of one dollar ($1.00) paid by the parties to each other, receipt of this sum
being acknowledged by each of the parties, the Securityholders jointly and
severally, covenant and agree with the Issuer and with the Escrow Agent, and
the Issuer and the Escrow Agent covenant and agree each with the other and
with the Securityholders jointly and severally, as follows:
1. In this Escrow Agreement, or in any amendment or agreement supplemental
hereto, unless the context otherwise requires, the following terms shall
have the following meanings:
a. "BOARD OF DIRECTORS" means the board of directors of the Issuer;
b. "CHANGE OF CONTROL" means any of the:
i. the sale by the Issuer of all the assets of the Issuer or
substantially all the assets of the Issuer; or
ii. the amalgamation, arrangement, merger or other consolidation
of the Issuer with or into any one or more other corporations,
(1) pursuant to which a Person or company or combination of
Persons and/or companies thereafter hold a greater number
of Voting Shares or other securities of the successor or
continuing corporation having rights of purchase,
conversion or exchange into Voting Shares of the
successor or continuing corporation (assuming the
purchase, conversion or exchange of other securities
whether then purchasable, convertible or exchangeable or
not into the highest number of Voting Shares of the
successor or continuing corporation such Persons and/or
companies would be entitled to) than the number of Voting
Shares of the successor or continuing corporation held
directly and indirectly by former shareholders of the
Issuer; or
(2) such other amalgamation, arrangement, merger or other
consolidation which, in the opinion of the Board of
Directors, should be subject to this
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Change of Control definition in order to fairly protect
the rights of the Securityholders;
c. "DIRECTION" means a direction of the Issuer in the form attached as
SCHEDULE "B" hereto;
d. "PERSON" has the meaning ascribed to it in the BUSINESS CORPORATIONS
ACT (Ontario) and which, for the purposes of this Agreement, shall
include the Issuer;
e. "VOTING SHARES" means the voting securities of the Corporation
within the meaning of the SECURITIES ACT (Ontario).
2. Each of the Securityholders hereby places and deposits in escrow with
the Escrow Agent those of the Securityholder's securities of the Issuer
described in SCHEDULE "A" and the Escrow Agent hereby acknowledges
receipt of those certificates. Each of the Securityholders agrees to
deposit in escrow any replacement securities or certificates which may
at any time be issued for any escrowed securities.
3. Each of the Securityholders shall be entitled to a letter or receipt
from the Escrow Agent stating the number of securities represented by
certificates held for the Securityholder by the Escrow Agent subject to
the terms of this agreement. It is expressly understood and agreed by
the parties to this Escrow Agreement that such letter or receipt shall
not be assignable.
4. Except as provided in Section 5, the securities deposited in escrow as
described shall remain in escrow and shall not be sold, assigned,
hypothecated, pledged, charged, alienated, released from escrow,
transferred within escrow or otherwise in any manner dealt with, without
the prior written consent of the Issuer to the Escrow Agent. The
foregoing shall not prevent any transfer or assignment which may be
required by reason of the death or bankruptcy of any Securityholder, in
which case the Escrow Agent shall hold the said securities and
certificates in escrow, subject to the provisions of this agreement, for
whatever person or company shall be legally entitled to be or become the
registered owner thereof.
5. The Issuer agrees with the Securityholders that the Escrowed Shares
shall be released to the Securityholders upon the earlier of:
a. February 9, 2001;
b. that date on which the prior twenty day weighted average share price
of the Issuer's common shares exceeds U.S. $3.40, provided that, if
the Direction is received:
i. on or prior to February 9, 2000, one-third (1/3) of the
Escrowed Shares of each Securityholder shall be automatically
released on each of February 9, 2000, August 9, 2000 and
February 9, 2001;
ii. subsequent to February 9, 2000 but prior to August 9, 2000,
one-third (1/3) of the Escrowed Shares of each Securityholder
shall be released immediately, one-third (1/3) shall be
automatically released on August 9, 2000, and the remaining
one-third (1/3) shall be released on February 9, 2001;
iii. subsequent to August 9, 2000 but prior to February 9, 2001,
two-thirds (2/3) of the escrowed shares will be released
immediately with the balance of the escrowed shares released
on February 9, 2001;
c. in the event of the liquidation, dissolution or winding-up of the
Issuer, whether voluntary or involuntary, or any other distribution
of assets of the Issuer among its shareholders for the purpose
winding-up its affairs; and
d. in the event of a Change of Control of the Issuer.
In the case of subsection 5.a. above, the Trustee shall automatically
release the Escrowed Shares. In the case of subsections 5.b. through and
including 5.d. above, the Issuer shall provide the Direction to the
Trustee to
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effect such release and, subject to the release terms of Section 5.b.
above, the Trustee shall immediately release the Escrowed Shares.
6. If during the period in which any of the Escrowed Shares are retained in
escrow pursuant hereto any cash dividend is received by the Issuer in
respect of the Escrowed Shares, any such cash dividend shall be
forthwith paid or transferred to the respective Securityholders entitled
thereto. If during the period in which any of the Escrowed Shares are
retained in escrow pursuant hereto, any share dividend or other
distribution of securities is received by the Escrow Agent in respect of
the Escrowed Shares, any certificates representing such share dividend
or securities will be held by the Escrow Agent on and subject to the
terms of this agreement. If during the period in which any of the
Escrowed Shares are retained in escrow pursuant hereto, any share
dividend or other distribution of securities is received by a
Securityholder in respect of the Escrowed Shares, any certificates
representing such share dividend or securities must be forthwith
deposited by the securityholders with the Escrow Agent to be held by the
Escrow Agent on and subject to the terms of this agreement.
7. Any Securityholder may hypothecate, pledge or charge any or all
securities owned by it and deposited in escrow hereunder to a financial
institution, provided that prior to such hypothecation, pledge or
charge, such financial institution enters into an agreement with the
particular Securityholder and the Issuer whereby it agrees to be bound
by the provisions of this agreement and acknowledges that the securities
so hypothecated, pledged or charged may not be sold, transferred or
otherwise dealt with except in accordance with the provisions of this
agreement, and provided that the Securityholder provides to the Escrow
Agent any and all documents that the Escrow Agent deems necessary or
required in order to effect to such hypothecation, pledge or charge.
8. All voting rights attached to the escrowed securities shall at all times
be exercised by the respective registered owners thereof and the Issuer
and the Escrow Agent shall take all necessary steps from time to time to
permit the registered owners to exercise such rights.
9. The Escrow Agent accepts the responsibilities placed on the Escrow Agent
by this agreement and agrees to perform them in accordance with the
terms hereof and with the applicable consent of the Issuer or the
Direction of the parties hereto.
10. The Issuer hereby acknowledges the terms and conditions of this
agreement and agrees to take all reasonable steps to facilitate the
Issuer's performance of this agreement and to pay the Escrow Agent's
proper charges for the Escrow Agent's services as trustee of this escrow.
11. The Securityholders and the Issuer hereby jointly and severally agree to
and do hereby release and indemnify and save harmless the Escrow Agent
and its employees, officers, directors and agents from and against all
claims, suits, demands, costs, damages and expenses which may be
occasioned by any of them by reason of the Escrow Agent's compliance in
good faith with the terms hereof.
12. If the Escrow Agent should wish to retire, the Escrow Agent shall
provide ninety (90) days' notice to the Issuer, and the Issuer may by
writing appoint another trustee in the Escrow Agent's place and such
appointment shall be binding on the Securityholders, and the new trustee
shall assume and be bound by the obligations of the Escrow Agent
hereunder.
13. This agreement may be amended upon agreement of the Issuer, the Escrow
Agent and the Securityholders.
14. This agreement may be executed in several counterparts in the same form
and the counterparts as so executed shall together constitute one
original agreement, and the parts, if more than one, shall be read
together and shall be construed as if all the signing parties hereto had
executed one copy of this agreement.
15. This agreement constitutes the entire understanding between the parties
to this agreement with respect to the subject matter of this agreement
and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, between the parties and there are
no warranties, representations or other agreements between the parties
in connection with this agreement, except as specifically set forth in
this agreement.
16. This agreement shall be interpreted in accordance with and governed in
all respects by the laws of the Province of Ontario.
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17. Any provision or any portion of any provision or provisions of this
agreement determined by a court of competent jurisdiction to be invalid,
illegal or unenforceable shall be deemed stricken to the extent
necessary to eliminate any invalidity, illegality or unenforceability
and the rest of the agreement and all other provisions and parts of this
agreement shall remain in full force and effect and be binding on the
parties to this agreement as though the illegal or unenforceable
provision or provisions or part or parts of the agreement had never been
included in this agreement.
18. In this agreement, the expression "the Securityholders" shall include
the Securityholders' respective permitted transferees within escrow and
any person to whom the interest of a Securityholder may be transmitted
by operation of law as provided herein, and the expression "the Escrow
Agent" shall include a new trustee appointed hereunder, and wherever the
singular or masculine is used, the same shall be construed to include
the plural or feminine or neuter where the context so requires.
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19. This agreement shall enure to the benefit of and be binding on the
parties to this agreement and each of their heirs, executors,
administrators, successors and permitted assigns.
IN WITNESS WHEREOF the Issuer, the Escrow Agent and the Securityholders
have executed this Escrow Agreement as of the date and year first above
written.
MED-EMERG INTERNATIONAL INC.
Per: __________________________________
Per: __________________________________
MONTREAL TRUST COMPANY OF CANADA
Per: __________________________________
Per: __________________________________
SIGNED, SEALED AND DELIVERED by the respective Securityholder set out
below.
977675 ONTARIO INC.
Per: __________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
PAGE ▇▇▇▇▇▇▇ & ASSOCIATES LTD.
Per: __________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SCHEDULE "A" to the Escrow Agreement dated the _____ day of ________________,
1999 and made among Med-Emerg International Inc., Montreal Trust Company of
Canada and the parties listed on the execution page to the Escrow Agreement
(therein called the "Securityholders")
--------------------------------------------------------------------------
NUMBER OF
NAME OF SECURITYHOLDERS TYPE OF SECURITIES SECURITIES
----------------------- ------------------ -----------
977675 ONTARIO INC. Common Shares 50,636
(▇▇▇▇▇▇ ▇▇▇▇▇▇)
PAGE ▇▇▇▇▇▇▇ & ASSOCIATES LTD. Common Shares 46,310
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇)
SCHEDULE "B" to the Escrow Agreement dated the _____ day of
________________, 1999 and made among Med-Emerg International Inc.,
Montreal Trust Company of Canada and the parties listed on the execution
page to the Escrow Agreement (therein called the "Securityholders")
DIRECTION
TO: Montreal Trust Company of Canada
Reference is made to the escrow agreement dated -, 1999 (the "Escrow
Agreement") among Med-Emerg International Inc., Montreal Trust Company of
Canada, 977675 Ontario Inc. and Page ▇▇▇▇▇▇▇ & Associates Ltd. Capitalized
terms which are not otherwise defined herein shall have the meaning ascribed
to such terms in the Escrow Agreement.
Montreal Trust Company of Canada is hereby authorized and directed to
proceed with a release of the Escrowed Shares of each Securityholder held in
escrow under the Escrow Agreement pursuant to the terms of Section 5___ of
the Escrow Agreement.
DATED this _______ day of _________________, 1999.
MED-EMERG INTERNATIONAL INC.
Per: __________________________________
