EXHIBIT 10.22
VOLUNTARY POOLING AGREEMENT
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THIS AGREEMENT is made effective as of the ___ day of , .
BETWEEN:
, of ;
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(hereinafter referred to as the "Undersigned")
OF THE FIRST PART
AND:
MONTREAL TRUST COMPANY OF CANADA, 2nd Floor, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
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X.X., X0X 0X0
(hereinafter referred to as the "Trustee")
OF THE SECOND PART
AND:
DATAWAVE SYSTEMS INC. (FORMERLY DATAWAVE VENDING INC.), a company
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incorporated under the laws of the Province of British Columbia, with a
registered and records office situate at Xxxxx 0000, 0000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxxx, X.X., X0X 0X0
(hereinafter referred to as the "Issuer")
OF THE THIRD PART
WHEREAS:
A. The Undersigned owns common shares of the Issuer as set out in
Schedule "A" hereto, all of which are subject to an escrow agreement dated for
reference November 16, 1993 (the "Escrow Agreement"), a copy of which is
attached hereto as Schedule "B";
B. The Undersigned authorizes and directs the Trustee to place % of the
shares released from escrow pursuant to the Escrow Agreement into pool according
to this Voluntary Pooling Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
in consideration of the sum of One Dollar ($1.00) now paid by the parties
hereto, each to the other (the receipt of which is hereby acknowledged), and in
further consideration of the mutual covenants and conditions hereinafter
contained, the parties hereto agree as follows:
1. The parties hereto hereby agree with each other and with the Trustee that
the Trustee will retain in pool certificates representing 50% of all shares
authorized for release from escrow to the Undersigned immediately upon
their release from escrow pursuant to the Escrow Agreement (the "Shares").
2. The Shares which will be retained in pool shall be held by the Trustee and
released from the terms of this Agreement to the Undersigned on the
following basis:
(a) 33 1/3% of the Shares placed in pool will be released one year from
the date of the initial release of the Shares from the terms of the
Escrow Agreement (the "Initial Release Date");
(b) a further 33 1/3% of the Shares placed into pool will be released two
years from the Initial Release Date (the "Second Release Date"); and
(c) a further 33 1/3% of the Shares placed into pool will be release three
years from the Initial Release Date (the "Third Release Date").
In the event any of the release dates indicated above falls on a day other
than a business day, then the release date will, in each such case, be
deemed to be the next business day following such date.
3. The Undersigned shall be entitled from time to time to a letter or receipt
from the Trustee stating the number of Shares represented by certificates
held for him by the Trustee subject to the terms of this Agreement, but
such letter or receipt shall not be assignable.
4. With regard to the Shares not yet released from pool, the Undersigned shall
not sell, deal in, assign, transfer in any manner whatsoever or agree to
sell, deal in, assign or transfer in any manner whatsoever any of the
Shares or beneficial ownership of or any interest in them and the Trustee
shall not accept or acknowledge any transfer, assignment, declaration of
trust or any other document evidencing a change in legal and beneficial
ownership of or interest in such Shares, except as may be required by
reason of the death or bankruptcy of the Undersigned, in which case the
Trustee shall hold the certificates for such Shares subject to this
Agreement for whatever person or persons, firm or corporation that may thus
become legally entitled thereto, subject to compliance with the terms of
the Escrow Agreement.
5. If the Undersigned ceases to be employed by the Issuer or any of its
subsidiaries (for any reason whatsoever other than death), prior to the
Third Release Date, the Undersigned shall not be entitled to any Shares
still held in pool at that time pursuant to section two hereof. The
Undersigned agrees that in such event he shall execute and deliver within
10 days of ceasing to be employed by the Issuer or any of its subsidiaries,
any and all documentation requested by the Issuer to enable the Issuer to
transfer the Shares held in
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pool to or to the order of the Issuer including, but not limited to, a
stock power of attorney form. The Undersigned agrees that he shall not be
entitled to receive any compensation for the Shares so transferred.
6. If, during the period in which any of the Shares are retained in pool
pursuant hereto, any dividend other than a dividend paid in shares of the
Issuer, is received by the Trustee in respect of such Shares, such dividend
shall be paid or transferred forthwith to the Undersigned entitled thereto.
Any shares received by way of dividend in respect of such Shares shall be
dealt with as if they were shares hereunder.
7. The Issuer and the Undersigned jointly and severally release, indemnify and
save harmless the Trustee from all costs, charges, claims, demands,
damages, losses and expenses resulting from the Trustee's compliance in
good faith with this Agreement:
(a) if the Trustee wishes to resign as trustee in respect of the Shares,
the Trustee will give notice to the Issuer;
(b) if the Issuer wishes the Trustee to resign as trustee in respect of
the Shares, the Issuer will given notice to the Trustee;
(c) any notice referred to in subsection (a) or (b) shall be in writing
and delivered to:
(i) the Issuer at 000 Xxxx 0xx Xxxxxx, Xxxxxxxxx, X.X., X0X 0X0;
and
(ii) the Trustee at 0xx Xxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
X.X., X0X 0X0;
and the notice shall be deemed to have been received on the date of
actual delivery. The Issuer or the Trustee may change its address for
notice by giving notice to the other party in accordance with this
subsection;
(d) the resignation of the Trustee shall be effective and the Trustee
shall cease to be bound by this Agreement on the date which is 90 days
after the date of receipt by the Issuer of the notice referred to in
subsection (a) or (b) or on such date as the Trustee and the Issuer
may agree upon in writing (the "Resignation Date");
(e) the Issuer, before the Resignation Date, shall appoint another trustee
and that appointment will be binding upon the Issuer and the
Undersigned.
8. The Trustee hereby accepts the trusts hereunder and agrees to carry out and
discharge the same in accordance with the terms hereof unless and until
discharged therefrom by termination of this Agreement or in some other
lawful way.
9. 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.
10. This Agreement shall extend to and enure to the benefit of, and shall be
binding upon, the parties hereto, their respective heirs, executors,
administrators, successors and permitted assigns.
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11. This Agreement may be executed in several counterparts, each of which when
so executed shall be deemed to be an original, and such counterparts
together shall constitute one and the same instrument. Any and all such
counterparts shall, notwithstanding the actual date of execution, be deemed
to be dated the day and year written at the top of page one hereof.
12. All schedules attached to this Agreement are incorporated herein and form a
part hereof.
IN WITNESS WHEREOF the parties hereto have executed these presents the day and
year first above written.
SIGNED, SEALED AND DELIVERED )
by in the presence of: )
)
)
___________________________________ )
Witness )
)
)
)
___________________________________ ) __________________________________
Address )
)
)
___________________________________ )
Occupation )
)
THE COMMON SEAL of MONTREAL )
TRUST COMPANY OF CANADA was )
hereunto affixed in the presence of: )
)
) c/s
___________________________________ ) ---
Authorized Signatory )
)
)
___________________________________ )
Authorized Signatory )
)
THE COMMON SEAL of DATAWAVE )
SYSTEMS INC. was hereunto affixed in )
the presence of: )
)
) c/s
___________________________________ ) ---
Authorized Signatory )
)
)
___________________________________ )
Authorized Signatory )
)
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