EXHIBIT 10.10
VOLUNTARY POOLING AGREEMENT
THIS VOLUNTARY POOLING AGREEMENT is made and dated for reference effective as of
the 17th day of August, 1999.
BETWEEN:
The Undersigned Shareholders of THE COMPANY (AS HEREAFTER DEFINED)
(collectively, the "Undersigned")
OF THE FIRST PART
AND:
STOCKTRANS, INC., a company incorporated under the laws of
the State of Pennsylvania and having and address for notice
and delivery at 00 X. Xxxxxxxxx Xxx., Xxxxxxx, XX, 00000.
(the "Escrow Agent")
OF THE SECOND PART
(the Undersigned and the Escrow Agent being hereinafter
collectively referred to as the "Parties").
WHEREAS:
A. In contemplation of the proposed involvement of the Undersigned in the
business of Hyperstealth Biotechnology Corporation or a successor corporation
(the "Company") and in order to encourage a more orderly distribution of the
outstanding common shares of the Company, the Undersigned are desirous of
placing all of the common shares of the Company (the "Shares") owned by them at
the time of acquisition of the Company, and estimated at 1,000,000 Shares each,
with the Escrow Agent, upon and subject to the terms and conditions more
particularly set out hereinbelow.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
consideration now provided by each of the Parties hereto, each to the other (the
receipt whereof is hereby acknowledged) and in further consideration of the
mutual covenants and conditions hereinafter contained, the Parties hereto agree
as follows:
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1. The Undersigned hereby severally agree each with the other and with the
Escrow Agent that they will respectively deliver or cause to be delivered to the
Escrow Agent certificates for their Shares in the Company as set out in Schedule
"A" to be held by the Escrow Agent and released, subject to as hereinafter
provided, on the following basis:
All Shares shall be released to the respective shareholders pro rata in
accordance with the advice of the Company's counsel, of which the Escrow Agent
can solely rely upon without recourse, in the following manner:
(a) 15% of the Shares on that date which is 15 months from the date that
the Company becomes a reporting issuer in the U.S. (the "First
Release");
(b) 15% of the Shares on that date which is 6 months after the First
Release;
(c) 15% of the Shares on that date which is 9 months after the First
Release;
(d) 15% of the Shares on that date which is 12 months after the First
Release;
(e) 15% of the Shares on that date which is 15 months after the First
Release;
(f) 15% of the Shares on that date which is 18 months after the First
Release; and
(g) 10% of the Shares on that date which is 21 months after the First
Release.
2. Each of the Undersigned hereby acknowledges that none of the Shares of the
Company delivered to the Escrow Agent pursuant to paragraph "1." were delivered
to the Escrow Agent in response to any terms imposed by any regulatory authority
having jurisdiction over the Company and that this Agreement has been entered
into on a strictly voluntary basis as set forth above.
3. Each of the Undersigned shall be entitled to a letter or receipt from the
Escrow Agent stating the number of Shares represented by certificates held for
such Undersigned by the Escrow Agent subject to the terms of this Agreement, but
such letter or receipt shall not be assignable.
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4. Except with the prior written consent of each and everyone of the Parties
hereto, 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 said Shares or beneficial ownership of or any interest in
them, and the Escrow Agent shall not accept or acknowledge any transfer,
assignment, declaration of trust or any other document evidencing a change in
legal or beneficial ownership or of interest in the said Shares, except as may
be required by reason of the death or bankruptcy of any one or more of the
Undersigned or pursuant to due legal process, subject to this Agreement for
whatsoever person or persons, firm or corporation who may thus become legally
entitled thereto.
5. This Agreement shall enure to the benefit of and be binding upon the
Parties hereto, their and each of their heirs, executors, administrators,
successors and permitted assigns.
6. This Agreement may be executed in several parts in the same form and such
part as so executed shall together constitute 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.
7. The Parties hereto agree that in consideration of the Escrow Agent agreeing
to act in accordance with the terms of this Agreement, the Company and the
Undersigned do hereby covenant and agree from time to time and at all times
hereafter well and truly to save, defend and keep harmless and fully indemnify
the Escrow Agent, its successors and assigns, and directors, officers, employees
and agents (the "Indemnified Parties") from and against all claims, suits,
demands, costs, damages and expenses and disbursements of every nature and kind,
including reasonable counsel fees, which may be brought against or suffered or
incurred by the Indemnified Parties in consequence of, arising out of, or in any
way related to this Agreement, as amended, modified or supplemented from time to
time. The Company shall undertake the investigation and defence of any
aforementioned claim, action or proceeding on behalf of the Undersigned and the
Escrow Agent, provided, however, that the Escrow Agent and the Undersigned shall
have the right to retain other counsel, at each of their own expense, to act on
each of their own behalf.
8. It is further agreed by and between the Parties hereto and without
restricting the foregoing indemnity, that in case proceedings should hereafter
be taken in any Court respecting the Shares hereby pooled, the Escrow Agent
shall not be obliged to defend any such action or submit its rights to the Court
until it shall have been indemnified by other good and sufficient security in
addition to the indemnity hereinbefore given against its costs of such
proceedings.
9. Any disputes between the Parties with respect to the terms of this
Agreement or respecting the Shares hereby pooled shall be dealt with in
accordance with the Commercial Arbitration Act (British Columbia).
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10. This Agreement shall supersede and replace any other agreement or
arrangement, whether oral or written, heretofore existing between the Parties in
respect of the subject matter of this Agreement.
11. This Agreement may be assigned by the Escrow Agent to another Escrow Agent
or transfer agent and registrar at any time without the prior consent of the
other Parties.
12. Any notice or notification to be given by one party to this Agreement to
the other party to this Agreement shall be in writing and delivered or sent, by
first class insured mail, or by facsimile transmission or any other form of
written recorded communication to the following address:
The Undersigned: x/x 0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
The Escrow Agent: 00 X. Xxxxxxxxx Xxx
Xxxxxxx, XX, 00000
or to such other address as the party to whom such notice or communication is to
be given shall have last designated to the party giving the same in the manner
specified in this paragraph 12.
13. The Undersigned shall pay the Escrow Agent for the above-mentioned services
and for all services rendered above and beyond those basic services required to
fulfill its obligations hereunder, in accordance with the existing tariff of
fees, which tariff is subject to revision from time to time on 30 days' written
notice, during the term of this Agreement and shall reimburse the Escrow Agent
for all costs and expenses including expert consultant and legal fees and
disbursements incurred for the carrying out of its duties hereunder.
14. This Agreement may be terminated by the Parties upon two months' notice, in
writing, being given to the other. Upon receipt of notice of the Escrow Agent's
intention to resign, the Parties shall, within ten calendar days, select a
replacement escrow agent and jointly advise the Escrow Agent in writing to
deliver the Shares to the replacement escrow agent. If the Parties fail to agree
on a replacement escrow agent within ten calendar days of such notice, the
replacement escrow agent shall be selected by a Judge of the Supreme Court of
the Province of British Columbia upon application by any Party hereto. The
Escrow Agent shall continue to be bound by this Agreement until the replacement
escrow agent has been selected and the Escrow Agent receives and complies with
the joint instructions of the Parties to deliver the Shares to the replacement
escrow
agent. The Parties agree to enter into a new pooling agreement substantially in
the same form of this Agreement with the replacement escrow agent.
15. This Agreement will be deemed to have been made and will be construed in
accordance with the laws of the Province of British Columbia and will be treated
in all respects as a British Columbia contract and the courts in British
Columbia will have exclusive jurisdiction over any disputes arising out of this
Agreement.
16. This Agreement may be executed in counterparts, and if so executed, all
such parts will be read as constituting one agreement in the same manner as if
all parties executing this Agreement in counterparts were signatories to one
copy of this Agreement.
IN WITNESS WHEREOF the Undersigned and the Escrow Agent have executed this
Agreement as and from the first day and year above written.
STOCKTRANS, INC.
per: /s/ [ILLEGIBLE]^^, Pres.
----------------------------
Authorized Signatory
THE UNDERSIGNED
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SIGNED, SEALED and DELIVERED by )
XXX XXXXXX in the presence of: )
)
________________________________)
Name/Signature of Witness )
)
________________________________) ________________________
Address ) XXX XXXXXX
)
________________________________)
)
)
________________________________)
Occupation )
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The Parties agree to enter into a new pooling agreement substantially in the
same form of this Agreement with the replacement escrow agent.
15. This Agreement will be deemed to have been made and will be construed in
accordance with the laws of the Province of British Columbia and will be treated
in all respects as a British Columbia contract and the courts in British
Columbia will have exclusive jurisdiction over any disputes arising out of this
Agreement.
16. This Agreement may be executed in counterparts, and if so executed, all
such parts will be read as constituting one agreement in the same manner as if
all parties executing this Agreement in counterparts were signatories to one
copy of this Agreement.
IN WITNESS WHEREOF the Undersigned and the Escrow Agent have executed this
Agreement as and from the first day and year above written.
STOCKTRANS, INC.
per: ___________________________
Authorized Signatory
THE UNDERSIGNED
---------------
SIGNED, SEALED and DELIVERED by )
XXX XXXXXX in the presence of: )
)
/s/ Xxxxxx Xxxxxx )
-----------------------------------)
Name/Signature of Witness )
)
0000 Xxxxxxxxxx Xxx ) /s/ Xxx Xxxxxx
-----------------------------------) ---------------------------
Address ) XXX XXXXXX
)
Port Coquitlam, B.C )
-----------------------------------)
)
Bookkeeper )
-----------------------------------)
Occupation )
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SIGNED, SEALED and DELIVERED by )
XXXX GEMMA in the presence of: )
)
/s/ [ILLEGIBLE]^^ )
-----------------------------------)
Name/Signature of Witness )
)
6457 Lougheed. ) /s/ Xxxx Gemma
-----------------------------------) ---------------------------
Address ) XXXX GEMMA
)
SBY )
-----------------------------------)
)
Contractor )
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Occupation )
SIGNED, SEALED and DELIVERED by )
XXXXXX XXXXXX in the presence of: )
)
___________________________________)
Name/Signature of Witness )
) /s/ Xxxxxx Xxxxxx
___________________________________) ---------------------------
Address ) XXXXXX XXXXXX
)
___________________________________)
)
)
___________________________________)
Occupation )
SIGNED, SEALED and DELIVERED by )
S.O. (XXX) TJELTA in the presence )
of: )
)
___________________________________)
Name/Signature of Witness )
of Witness )
) /s/ Xxx Xxxxxx
-----------------------------------) ---------------------------
Address ) S.O. (XXX) TJELTA
)
___________________________________)
Occupation )
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SIGNED, SEALED and DELIVERED by )
XXXX GEMMA in the presence of: )
)
)
___________________________________)
Name/Signature of Witness )
)
___________________________________) ___________________________
Address ) XXXX GEMMA
)
___________________________________)
)
)
___________________________________)
Occupation )
SIGNED, SEALED and DELIVERED by )
XXXXXX XXXXXX in the presence of: )
)
/s/ [ILLEGIBLE]^^ )
-----------------------------------)
Name/Signature of Witness )
) /s/ Xxxxxx Xxxxxx
2300 - 1066 WHASTINGS ) ---------------------------
-----------------------------------) XXXXXX XXXXXX
Address )
)
XXX, XX, X0X 0X0 )
-----------------------------------)
)
RECEPTIONIST )
-----------------------------------)
Occupation )
SIGNED, SEALED and DELIVERED by )
S.O. (XXX) TJELTA in the presence )
of: )
)
/s/ [ILLEGIBLE]^^ )
-----------------------------------)
Name/Signature of Witness )
) /s/ Xxx Xxxxxx
2300 - 1066 WHASTINGS ) ---------------------------
-----------------------------------) S.O. (XXX) TJELTA
Address )
)
XXX, XX, X0X 0X0 )
-----------------------------------)
)
RECEPTIONIST )
-----------------------------------)
Occupation )
