ESCROW AGREEMENT
THIS AGREEMENT made in triplicate this 1st day of April, 1997
AMONG:
POSITION INC.
(herein called the "Issuer")
OF THE FIRST PART
-and-
THE R-M TRUST COMPANY
(herein called the "Trustee")
OF THE SECOND PART
-and-
XXXX X. XXXXXXXXX, XXXXX X. XXXXX,
CHIP HOME PRODUCTS LIMITED,
CORPORATE RECOVERY MANAGEMENT LTD.,
JFM GEOMATICS LTD. AND NCS INTERNATIONAL INC.
(herein called the "Security Holders")
OF THE THIRD PART
WHEREAS in furtherance of complying with the requirements of the Securities
Act, and Alberta Securities Commission Policy 4.9, the Security Holders are
desirous of depositing in escrow certain securities in the Issuer owned to
the be received by them;
AND WHEREAS the Trustee 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 ($1.00) DOLLAR paid by the parties to each other, receipt of this sum being
acknowledged by each of the parties, the Security Holders jointly and
severally covenant and agree with the Issuer and with the Trustee and the
Issuer and the Trustee covenant and agree with the other and with the
Security Holders jointly and severally as follows:
1. Each of the Security Holders hereby places and deposits in escrow with
the Trustee those of his securities to the Issuer which are represented by the
certificates described in Schedule "A" attached to this agreement and the
Trustee hereby acknowledges receipt of those certificates. The Security
Holders agree to deliver promptly to the Trustee any replacement securities
or certificates if and when issued or allotted for deposit in escrow.
2. The Parties agree that, subject to the provisions of paragraph 6
herein, the securities and the beneficial ownership of or any interest in
them and the certificate representing them (including any replacement
securities or certificates) shall not be sold, assigned, hypothecated,
alienated, released from escrow, transferred within escrow, or otherwise in
any manner dealt with, without written consent of the Executive Director of
the Alberta Securities Commission (hereinafter referred to as the "Executive
Director") given to the Trustee or except as may be required by reason of the
death or bankruptcy of any Security Holder, in which cases the Trustee shall
hold the said certificates subject to this agreement, for whatever person or
company shall be legally entitled to become the registered owner thereof and
shall provide to the Executive Director written notice of the new registered
owner , but the securities shall remain in escrow, subject to this agreement.
3. The Security Holders direct the Trustee to retain their respective
securities and the certificates (including any replacement securities or
certificates) representing them and not to do or cause anything to be done to
release them from escrow or to allow any transfer, hypothecation or alienation
there of except as provided in paragraph 6, without the written consent of the
Executive Director. The Trustee accepts the responsibilities placed on it by
the agreement and agrees to perform them in accordance with the terms of this
agreement and the written consents, orders or directions of the Executive
Director.
4. If during the period in which any of the securities are retained in
escrow pursuant hereto, any dividend is received by the Trustee in respect of
the escrowed securities, any such dividend shall be promptly paid or
transferred to the respective Security Holders entitled thereto.
5. All voting rights attached to the escrowed securities shall at all
times be exercised by the respective registered owners thereof.
6. The escrowed securities governed by this agreement shall be
automatically released as follows:
(a) 10% of the escrowed securities immediately after nine months following
the date of the receipt for the Issuer's prospectus assuring its initial public
offering (the "Initial Release"); and
(b) 30% of the escrowed securities after each of the first, second and
third anniversaries of the Initial Release.
7. The Security Holders hereby jointly and severally agree to and do
hereby release and indemnify and save harmless the Trustee from and against
all claims, suits, demands, costs, damages and expenses which may be
occasioned by reason of the trustee's compliance in good faith with the terms
hereof.
8. The Issuer hereby acknowledges the terms and conditions of this
agreement and agrees to take all reasonable steps to facilitate its
performance and to pay the Trustee's proper charges for its services as
trustee of this escrow.
9. If the Trustee should wish to resign, it shall give at least three
months' notice to the Issuer which may, with the written consent of the
Executive Director, by writing appoint another Trustee in its place and such
appointment shall be binding on the Security Holders and the new Trustee
shall assume and be bound by the obligations of the Trustee hereunder.
10. Where required, the written consent of the Executive Director as to a
release from escrow of all or part of the escrowed securities shall terminate
this agreement only in respect to those securities so released. For greater
certainty this paragraph does not apply to securities transferred within
escrow.
11. This agreement may be executed in several parts in the same form and
the parts as so executed shall together form one original agreement, and the
parts if more than one shall be read together and constructed as if all the
signing parties hereto had executed one copy of this agreement.
12. 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.
13. This agreement may be amended upon agreement of the Security Holders,
the Trustee and the Issuer and upon the written consent having been obtained
from the Executive Director.
14. 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 assigns.
15. Signatures received by facsimile are an acceptable form of execution
of this agreement.
IN WITNESS WHEREOF the Issuer and Trustee have caused their respective
corporate seals to be hereto affixed and the Security Holders have hereto set
their respective hands and seals.
POSITION INC.
Per:
Xxxx X. Xxxxxxxxx
President
Per:
Xxxxxxx X. Xxxxxxxxx
(c/s)
Vice President Business Development
THE R-M TRUST COMPANY
Per:
Per:
(c/s)
SIGNED, SEALED AND DELIVERED by the respective Security Holders whose names
are subscribed in the right-hand column below in the presence of the
respective persons whose names are subscribed in the left-hand column.
WITNESSES SECURITY HOLDERS
Witness to the signature of Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
Witness to the signature of Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
CHIP HOME PRODUCTS LIMITED
Per:
Per:
CORPORATE RECOVERY
MANAGEMENT LTD.
Per:
Per:
JFM GEOMATICS LTD.
Per:
Per:
NCS INTERNATIONAL INC.
Per:
Per:
SCHEDULE "A" to an Escrow Agreement dated April 1, 1997, and made among
POSITION INC. (therein called the "Issuer"), THE R-M TRUST COMPANY (therein
called the "TRUSTEE") and some security holders of the Issuer (therein called
the "Security Holders")
Name of registered Number of Certificate Numbers of Signature of
Security Holders Securities Escrowed Securities Escrowed Security Holder
__________________ ___________________ ______________________ _______________
Xxxx X Xxxxxxxxx 109,337 1
Xxxxx X. Xxxxx 657,117 8
Chip Home Products 308,500 2 Per:
Limited Per:
Corporate Recovery 308,500 4 Per:
Management Ltd.
JFM Geomatics Ltd. 547,206 3 Per:
Per:
NCS International
Inc. 465,012 72 Per:
Per:
