Exhibit 10.17
GRYPHON GOLD CORPORATION
- AND -
THOSE SECURITYHOLDERS LISTED ON SCHEDULE "A" HERETO
- AND -
COMPUTERSHARE INVESTOR SERVICES INC.
--------------------------------------------------------------------------------
ESCROW AGREEMENT
o, 2005
--------------------------------------------------------------------------------
ESCROW AGREEMENT
This Agreement is being entered into among Gryphon Gold Corporation (the
"ISSUER"), each of the undersigned securityholders of the Issuer (each, a
"SECURITYHOLDER" and collectively, the "SECURITYHOLDERS") and Computershare
Investor Services Inc. (the "ESCROW AGENT") under National Policy 46-201 --
Escrow for Initial Public Offerings (the "POLICY") in connection with the
proposed distribution (the "IPO"), by the Issuer, an established issuer, of
units of the Issuer ("UNITS") by prospectus. Each Unit consists of one common
share in the capital of the Issuer (the "COMMON SHARES") and one-half of one
non-transferable class A warrant of the Issuer (the "CLASS A WARRANTS"), each
whole Class A Warrant being exercisable to acquire one Common Share.
For good and valuable consideration, the parties agree as follows:
ARTICLE 1
ESCROW
SECTION 1.1 APPOINTMENT OF ESCROW AGENT
The Issuer and the Securityholders appoint the Escrow Agent to act as
escrow agent under this Agreement. The Escrow Agent accepts the appointment.
SECTION 1.2 DEPOSIT OF ESCROW SECURITIES IN ESCROW
(1) The Securityholders are depositing the securities (the "ESCROW
SECURITIES") listed opposite their names in Schedule "A" attached hereto with
the Escrow Agent to be held in escrow under this Agreement. Each Securityholder
shall immediately deliver or cause to be delivered to the Escrow Agent any share
certificates or other evidence of the Escrow Securities which the Securityholder
has or which the Securityholder may later receive.
(2) If a Securityholder receives any other securities (the "ADDITIONAL
ESCROW SECURITIES"):
(a) as a dividend or other distribution on Escrow Securities;
(b) on the exercise of a right of purchase, conversion or exchange
attaching to Escrow Securities, including securities received
on conversion of special warrants;
(c) on a subdivision, or compulsory or automatic conversion or
exchange of Escrow Securities; or
(d) from a successor issuer in a business combination, if Article
5 of this Agreement applies,
the Securityholder shall deposit them in escrow with the Escrow Agent.
The Securityholder shall deliver or cause to be delivered to the Escrow
Agent any share certificates or other evidence of those Additional
Escrow Securities. When this Agreement refers to Escrow Securities, it
includes Additional Escrow Securities.
- 2 -
(3) Securityholders will immediately deliver to the Escrow Agent any
replacement share certificates or other evidence of Additional Escrow Securities
issued to them.
SECTION 1.3 DIRECTION TO ESCROW AGENT
The Issuer and the Securityholders direct the Escrow Agent to hold the
Escrow Securities in escrow until they are released from escrow under this
Agreement.
ARTICLE 2
RELEASE OF ESCROW SECURITIES
SECTION 2.1 RELEASE SCHEDULE
(1) The Escrow Securities shall be released as follows:
--------------------------------------------------------------------------------
On o, 2005, on the date upon which 1/4 of each Securityholder's
the Issuer's securities are listed Escrowed Securities
on the TSX (the "LISTING DATE")
--------------------------------------------------------------------------------
6 months after the Listing Date 1/3 of each Securityholder's remaining
Escrow
--------------------------------------------------------------------------------
12 months after the Listing Date 1/2 of each Securityholder's remaining
Escrow
--------------------------------------------------------------------------------
18 months after the Listing Date The remaining Escrow Securities of
each Securityholder
--------------------------------------------------------------------------------
(2) If a Securityholder acquires Additional Escrow Securities, those
securities will be added to the securities already in escrow, to increase the
number of the Securityholder's remaining Escrow Securities. After that, all of
the Securityholder's Escrow Securities will be released in accordance with the
applicable release schedule in the table above.
SECTION 2.2 DELIVERY OF SHARE CERTIFICATES FOR ESCROW SECURITIES
The Escrow Agent shall send to each Securityholder any share
certificates or other evidence of that Securityholder's Escrow Securities in the
possession of the Escrow Agent released from escrow as soon as reasonably
practicable after the release.
SECTION 2.3 REPLACEMENT CERTIFICATES
If, on the date a Securityholder's Escrow Securities are to be
released, the Escrow Agent holds a share certificate or other evidence
representing more Escrow Securities than are to be released, the Escrow Agent
will deliver the share certificate or other evidence to the Issuer or its
transfer agent and request replacement share certificates or other evidence. The
Issuer will cause replacement share certificates or other evidence to be
prepared and delivered to the Escrow Agent. After the Escrow Agent receives the
replacement share certificates or other evidence, the Escrow Agent will send to
the Securityholder or at the Securityholder's direction, the replacement share
certificate or other evidence of the Escrow
- 3 -
Securities released. The Escrow Agent and the Issuer shall act as soon as
reasonably practicable.
SECTION 2.4 RELEASE UPON DEATH
(1) If a Securityholder dies, the Securityholder's Escrow Securities will
be released from escrow. The Escrow Agent will deliver any share certificates or
other evidence of the Escrow Securities in the possession of the Escrow Agent to
the Securityholder's legal representative
(2) Prior to delivery the Escrow Agent must receive:
(a) a certified copy of the death certificate; and
(b) any evidence of the legal representative's status that the
Escrow Agent may reasonably require.
ARTICLE 3
DEALING WITH ESCROW SECURITIES
SECTION 3.1 RESTRICTION ON TRANSFER ETC.
Unless it is expressly permitted in this Agreement, Securityholders
shall not sell, transfer, assign, mortgage, enter into a derivative transaction
concerning, or otherwise deal in any way with their Escrow Securities or any
related share certificates or other evidence of the Escrow Securities. If a
Securityholder is a private company controlled by one or more principals (as
that term is defined in section 3.5 of the Policy) of the Issuer, the
Securityholder may not participate in a transaction that results in a change of
its control or a change in the economic exposure of the principals to the risks
of holding Escrow Securities.
SECTION 3.2 PLEDGE, MORTGAGE OR CHARGE AS COLLATERAL FOR A LOAN
Securityholders may pledge, mortgage or charge their Escrow Securities
to a financial institution as collateral for a loan, provided that no Escrow
Securities or any share certificates or other evidence of Escrow Securities will
be transferred or delivered by the Escrow Agent to the financial institution for
this purpose. The loan agreement must provide that the Escrow Securities will
remain in escrow if the lender realizes on the Escrow Securities to satisfy the
loan.
SECTION 3.3 VOTING OF ESCROW SECURITIES
Securityholders may exercise any voting rights attached to their Escrow
Securities.
SECTION 3.4 DIVIDENDS ON ESCROW SECURITIES
Securityholders may receive a dividend or other distribution on their
Escrow Securities, and elect the manner of payment from the standard options
offered by the Issuer. If the Escrow Agent receives a dividend or other
distribution on a Securityholder's Escrow Securities, other than Additional
Escrow Securities, the Escrow Agent will pay the dividend or other distribution
to the Securityholder on receipt.
- 4 -
SECTION 3.5 EXERCISE OF OTHER RIGHTS ATTACHING TO ESCROW SECURITIES
Securityholders may exercise their rights to exchange or convert their
Escrow Securities in accordance with this Agreement.
ARTICLE 4
PERMITTED TRANSFERS WITHIN ESCROW
SECTION 4.1 TRANSFER TO DIRECTORS AND SENIOR OFFICERS
(1) A Securityholder may transfer Escrow Securities within escrow to
existing or, upon their appointment, incoming directors or senior officers of
the Issuer or any of its material operating subsidiaries, if the Issuer's board
of directors has approved the transfer.
(2) Prior to the transfer the Escrow Agent must receive:
(a) a certified copy of the resolution of the board of directors
of the Issuer approving the transfer;
(b) a certificate signed by a director or officer of the Issuer
authorized to sign, stating that the transfer is to a director
or senior officer of the Issuer or a material operating
subsidiary and that any required approval from the TSX has
been received;
(c) an acknowledgment in the form of Schedule "B" attached hereto
signed by the transferee;
(d) copies of the letters sent to the securities regulators
described in subsection (3) accompanying the acknowledgement;
and
(e) a transfer power of attorney, completed and executed by the
transferor in accordance with the requirements of the Issuer's
transfer agent.
(3) At least 10 days prior to the transfer, the Issuer will file a copy of
the acknowledgement with the securities regulators in the jurisdictions in which
the Issuer will be a reporting issuer (the "JURISDICTIONS").
SECTION 4.2 TRANSFER TO OTHER PRINCIPALS
(1) A Securityholder may transfer Escrow Securities within escrow:
(a) to a person or company that before the proposed transfer holds
more than 20% of the voting rights attached to the Issuer's
outstanding securities; or
(b) to a person or company that after the proposed transfer (i)
will hold more than 10% of the voting rights attached to the
Issuer's outstanding securities, and (ii) has the right to
elect or appoint one or more directors or senior officers of
the Issuer or any of its material operating Subsidiaries.
(2) Prior to the transfer the Escrow Agent must receive:
- 5 -
(a) a certificate signed by a director or officer of the Issuer
authorized to sign stating that (i) the transfer is to a
person or company that the officer believes, after reasonable
investigation, holds more than 20% of the voting rights
attached to the Issuer's outstanding securities before the
proposed transfer, or (ii) the transfer is to a person or
company that (A) the officer believes, after reasonable
investigation, will hold more than 10% of the voting rights
attached to the Issuer's outstanding securities, and (B) has
the right to elect or appoint one or more directors or senior
officers of the Issuer or any of its material operating
subsidiaries after the proposed transfer, and any required
approval from the TSX has been received;
(b) an acknowledgment in the form of Schedule "B" attached hereto
signed by the transferee;
(c) copies of the letters sent to the securities regulators in the
Jurisdictions accompanying the acknowledgement; and
(d) a transfer power of attorney, executed by the transferor in
accordance with the requirements of the Issuer's transfer
agent.
(3) At least 10 days prior to the transfer, the Issuer will file a copy of
the acknowledgement with the securities regulators in the Jurisdictions.
SECTION 4.3 TRANSFER UPON BANKRUPTCY OF SECURITYHOLDER
(1) A Securityholder may transfer Escrow Securities within escrow to a
trustee in bankruptcy or another person or company entitled to Escrow Securities
on bankruptcy.
(2) Prior to the transfer, the Escrow Agent must receive:
(a) a certified copy of either (i) the assignment in bankruptcy
filed with the Superintendent of Bankruptcy, or (ii) the
receiving order adjudging the Securityholder bankrupt;
(b) a certified copy of a certificate of appointment of the
trustee in bankruptcy;
(c) a transfer power of attorney, completed and executed by the
transferor in accordance with the requirements of the Issuer's
transfer agent; and
(d) an acknowledgment in the form of Schedule "B" attached hereto
signed by (i) the trustee in bankruptcy, or (ii) on direction
from the trustee, with evidence of that direction attached to
the acknowledgment form, another person or company legally
entitled to the Escrow Securities.
(3) Within 10 days after the transfer, the transferee of the Escrow
Securities will file a copy of the acknowledgment with the securities regulators
in the Jurisdictions.
- 6 -
SECTION 4.4 TRANSFER UPON REALIZATION OF PLEDGED, MORTGAGED OR CHARGED
ESCROW SECURITIES
(1) Securities the Securityholder has pledged, mortgaged or charged under
section 3.2 to that financial institution as collateral for a loan on
realization of the loan.
(2) Prior to the transfer the Escrow Agent must receive:
(a) a statutory declaration of an officer of the financial
institution that the financial institution is legally entitled
to the Escrow Securities;
(b) a transfer power of attorney, executed by the transferor in
accordance with the requirements of the Issuer's transfer
agent; and
(c) an acknowledgement in the form of Schedule "B" attached hereto
signed by the financial institution.
(3) Within 10 days after the transfer, the transferee of the Escrow
Securities will file a copy of the acknowledgment with the securities regulators
in the Jurisdictions.
SECTION 4.5 TRANSFER TO CERTAIN PLANS AND FUNDS
(1) A Securityholder may transfer Escrow Securities within escrow to or
between a registered retirement savings plan ("RRSP"), registered retirement
income fund ("RRIF") or other similar registered plans or funds with trustees,
where the annuitants of the RRSP or RRIF, or the beneficiaries of the other
registered plans or funds are limited to the Securityholder and their spouse,
children and parents, or, if the Securityholder is the trustees of such a
registered plans or funds, to the annuitants of the RRSP or RRIF, or
beneficiaries of the other registered plan or fund, as applicable, or their
spouses, children and parents.
(2) Prior to the transfer the Escrow Agent must receive:
(a) evidence from the trustee of the transferee plan or fund, or
the trustee's agent, stating that, to the best of the
trustee's knowledge, the annuitant of the RRSP or RRIF, or the
beneficiaries of the other registered plan or fund do not
include any person or company other than the Securityholder
and their spouse, children and parents;
(b) a transfer power of attorney, executed by the transferor in
accordance with the requirements of the Issuer's transfer
agent; and
(c) an acknowledgement in the form of Schedule "B" attached hereto
signed by the trustee of the plans or funds.
(3) Within 10 days after the transfer, the transferee of the Escrow
Securities shall file a copy of the acknowledgment with the securities
regulators in the Jurisdictions.
SECTION 4.6 EFFECT OF TRANSFER WITHIN ESCROW
After the transfer of Escrow Securities within escrow, the Escrow
Securities will remain in escrow and released from escrow under this Agreement
as if no transfer has occurred on the same terms that applied before the
transfer. The Escrow Agent shall not
- 7 -
deliver any share certificates or other evidence of the Escrow Securities to
transferees under this Article 4.
ARTICLE 5
BUSINESS COMBINATIONS
SECTION 5.1 BUSINESS COMBINATIONS
This Article applies to the following (the "BUSINESS COMBINATIONS"):
(a) a formal take-over bid for all outstanding equity securities
of the Issuer or which, if successful, would result in a
change of control of the Issuer;
(b) a formal issuer bid for all outstanding equity securities of
the Issuer;
(c) a statutory arrangement;
(d) an amalgamation;
(e) a merger; or
(f) a reorganization that has an effect similar to an amalgamation
or merger.
SECTION 5.2 DELIVERY TO ESCROW AGENT
A Securityholder may tender their Escrow Securities to a person or
company in a Business Combination. At least five business days prior to the date
the Escrow Securities must be tendered under the Business Combination, the
Securityholder must deliver to the Escrow Agent:
(a) a written direction signed by the Securityholder that directs
the Escrow Agent to deliver to the depositary under the
Business Combination any share certificates or other evidence
of the Securityholder's Escrow Securities and a completed and
executed cover letter or similar document and, where required,
transfer power of attorney completed and executed for transfer
in accordance with the requirements of the depositary, and any
other documentation specified or provided by the
Securityholder and required to be delivered to the depositary
under the Business Combination; and
(b) any other information concerning the Business Combination as
the Escrow Agent may reasonably request.
SECTION 5.3 DELIVERY TO DEPOSITARY
As soon as reasonably practicable, and in any event no later than three
business days after the Escrow Agent receives the documents and information
required under section 5.2, the Escrow Agent shall deliver to the depositary, in
accordance with the direction, any share certificates or other evidence of the
Securityholder's Escrow Securities, and a letter addressed to the depositary
that:
(a) identifies the Escrow Securities that are being tendered;
- 8 -
(b) states that the Escrow Securities are held in escrow;
(c) states that the Escrow Securities are delivered only for the
purposes of the Business Combination and that they will be
released from escrow only after the Escrow Agent receives the
information described in section 5.4;
(d) if any share certificates or other evidence of the Escrow
Securities have been delivered to the depositary, requires the
depositary to return to the Escrow Agent, as soon as
practicable, any share certificates or other evidence of
Escrow Securities that are not released from escrow into the
Business Combination; and
(e) where applicable, requires the depositary to deliver or cause
to be delivered to the Escrow Agent, as soon as practicable,
any share certificates or other evidence of additional Escrow
Securities that the Securityholder acquires under the Business
Combination.
SECTION 5.4 RELEASE OF ESCROW SECURITIES TO DEPOSITARY
The Escrow Agent will release from escrow the tendered Escrow
Securities when the Escrow Agent receives a declaration signed by the depositary
or, if the direction identifies the depositary as acting on behalf of another
person or company in respect of the Business Combination, by that other person
or company, that:
(a) the terms and conditions of the Business Combination have been
met or waived; and
(b) the Escrow Securities have either been taken up and paid for
or are subject to an unconditional obligation to be taken up
and paid for under the Business Combination.
SECTION 5.5 ESCROW OF NEW SECURITIES
If a Securityholder receives securities (the "NEW SECURITIES") of
another issuer (the "SUCCESSOR ISSUER") in exchange for their Escrow Securities,
the New Securities will be subject to escrow in substitution for the tendered
Escrow Securities if, immediately after completion of the Business Combination:
(a) the Successor Issuer is not an exempt issuer (as defined in
section 3.2 of the Policy);
(b) the Securityholder is a principal (as defined in section 3.5
of the Policy) of the Successor Issuer; and
(c) the Securityholder holds more than 1% of the voting rights
attached to the Successor Issuer's outstanding securities. (In
calculating this percentage, include securities that may be
issued to the Securityholder under outstanding convertible
securities in both the number for the Securityholder's
securities and the total number of securities outstanding).
- 9 -
SECTION 5.6 RELEASE FROM ESCROW OF NEW SECURITIES
(1) As soon as reasonably practicable after the Escrow Agent receives a
certificate from the Successor Issuer signed by a director or officer of the
Successor Issuer authorized to sign
(a) stating that it is a Successor Issuer to the Issuer as a
result of a Business Combination and whether it is an emerging
issuer or an established issuer under the Policy, and
(b) listing the Securityholders whose New Securities are subject
to escrow under section 5.5,
the Escrow Securities of the Securityholders whose New Securities are
not subject to escrow under section 5.5 will be released, and the
Escrow Agent will send any share certificates or other evidence of the
Escrow Securities in the possession of the Escrow Agent in accordance
with section 2.3.
(2) If a Securityholder's New Securities are subject to escrow the Escrow
Agent will hold their New Securities in escrow on the same terms and conditions,
including release dates, as applied to the Escrow Securities that they
exchanged.
ARTICLE 6
RESIGNATION OF ESCROW AGENT
SECTION 6.1 RESIGNATION OF ESCROW AGENT
(1) If the Escrow Agent wishes to resign as escrow agent, the Escrow Agent
will give 30 days' written notice to the Issuer.
(2) If the Issuer wishes to terminate the Escrow Agent as escrow agent, the
Issuer will give 30 days' written notice to the Escrow Agent.
(3) If the Escrow Agent resigns or is terminated, the Issuer will be
responsible for ensuring that the Escrow Agent is replaced not later than the
resignation or termination date by another escrow agent that is acceptable to
the securities regulators having jurisdiction in the matter and that has
accepted such appointment, which appointment will be binding on the Issuer and
the Securityholders.
(4) The resignation or termination of the Escrow Agent will be effective,
and the Escrow Agent will cease to be bound by this Agreement, on the date that
is 60 days after the date of receipt of the notices referred to above by the
Escrow Agent or Issuer, as applicable, or on such other date as the Escrow Agent
and the Issuer may agree upon (the "RESIGNATION OR TERMINATION DATE"), provided
that the Resignation or Termination Date will not be less than 10 business days
before a release date.
(5) If the Issuer has not appointed a successor escrow agent within 60 days
of the Resignation or Termination Date, the Escrow Agent will apply, at the
Issuer's expense, to a court of competent jurisdiction for the appointment of a
successor escrow agent, and the duties and responsibilities of the Escrow Agent
will cease immediately upon such appointment.
- 10 -
(6) On any new appointment under this section, the successor escrow agent
will be vested with the same powers, rights, duties and obligations as if it had
been originally named herein as escrow agent, without any further assurance,
conveyance, act or deed. The predecessor escrow agent, upon receipt of payment
for any outstanding account for its services and expenses then unpaid, will
transfer, deliver and pay over to the successor escrow agent, who will be
entitled to receive, all securities, records or other property on deposit with
the predecessor escrow agent in relation to this Agreement and the predecessor
escrow agent will thereupon be discharged as escrow agent.
(7) If any changes are made to Article 6 of this Agreement as a result of
the appointment of the successor Escrow Agent, those changes must not be
inconsistent with the Policy and the terms of this Agreement and the Issuer to
this Agreement will file a copy of the new Agreement with the securities
regulators with jurisdiction over this Agreement and the Escrowed Securities.
ARTICLE 7
OTHER CONTRACTUAL ARRANGEMENTS
SECTION 7.1 ESCROW AGENT NOT A TRUSTEE
The Escrow Agent accepts duties and responsibilities under this
Agreement, and the Escrow Securities and any share certificates or other
evidence of the Escrow Securities, solely as a custodian, bailee and agent. No
trust is intended to be, or is or will be, created hereby and the Escrow Agent
shall owe no duties hereunder as a trustee.
SECTION 7.2 ESCROW AGENT NOT RESPONSIBLE FOR GENUINENESS
The Escrow Agent will not be responsible or liable in any manner
whatever for the sufficiency, correctness, genuineness or validity of any Escrow
Security deposited with it.
SECTION 7.3 ESCROW AGENT NOT RESPONSIBLE FOR FURNISHED INFORMATION
The Escrow Agent will have no responsibility for seeking, obtaining,
compiling, preparing or determining the accuracy of any information or document,
including the representative capacity in which a party purports to act, that the
Escrow Agent receives as a condition to a release from escrow or a transfer of
Escrow Securities within escrow under this Agreement.
SECTION 7.4 ESCROW AGENT NOT RESPONSIBLE AFTER RELEASE
The Escrow Agent will have no responsibility for Escrow Securities that
it has released to a Securityholder or at a Securityholder's direction according
to this Agreement.
SECTION 7.5 INDEMNIFICATION OF ESCROW AGENT
The Issuer and each Securityholder hereby jointly and severally agree
to indemnify and hold harmless the Escrow Agent, its affiliates, and their
current and former directors, officers, employees and agents from and against
any and all claims, demands, losses, penalties, costs, expenses, fees and
liabilities, including, without limitation, legal fees and expenses, directly or
indirectly arising out of, in connection with, or in respect of, this Agreement,
except where same result directly and principally from gross negligence, willful
misconduct or bad faith on the part of the Escrow Agent. This indemnity survives
the release
- 11 -
of the Escrow Securities, the resignation or termination of the Escrow Agent and
the termination of this Agreement.
SECTION 7.6 ADDITIONAL PROVISIONS
(1) The Escrow Agent will be protected in acting and relying reasonably
upon any notice, direction, instruction, order, certificate, confirmation,
request, waiver, consent, receipt, statutory declaration or other paper or
document (collectively referred to as "DOCUMENTS") furnished to it and
purportedly signed by any officer or person required to or entitled to execute
and deliver to the Escrow Agent any such Document in connection with this
Agreement, not only as to its due execution and the validity and effectiveness
of its provisions, but also as to the truth or accuracy of any information
therein contained, which it in good faith believes to be genuine.
(2) The Escrow Agent will not be bound by any notice of a claim or demand
with respect thereto, or any waiver, modification, amendment, termination or
rescission of this Agreement unless received by it in writing, and signed by the
other Parties and approved by the Exchange, and, if the duties or
indemnification of the Escrow Agent in this Agreement are affected, unless it
has given its prior written consent.
(3) The Escrow Agent may consult with or retain such legal counsel and
advisors as it may reasonably require for the purpose of discharging its duties
or determining its rights under this Agreement and may rely and act upon the
advice of such counsel or advisor. The Escrow Agent will give written notice to
the Issuer as soon as practicable that it has retained legal counsel or other
advisors. The Issuer will pay or reimburse the Escrow Agent for any reasonable
fees, expenses and disbursements of such counsel or advisors.
(4) In the event of any disagreement arising under the terms of this
Agreement, the Escrow Agent will be entitled, at its option, to refuse to comply
with any and all demands whatsoever until the dispute is settled either by a
written agreement among the Parties or by a court of competent jurisdiction.
(5) The Escrow Agent will have no duties or responsibilities except as
expressly provided in this Agreement and as provided under this Policy, and will
have no duty or responsibility arising under any other agreement, including any
agreement referred to in this Agreement, to which the Escrow Agent is not a
party.
(6) The Escrow Agent will have the right not to act and will not be liable
for refusing to act unless it has received clear and reasonable documentation
that complies with the terms of this Agreement. Such documentation must not
require the exercise of any discretion or independent judgment.
(7) The Escrow Agent will have no responsibility with respect to any Escrow
Securities in respect of which no share certificate or other evidence or
electronic or uncertificated form of these Escrow Securities has been delivered
to it, or otherwise received by it.
(8) The Escrow Agent shall not be responsible for the voting rights
attached to the Escrowed Securities.
- 12 -
(9) No provision of this Agreement shall require the Escrow Agreement to
expend or risk its own funds or otherwise incur financial liability in the
performance of its duties or in the exercise of any rights or powers unless
indemnified as provided herein.
(10) The Escrow Agent shall retain the right not to act and shall not be
liable for refusing to act if, due to a lack of information or for any other
reason whatsoever, the Escrow Agent, in its sole judgment, determines that such
act might cause it to be in non-compliance with any applicable anti-money
laundering or anti-terrorist legislation, regulation or guideline. Further,
should the Escrow Agent, in its sole judgment, determine at any time that its
acting under this Agreement has resulted in its being in non-compliance with any
applicable anti-money laundering or anti-terrorist legislation, regulation or
guideline, then it shall have the right to resign on 10 days' written notice to
all parties provided (i) that the Escrow Agent's written notice shall describe
the circumstances of such non-compliance; and (ii) that if such circumstances
are rectified to the Escrow Agent's satisfaction within such 10-day period, then
such resignation shall not be effective.
(11) If any day on or before which any action required to be taken hereunder
is not business day, then such action shall be required to be taken on or before
the requisite time on the next succeeding day that is a business day. Business
day means any day other than Saturday, Sunday or a day on which the Escrow Agent
is not open for business.
(12) The Escrow Agent is authorized to cancel any share certificate
delivered to it and hold such Securityholder's escrow securities in electronic,
or uncertificated form only, pending release of such securities from escrow.
SECTION 7.7 LIMITATION OF LIABILITY OF ESCROW AGENT
The Escrow Agent will not be liable to any of the Parties hereunder for
any action taken or omitted to be taken by it under or in connection with this
Agreement, except for losses directly, principally and immediately caused by its
bad faith, wilful misconduct or gross negligence. Under no circumstances will
the Escrow Agent be liable for any special, indirect, incidental, consequential,
exemplary, aggravated or punitive losses or damages hereunder, including any
loss of profits, whether foreseeable or unforeseeable. Notwithstanding the
foregoing or any other provision of this Agreement, in no event will the
collective liability of the Escrow Agent under or in connection with this
Agreement to any one or more Parties, except for losses directly caused by its
bad faith or willful misconduct, exceed the amount of its annual fees under this
Agreement or the amount of three thousand dollars ($3,000.00), whichever amount
shall be greater.
SECTION 7.8 REMUNERATION OF ESCROW AGENT
The Issuer will pay the Escrow Agent reasonable remuneration for its
services under this Agreement, which fees are subject to revision from time to
time on 30 days' written notice. The Issuer will reimburse the Escrow Agent for
its expenses and disbursements. Any amount due under this section and unpaid 30
days after request for such payment, will bear interest from the expiration of
such period at a rate per annum equal to the then current rate charged by the
Escrow Agent, payable on demand.
- 13 -
ARTICLE 8
NOTICES
SECTION 8.1 NOTICE TO ESCROW AGENT
Documents will be considered to have been delivered to the Escrow Agent
on the next business day following the date of transmission, if delivered by
fax, the date of delivery, if delivered by hand during normal business hours or
by prepaid courier, or 5 business days after the date of mailing, if delivered
by mail, to the following:
Computershare Investor Service Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Manager, Client Services
Facsimile Number: 000-000-0000
SECTION 8.2 NOTICE TO ISSUER
Documents will be considered to have been delivered to the Issuer on
the next business day following the date of transmission, if delivered by fax,
the date of delivery, if delivered by hand during normal business hours or by
prepaid courier, or five business days after the date of mailing, if delivered
by mail, to the following:
Gryphon Gold Corporation
Xxxxx 000, 0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX, X0X 0X0
Attention: Xxxx Xxx
Facsimile Number: 604-608-3262
SECTION 8.3 DELIVERIES TO SECURITYHOLDERS
(1) Documents will be considered to have been delivered to a Securityholder
on the date of delivery, if delivered by hand or by prepaid courier, or five
business days after the date of mailing, if delivered by mail, to the address on
the Issuer's share register.
(2) Any share certificates or other evidence of a Securityholder's Escrow
Securities will be sent to the Securityholder's address on the Issuer's share
register unless the Securityholder has advised the Escrow Agent in writing
otherwise at least ten business days before the Escrow Securities are released
from escrow. The Issuer will provide the Escrow Agent with each Securityholder's
address as listed on the Issuer's share register.
SECTION 8.4 CHANGE OF ADDRESS
(1) The Escrow Agent may change its address for delivery by delivering
notice of the change of address to the Issuer and to each Securityholder.
(2) The Issuer may change its address for delivery by delivering notice of
the change of address to the Escrow Agent and to each Securityholder.
- 14 -
(3) A Securityholder may change their address for delivery by delivering
notice of the change of address to the Issuer and to the Escrow Agent.
SECTION 8.5 POSTAL INTERRUPTIONS
A Party to this Agreement will not mail a document it is required to
mail under this Agreement if the Party is aware of an actual or impending
disruption of postal service.
ARTICLE 9
GENERAL
SECTION 9.1 INTERPRETATION
When this Agreement refers to securities that a Securityholder "holds",
it means that the Securityholder has direct or indirect beneficial ownership of,
or control or direction over, the securities.
SECTION 9.2 FURTHER ASSURANCES
The Parties will execute and deliver any further documents and perform
any further acts reasonably requested by any of the Parties to this Agreement
which are necessary to carry out the intent of this Agreement.
SECTION 9.3 TIME
Time is of the essence of this Agreement.
SECTION 9.4 INCOMPLETE IPO
If the Issuer does not complete its IPO and has become a reporting
issuer in one or more jurisdictions because it has obtained a receipt for its
IPO prospectus, this Agreement will remain in effect until the securities
regulators in those Jurisdictions order that the Issuer has ceased to be a
reporting issuer; however, if the Issuer does not complete its IPO and does not
become a reporting issuer in one or more Jurisdictions because it has not
obtained a receipt for its IPO prospectus, this Agreement will automatically
terminate.
SECTION 9.5 GOVERNING LAWS
The laws of the Province of Ontario (the "PRINCIPAL REGULATOR") and the
applicable laws of Canada shall govern this Agreement.
SECTION 9.6 JURISDICTION
The securities regulator in each jurisdiction where the Issuer files
its IPO prospectus has jurisdiction over this Agreement and the Escrow
Securities.
SECTION 9.7 CONSENT OF SECURITIES REGULATORS TO AMENDMENT
The securities regulators with Jurisdiction must approve any amendment
to this Agreement and will apply mutual reliance principles in reviewing any
amendments that are filed with them. Therefore, the consent of the Principal
Regulator will evidence the consent of all securities regulators with
jurisdiction.
- 15 -
SECTION 9.8 COUNTERPARTS
The Parties may execute this Agreement by fax and in counterparts, each
of which will be considered an original and all of which will be one agreement.
SECTION 9.9 SINGULAR AND PLURAL
Wherever a singular expression is used in this Agreement, that
expression is considered as including the plural or the body corporate where
required by the context.
SECTION 9.10 LANGUAGE
This Agreement has been drawn up in the English language at the request
of all Parties. Cette convention a ete redige en anglais a la demande de toutes
les Parties.
SECTION 9.11 BENEFIT AND BINDING EFFECT
This Agreement will benefit and bind the Parties and their heirs,
executors, administrators, successors and permitted assigns and all persons
claiming through them as if they had been a Party to this Agreement.
SECTION 9.12 ENTIRE AGREEMENT
This is the entire agreement among the Parties concerning the subject
matter set out in this Agreement and supersedes any and all prior understandings
and agreements.
SECTION 9.13 SUCCESSOR TO ESCROW AGENT
Any corporation with which the Escrow Agent may be amalgamated, merged
or consolidated, or any corporation succeeding to the business of the Escrow
Agent will be the successor of the Escrow Agent under this Agreement without any
further act on its part or on the part or any of the Parties, provided that the
successor is recognized as a trust company by the TSX and notice is given to the
securities regulators with jurisdiction.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the date
set out above.
COMPUTERSHARE INVESTOR SERVICES INC.
By:
-------------------------------------
Authorized Signatory
By:
-------------------------------------
Authorized Signatory
GRYPHON GOLD CORPORATION
By:
-------------------------------------
Authorized Signatory
By:
-------------------------------------
Authorized Signatory
XXXXX X. XXXXXX )
)
Signed, sealed and delivered by )
)
)
Xxxxx X. Xxxxxx in the presence of: )
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) Xxxxx X. Xxxxxx
)
----------------------------------- )
Name of Witness )
- 2 -
XXXXXX X. MATTER )
)
Signed, sealed and delivered by )
)
)
Xxxxxx X. Matter in the presence of: )
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) Xxxxxx X. Matter
)
----------------------------------- )
Name of Witness )
XXXXXX X. XXXXX )
)
Signed, sealed and delivered by )
)
)
Xxxxxx X. Xxxxx in the presence of: )
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) Xxxxxx X. Xxxxx
)
----------------------------------- )
Name of Witness )
XXXXXXX X. XXXXXX )
)
Signed, sealed and delivered by )
)
)
Xxxxxxx X. Xxxxxx in the presence of: )
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) Xxxxxxx X. Xxxxxx
)
----------------------------------- )
Name of Witness )
- 3 -
XXXXX XXXXXXXX )
)
Signed, sealed and delivered by )
)
)
Xxxxx Xxxxxxxx in the presence of: )
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) Xxxxx Xxxxxxxx
)
----------------------------------- )
Name of Witness )
XXXXXX X. XXXXXX )
)
Signed, sealed and delivered by )
)
)
Xxxxxx X. Xxxxxx in the presence of: )
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) Xxxxxx X. Xxxxxx
)
----------------------------------- )
Name of Witness )
ANTHONY D.J. KER )
)
Signed, sealed and delivered by )
)
)
Anthony D.J. Ker in the presence of: )
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) Anthony D.J. Ker
)
----------------------------------- )
Name of Witness )
- 4 -
XXXXXX XXXXX )
)
Signed, sealed and delivered by )
)
)
Xxxxxx Xxxxx in the presence of: )
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) Xxxxxx Xxxxx
)
----------------------------------- )
Name of Witness )
XXXXXXXXXXX X. HERALD )
)
Signed, sealed and delivered by )
)
)
Xxxxxxxxxxx X. Herald in the )
presence of: )
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) Xxxxxxxxxxx X. Herald
)
----------------------------------- )
Name of Witness )
XXXXXXX XXXXXXX XXXXXX )
)
Signed, sealed and delivered by )
)
)
Xxxxxxx Xxxxxxx Xxxxxx in the )
presence of: )
)
Signature of Witness ) -------------------------------------
) Xxxxxxx Xxxxxxx Xxxxxx
)
----------------------------------- )
Name of Witness )
- 5 -
YASMIN KER )
)
Signed, sealed and delivered by )
)
)
Yasmin Ker in the presence of: )
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) Yasmin Ker
)
----------------------------------- )
Name of Witness )
XXXXX XXXXX )
)
Signed, sealed and delivered by )
)
)
Xxxxx Xxxxx in the presence of: )
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) Xxxxx Xxxxx
)
----------------------------------- )
Name of Witness )
XXXXX XXXXXX )
)
Signed, sealed and delivered by )
)
)
Xxxxx Xxxxxx in the presence of: )
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) Xxxxx Xxxxxx
)
----------------------------------- )
Name of Witness )
SCHEDULE "A"
NAME: Xxxxx X. Xxxxxx
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock 2,250,000 26-27-28-29-30-31
-----------------------------------------------------------------------------------------------------------------
Options 350,000
-----------------------------------------------------------------------------------------------------------------
Warrants -
-----------------------------------------------------------------------------------------------------------------
NAME: Xxxxxx X. Matter
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock 2,250,000 64-65-66-67-68-69T-69T2-69-
00-00-00-00-00
-----------------------------------------------------------------------------------------------------------------
Options 350,000
-----------------------------------------------------------------------------------------------------------------
Warrants -
-----------------------------------------------------------------------------------------------------------------
NAME: Xxxxxx X. Xxxxx
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock 485,000 82-83-84-85-86-158
-----------------------------------------------------------------------------------------------------------------
Options 325,000
-----------------------------------------------------------------------------------------------------------------
Warrants 30,000
-----------------------------------------------------------------------------------------------------------------
NAME: Xxxxxxx X. Xxxxxx
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock 1,000,000 00-00-00-00
-----------------------------------------------------------------------------------------------------------------
Options 150,000
-----------------------------------------------------------------------------------------------------------------
Warrants -
-----------------------------------------------------------------------------------------------------------------
NAME: Xxxxx Xxxxxxxx
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock 20,000 219
-----------------------------------------------------------------------------------------------------------------
Options 150,000
-----------------------------------------------------------------------------------------------------------------
Warrants 10,000
-----------------------------------------------------------------------------------------------------------------
- 2 -
NAME: Xxxxxx X. Xxxxxx
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock -
-----------------------------------------------------------------------------------------------------------------
Options 150,000
-----------------------------------------------------------------------------------------------------------------
Warrants -
-----------------------------------------------------------------------------------------------------------------
NAME: Anthony D.J. Ker
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock 1,000,000 47-48-49-50-51-52-53-54-55
-----------------------------------------------------------------------------------------------------------------
Options 325,000
-----------------------------------------------------------------------------------------------------------------
Warrants -
-----------------------------------------------------------------------------------------------------------------
NAME: Xxxxxx Xxxxx
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock 500,000 159-160
-----------------------------------------------------------------------------------------------------------------
Options 250,000
-----------------------------------------------------------------------------------------------------------------
Warrants -
-----------------------------------------------------------------------------------------------------------------
NAME: Xxxxxxxxxxx X. Herald
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock 500,000 35-36
-----------------------------------------------------------------------------------------------------------------
Options 150,000
-----------------------------------------------------------------------------------------------------------------
Warrants -
-----------------------------------------------------------------------------------------------------------------
NAME: Xxxxxxx Xxxxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock -
-----------------------------------------------------------------------------------------------------------------
Options 100,000
-----------------------------------------------------------------------------------------------------------------
Warrants -
-----------------------------------------------------------------------------------------------------------------
- 3 -
NAME: Yasmin Ker
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock 100,000 144
-----------------------------------------------------------------------------------------------------------------
Options -
-----------------------------------------------------------------------------------------------------------------
Warrants 50,000
-----------------------------------------------------------------------------------------------------------------
NAME: Xxxxx Xxxxx
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock 100,000 119-202
-----------------------------------------------------------------------------------------------------------------
Options -
-----------------------------------------------------------------------------------------------------------------
Warrants 50,000
-----------------------------------------------------------------------------------------------------------------
NAME: Xxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------
SECURITIES: Shares of Common Stock and Vested Options and/or Warrants Exercisable to
Acquire Common Stock
-----------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATES (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------------
Common Stock 125,000 166
-----------------------------------------------------------------------------------------------------------------
Options -
-----------------------------------------------------------------------------------------------------------------
Warrants 62,500
-----------------------------------------------------------------------------------------------------------------
SCHEDULE "B"
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
I acknowledge that the securities listed in the attached Schedule "A"
(the "ESCROW SECURITIES") have been or will be transferred to me and that the
Escrow Securities are subject to an
Escrow Agreement dated
.................................... (the "
ESCROW AGREEMENT").
For other good and valuable consideration, I agree to be bound by the
Escrow Agreement in respect of the Escrow Securities, as if I were an original
signatory to the
Escrow Agreement.
Dated at ................................... on ...........
Where the transferee is an individual:
)
Signed, sealed and delivered by )
[Transferee] in the presence of: )
)
)
----------------------------------- )
Signature of Witness ) -------------------------------------
) [Transferee]
)
----------------------------------- )
Name of Witness )
If the Transferee is not an individual:
-------------------------------------
Authorized signatory
-------------------------------------
Authorized signatory
