EXHIBIT 10.12
ESCROW AGREEMENT
THIS AGREEMENT is made as of the 12th day of October, 2006
AMONG:
WORLD ENERGY SOLUTIONS, INC.
(the "ISSUER")
AND:
COMPUTERSHARE INVESTOR SERVICES INC.
(the "ESCROW AGENT")
AND:
EACH OF THE UNDERSIGNED SECURITYHOLDERS OF THE ISSUER
(a "SECURITYHOLDER" or "YOU")
(collectively, the "PARTIES")
THIS AGREEMENT is being entered into by the Parties 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 its
shares of common stock, at par value of $0.0001 per share (the "COMMON STOCK")
by prospectus and by certain securityholders, (which exclude each of the
"Securityholders" named herein) (the PERMITTED SECONDARY OFFERING).
FOR GOOD AND VALUABLE CONSIDERATION, the Parties agree as follows:
PART 1 ESCROW
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.
1.2 DEPOSIT OF ESCROW SECURITIES IN ESCROW
(1) You are depositing the securities (ESCROW SECURITIES) listed opposite your
name in Schedule "A", as of the date hereof, with the Escrow Agent to be
held in escrow under this Agreement. You will immediately deliver or cause
to be delivered to the Escrow Agent any share certificates or other
evidence of these securities which you have or which you may later receive.
(2) If you receive any other securities (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 Part 6 of this
Agreement applies,
you will deposit them in escrow with the Escrow Agent. You will 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.
(3) You will immediately deliver to the Escrow Agent any replacement share
certificates or other evidence of additional escrow securities issued to
you.
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.
PART 2 RELEASE OF ESCROW SECURITIES
2.1 RELEASE SCHEDULE FOR AN ESTABLISHED ISSUER
2.1.1 USUAL CASE
If the issuer is an ESTABLISHED ISSUER (as defined in Section 3.3 of the Policy)
and you have not sold any escrow securities in a permitted secondary offering,
your escrow securities will be released as follows:
On ____________, 2___, the date 1/4 of your escrow securities
the Issuer's securities are
listed on a Canadian exchange
(THE LISTING DATE)
6 months after the listing date 1/3 of your remaining escrow securities
12 months after the listing date 1/2 of your remaining escrow securities
18 months after the listing date your remaining escrow securities
* In the simplest case, where there are no changes to the escrow securities
initially deposited and no additional escrow securities, then the release
schedule outlined above results in the escrow securities being released in
equal tranches of 25%.
2.1.2 ALTERNATE MEANING OF "LISTING DATE"
If the Issuer is an established issuer, an alternate meaning for LISTING DATE is
the date the Issuer completes its IPO if the Issuer's securities are listed on a
Canadian exchange immediately before its IPO.
2.1.3 IF THERE IS A PERMITTED SECONDARY OFFERING
(1) If the Issuer is an established issuer and you have sold in a permitted
secondary offering 25% or more of your escrow securities, your escrow
securities will be released as follows:
For delivery to complete the IPO All escrow securities sold by you
in the permitted secondary offering
6 months after the listing date 1/3 of your remaining escrow securities
12 months after the listing date 1/2 of your remaining escrow securities
18 months after the listing date your remaining escrow securities
* In the simplest case, where there are no changes to the remaining escrow
securities upon completion of the permitted secondary offering and no
additional escrow securities, the release schedule outlined above results
in the remaining escrow securities being released in equal tranches of 33
1/3%.
(2) If the Issuer is an established issuer and you have sold in a permitted
secondary offering less than 25% of your escrow securities, your escrow
securities will be released as follows:
For delivery to complete the IPO All escrow securities sold by you
in the permitted secondary offering
On the listing date 1/4 of your original number of escrow
securities less the escrow securities
sold by you in the permitted secondary
offering
6 months after the listing date 1/3 of your remaining escrow securities
12 months after the listing date 1/2 of your remaining escrow securities
18 months after the listing date your remaining escrow securities
* In the simplest case, where there are no changes to the remaining escrow
securities upon completion of the permitted secondary offering and no
additional escrow securities, the release schedule outlined above results
in the remaining escrow securities being released in equal tranches of 33
1/3% after completion of the release on the listing date.
2.1.4 ADDITIONAL ESCROW SECURITIES
If you acquire additional escrow securities, those securities will be added to
the securities already in escrow, to increase the number of remaining escrow
securities. After that, all of the escrow securities will be released in
accordance with the applicable release schedule in the tables above.
2.2 DELIVERY OF SHARE CERTIFICATES FOR ESCROW SECURITIES
The Escrow Agent will 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.
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 securities released. The Escrow Agent and Issuer will act
as soon as reasonably practicable.
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.
PART 3 DEALING WITH ESCROW SECURITIES
3.1 RESTRICTION ON TRANSFER, ETC.
Unless it is expressly permitted in this Agreement, you will not sell, transfer,
assign, mortgage, enter into a derivative transaction concerning, or otherwise
deal in any way with your 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 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.
3.2 PLEDGE, MORTGAGE OR CHARGE AS COLLATERAL FOR A LOAN
You may pledge, mortgage or charge your 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.
3.3 VOTING OF ESCROW SECURITIES
You may exercise any voting rights attached to your escrow securities.
3.4 DIVIDENDS ON ESCROW SECURITIES
You may receive a dividend or other distribution on your 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 your escrow
securities, other than additional escrow securities, the Escrow Agent will pay
the dividend or other distribution to you on receipt.
3.5 EXERCISE OF OTHER RIGHTS ATTACHING TO ESCROW SECURITIES
You may exercise your rights to exchange or convert your escrow securities in
accordance with this Agreement.
PART 4 PERMITTED TRANSFERS WITHIN ESCROW
4.1 TRANSFER TO DIRECTORS AND SENIOR OFFICERS
(1) You 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 Canadian exchange the Issuer is listed on has been
received;
(c) an acknowledgment in the form of Schedule "B" 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 it is a reporting issuer.
4.2 TRANSFER TO OTHER PRINCIPALS
(1) You 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:
(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
(iii) any required approval from the Canadian exchange the Issuer is
listed on has been received;
(b) an acknowledgment in the form of Schedule "B" signed by the
transferee;
(c) copies of the letters sent to the securities regulators described in
subsection (3) accompanying the acknowledgement; and
(d) 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 it is a reporting issuer.
4.3 TRANSFER UPON BANKRUPTCY
(1) You 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, duly 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" signed by
(i) the trustee in bankruptcy, or
(ii) on direction from the trustee, with evidence of that direction
attached to the acknowledgement 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 acknowledgement with the securities regulators in
the jurisdictions in which the Issuer is a reporting issuer.
4.4 TRANSFER UPON REALIZATION OF PLEDGED, MORTGAGED OR CHARGED ESCROW
SECURITIES
(1) You may transfer within escrow to a financial institution the escrow
securities you have 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" signed by the financial
institution.
(3) Within 10 days after the transfer, the transferee of the escrow securities
will file a copy of the acknowledgement with the securities regulators in
the jurisdictions in which the Issuer is a reporting issuer.
4.5 TRANSFER TO CERTAIN PLANS AND FUNDS
(1) You may transfer escrow securities within escrow to or between a registered
retirement savings plan (RRSP), registered retirement income fund (RRIF) or
other similar registered plan or fund with a trustee, where the annuitant
of the RRSP or RRIF, or the beneficiaries of the other registered plan or
fund are limited to you and your spouse, children and parents or, if you
are the trustee of such a registered plan or fund, to the annuitant of the
RRSP or RRIF, or a beneficiary of the other registered plan or fund, as
applicable, or his or her spouse, 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 you and your 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" signed by the trustee
of the plan or fund.
(3) Within 10 days after the transfer, the transferee of the escrow securities
will file a copy of the acknowledgement with the securities regulators in
the jurisdictions in which the Issuer is a reporting issuer.
4.6 EFFECT OF TRANSFER WITHIN ESCROW
After the transfer of escrow securities within escrow, the escrow securities
will remain in escrow and be released from escrow under this Agreement as if no
transfer has occurred, on the same
terms that applied before the transfer. The Escrow Agent will not deliver any
share certificates or other evidence of the escrow securities to transferees
under this Part 4.
PART 5 BUSINESS COMBINATIONS
5.1 BUSINESS COMBINATIONS
This Part applies to the following (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; and
(f) a reorganization that has an effect similar to an amalgamation or merger.
5.2 DELIVERY TO ESCROW AGENT
(1) You may tender your 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, you must
deliver to the Escrow Agent:
(a) a written direction signed by you that directs the Escrow Agent to
deliver to the depositary under the business combination any share
certificates or other evidence of the 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 you 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 require.
5.3 DELIVERY TO DEPOSITARY
(1) 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 will deliver to the
depositary, in accordance with the direction, any share certificates or
other evidence of the escrow securities, and a letter addressed to the
depositary that:
(a) identifies the escrow securities that are being tendered;
(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
you acquire under the business combination.
5.4 RELEASE OF ESCROW SECURITIES TO DEPOSITARY
(1) 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:
(i) the terms and conditions of the business combination have been
met or waived; and
(ii) 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.
5.5 ESCROW OF NEW SECURITIES
(1) If you receive securities (NEW SECURITIES) of another issuer (SUCCESSOR
ISSUER) in exchange for your 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) you are a principal (as defined in Section 3.5 of the Policy) of the
successor issuer; and
(c) you hold 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 you under outstanding
convertible securities in both your securities and the total
securities outstanding).
5.6 RELEASE FROM ESCROW OF NEW SECURITIES
(1) As soon as reasonably practicable after the Escrow Agent receives:
(a) a certificate from the successor issuer signed by a director or
officer of the successor issuer authorized to sign
(i) 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
(ii) 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 2.2.
(2) If your new securities are subject to escrow, unless subsection (3)
applies, the Escrow Agent will hold your new securities in escrow on the
same terms and conditions, including release dates, as applied to the
escrow securities that you exchanged.
(3) If the Issuer is:
(a) an emerging issuer, the successor issuer is an established issuer, and
the business combination occurs 18 months or more after the Issuer's
listing date, all escrow securities will be released immediately; and
(b) an emerging issuer, the successor issuer is an established issuer, and
the business combination occurs within 18 months after the Issuer's
listing date, all escrow securities that would have been released to
that time, if the Issuer was an established issuer on its listing
date, will be released immediately. Remaining escrow securities will
be released in equal installments on the date that is 6 months, 12
months and 18 months after the Issuer's listing date.
PART 6 RESIGNATION OF ESCROW AGENT
6.1 RESIGNATION OF ESCROW AGENT
(1) If the Escrow Agent wishes to resign as escrow agent, the Escrow Agent will
give written notice to the Issuer.
(2) If the Issuer wishes to terminate the Escrow Agent as escrow agent, the
Issuer will give 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.
(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 Part 7 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 escrow
securities.
PART 7 OTHER CONTRACTUAL ARRANGEMENTS
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 these
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.
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.
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.
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.
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 negligence, willful misconduct
or bad faith on the part of the Escrow Agent. This indemnity survives the
release of the escrow securities, the resignation or termination of the Escrow
Agent and the termination of this Agreement.
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 securities regulators with jurisdiction as set
out in Section 9.6, 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. Provided that the Escrow Agent has obtained the
prior written consent of the Issuer, 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 will have no duty or responsibility under the
Policy or 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 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.
(8) 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 securities has been delivered to it,
or otherwise received by it.
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, willful misconduct or 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.
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
reasonable 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.
PART 8 NOTICES
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:
Name and Address: Computershare Investor Services Inc.
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx, X0X 0X0
Xxxxxx
Attn: Manager, Client Services
Fax: (000) 000-0000
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 5 business days after the date of mailing, if delivered by mail, to
the following:
Name and Address: World Energy Solutions, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
8.3 DELIVERIES TO SECURITYHOLDERS
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 5 business days
after the date of mailing, if delivered by mail, to the address on the Issuer's
share register.
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.
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.
(3) A Securityholder may change that Securityholder's address for delivery by
delivering notice of the change of address to the Issuer and to the Escrow
Agent.
8.5 POSTAL INTERRUPTION
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.
PART 9 GENERAL
9.1 INTERPRETATION - "HOLDING SECURITIES"
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.
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.
9.3 TIME
Time is of the essence of this Agreement.
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.
9.5 GOVERNING LAWS
The laws of the province of Ontario (the "PRINCIPAL REGULATOR") and the
applicable laws of Canada will govern this Agreement.
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.
9.7 CONSENT OF SECURITIES REGULATORS TO AMENDMENT
Except for amendments made under Part 3, 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.
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.
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.
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.
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.
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.
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 of any of the Parties, provided that the
successor is recognized as a transfer agent by the Canadian exchange the Issuer
is listed on and notice is given to the securities regulators with jurisdiction.
9.14 TERMINATION
This escrow agreement shall terminate upon the disbursement by the Escrow Agent
of all of the securities held in escrow in accordance with this escrow
agreement; provided, however, that the provisions of Part 7 shall survive such
termination.
The Parties have executed and delivered this Agreement as of the date set out
above.
COMPUTERSHARE INVESTOR SERVICES INC.
/s/ Xxxxxx Xxxxxxx
------------------------------------
Authorized signatory
/s/ Xxxxx Xxxxxxxx
------------------------------------
Authorized signatory
WORLD ENERGY SOLUTIONS, INC.
/s/ Xxxxx X. Xxxxxxx
------------------------------------
Authorized signatory
/s/ Xxxxxx X. Xxxxx
------------------------------------
Authorized signatory
)
)
Signed, sealed and delivered by )
XXXXXXX XXXXXXXXX in the presence of: )
)
)
/s/ Xxxxxx X. Xxxxx ) /s/ Xxxxxxx Xxxxxxxxx
------------------------------------ ) ---------------------------------
Signature of Witness ) XXXXXXX XXXXXXXXX
)
/s/ Xxxxxx X. Xxxxx )
------------------------------------ )
Name of Witness )
)
)
Signed, sealed and delivered by )
XXXXXXXX XXXXXXXXXX in the presence of: )
)
)
/s/ illegible ) /s/ Xxxxxxxx Xxxxxxxxxx
------------------------------------ ) ---------------------------------
Signature of Witness ) XXXXXXXX XXXXXXXXXX
)
illegible )
------------------------------------ )
Name of Witness )
)
Signed, sealed and delivered by )
XXXXXX XXXXX in the presence of: )
)
)
/s/ Xxxxxxx Xxxxxxxxx ) /s/ Xxxxxx Xxxxx
------------------------------------ ) ---------------------------------
Signature of Witness ) XXXXXX XXXXX
)
Xxxxxxx Xxxxxxxxx )
------------------------------------ )
Name of Witness )
)
Signed, sealed and delivered by )
XXXXXX XXXXXX in the presence of: )
)
)
/s/ Xxxxxx Xxxxxx ) /s/ Xxxxxx Xxxxxx
------------------------------------ ) ---------------------------------
Signature of Witness ) XXXXXX XXXXXX
)
Xxxxxx Xxxxxx )
------------------------------------ )
Name of Witness )
)
Signed, sealed and delivered by )
XXXXXXX XXXXXXXX in the presence of: )
)
)
/s/ Xxxxxxxx Xxxxx ) /s/ Xxxxxxx Xxxxxxxx
------------------------------------ ) ---------------------------------
Signature of Witness ) XXXXXXX XXXXXXXX
)
Xxxxxxxx Xxxxx )
------------------------------------ )
Name of Witness )
Signed, sealed and delivered by )
ROMAN HOLDINGS TRUST in the presence of: )
)
)
/s/ Xxxxx X. Xxxxxxxx ) /s/ Xxxxx X. Xxxxxx
------------------------------------ ) ---------------------------------
Signature of Witness ) XXXXX X. XXXXXX, TRUSTEE NOT
) INDIVIDUALLY
Xxxxx X. Xxxxxxxx )
------------------------------------ )
Name of Witness )
)
Signed, sealed and delivered by )
ROMAN HOLDINGS TRUST in the presence of: )
)
)
/s/ Xxxxx X. Xxxxxxx ) /s/ Xxxx Xxxxxxxxx
------------------------------------ ) ---------------------------------
Signature of Witness ) XXXX XXXXXXXXX, TRUSTEE
)
Xxxxx X. Xxxxxxx )
------------------------------------ )
Name of Witness )
SCHEDULE "A" - TO ESCROW AGREEMENT
SECURITYHOLDER
NAME: XXXXXXX XXXXXXXXX/ROMAN HOLDINGS TRUST
SECURITIES: COMMON STOCK
ADDRESS FOR NOTICE:
Xxxxxxx Xxxxxxxxx 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
Roman Holdings Trust 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000
SECURITIES:
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
-------------------- ---------- ------------------------------
Common Stock 19,145,000(1) 149 (voting) - Roman Holdings
Trust
181 (voting) - Xxxxxxxxx
Note:
(1) Includes 145,000 shares held in the name of Xx. Xxxxxxxxx and 19,000,000
shares held by Xxxx Xxxxxxxxx and Xxxxx X. Xxxxxx, as co-trustees of the
Roman Holdings Trust, of which Xx. Xxxxxxxxx is the principal beneficiary.
The trustees disclaim beneficial ownership of these shares.
SECURITYHOLDER
NAME: XXXXXXXX XXXXXXXXXX
SECURITIES: COMMON STOCK AND WARRANTS
ADDRESS FOR NOTICE:
0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000
SECURITIES:
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
-------------------- ---------- ------------------------------
Common Stock 2,507,928 12 (non-voting)
4, 5, 15 (all voting)
Warrants (exercisable for shares
of common stock) 410,959 4, 5, 25
SECURITYHOLDER
NAME: XXXXXX XXXXX
SECURITIES: COMMON STOCK AND OPTIONS
ADDRESS FOR NOTICE:
000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000
SECURITIES:
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
-------------------- ---------- ------------------------------
Common Stock 1,650,000 2, 15 (all non-voting)
Options (exercisable for shares
of common stock) 850,000
SECURITYHOLDER
NAME: XXXXXX XXXXXX
SECURITIES: COMMON STOCK, OPTIONS AND WARRANTS
ADDRESS FOR NOTICE:
Xxxx 0X, Xxxxx Xxxx Xxxxxxx, 00 Xxxxxxxxxx Xxxx Xxxx, Xxxxxx, XX00 0XX, Xxxxxxx
SECURITIES:
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
-------------------- ---------- ------------------------------
Common Stock 1,571,051(2) 23 (Xxxxxx Xxxxxx), 24, 157,
189 (all voting)
3 (Series A)
Options (exercisable for shares
of common stock) 300,000
Warrants (exercisable for shares
of common stock) 27,397 3
Note:
(2) Includes 703,000 shares of common stock held in the name of Xx. Xxxxxx'x
wife, Xxxxxx Xxxxxx.
SECURITYHOLDER
NAME: XXXXXXX XXXXXXXX
SECURITIES: COMMON STOCK
ADDRESS FOR NOTICE:
0000 Xxxxxx Xxxxxx Xxxxx, #000, Xxx Xxxxx, XX 00000
SECURITIES:
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
-------------------- ---------- ------------------------------
Common Stock 924,339(3) 50 (Series A)
Note:
(3) Consists of shares held by Spinnaker Ventures LLC, of which Xx. Xxxxxxxx is
the managing director and sole stockholder and over which he holds voting
and investment power. Spinnaker Ventures LLC is owned by the Xxxxxxxx
Alaska Irrevocable Trust of which Xx. Xxxxxxxx is a trustee. Xx. Xxxxxxxx
disclaims beneficial ownership of these shares.
SCHEDULE "B" - TO ESCROW AGREEMENT
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 ______________________, 2006
(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 )
Where the Transferee is not an
individual:
[TRANSFEREE]
--------------------------------------
Authorized signatory
--------------------------------------
Authorized signatory
