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EXHIBIT 2.2
DATED 1997
Between
ESCROW AGENT
And
DIVERGENT TECHNOLOGIES PTY LIMITED
And
XXXXXXX COMPUTERS PTY LIMITED
And
XXXXXXX COMPUTERS PTY LIMITED AS TRUSTEE FOR
THE XXXXXXX COMPUTERS UNIT TRUST
ESCROW AGREEMENT
XXXXXXX XXXXX & CO
Solicitors & Attorneys
Xxxxx 0, 00-00 Xxxx Xxxxxx
XXXXXX XXX 0000
DX: 000 XXXXXX
Ref: DZ\D1149
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ESCROW AGREEMENT
AGREEMENT dated 1997
BETWEEN: of ("Escrow Agent");
AND: DIVERGENT TECHNOLOGIES PTY LIMITED (A.C.N. 003 908 325) of
Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxx Xxxxxxxx Xxx Xxxxx Xxxxx 0000
("Divergent");
AND: XXXXXXX COMPUTERS PTY LIMITED ACN 008 004 331 trading as
Xxxxxxx Computers of 00 Xxxxxx Xxxxxx, Xxxxx Xxxxxx in the State of
South Australia ("Xxxxxxx Computers");
AND XXXXXXX COMPUTERS PTY LIMITED ACN 008 004 331 of 00 Xxxxxx
Xxxxxx, Xxxxx Xxxxxx in the State of South Australia aforementioned
in its capacity as trustee for the Xxxxxxx Computers Unit Trust
("the Trust").
WHEREAS:
A. Divergent and Xxxxxxx Computers and the Trust have entered into an
Agreement whereby Divergent has agreed to procure that S.V.I. Holdings Inc
incorporated in the State of Nevada in the United States of America ("SVI")
transfer or issue to the Trust 300,000 ordinary shares in SVI which are
tradeable on the NASDAQ over the counter stock exchange in the United
States of America ("the shares").
B. The Trust are not permitted unless otherwise agreed, in writing, by
Divergent to trade the shares for a period of three (3) years from 30 April
1997 and have agreed that subject to the aforementioned consent by
Divergent the Escrow Agent hold the shares in escrow for Xxxxxxx Computers
during the said period.
C. The Trust are not permitted unless otherwise agreed, in writing, by
Divergent to trade in any further shares issued under the Agreement dated
27 March 1997 for a period of three (3) years from 30 April 1997 and have
agreed that subject to the aforementioned consent by Divergent the Escrow
Agent hold the shares in escrow for Xxxxxxx Computers during the said
period.
THE PARTIES AGREE as follows:
1. DEFINITIONS
In this Agreement the following terms will have the meaning hereby assigned to
them:
"Xxxxxxx Computers" mean Xxxxxxx Computers Pty Ltd ACN 008 004 331 as trustee
for Xxxxxxx Computers Unit Trust.
"The Shares" means 300,000 ordinary shares in the share capital of SVI and any
further shares issued under the Agreement dated 27 March 1997.
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"Divergent" means Divergent Technologies Pty Limited A.C.N. 003 908 325 its
successors and assigns.
2. DEPOSIT
Upon the signing hereof and for a period of three (3) years from the date hereof
or such less period if agreed as aforementioned Divergent will deposit with the
Escrow Agent all of the script, share certificates and all other documentation
relating to the shares.
3. OBLIGATION OF ESCROW AGENT
(a) Escrow Agent agrees:
(i) to keep the shares in secure storage; and
(ii) not to divulge or disclose or otherwise make available to any person
whatsoever, or make any use whatsoever, of the shares without the
prior written consent of Divergent,except as provided in the Agreement
and as required by law.
(b) The Escrow Agent shall be under no obligation or responsibility:
(i) to determine the nature, or validity of the Shares;
(ii) for any transaction between Divergent and Xxxxxxx Computers other than
the performance of his obligations with respect to the shares.
4. INDEMNIFICATION
Xxxxxxx Computers hereby agrees to indemnify the Escrow Agent and hold the
Escrow Agent harmless against any and all loss, damages, costs and expenses that
may be incurred by the Escrow Agent by reason of the Escrow Agent's compliance
in good faith with the terms of this Agreement.
5. AMENDMENTS
This Agreement shall not be revoked, rescinded or modified as to any of its
terms and conditions except by written agreement between the parties hereto.
6. TERM
6.1 This Agreement shall continue for a period of three (3) years from the date
hereof or terminated earlier by the Escrow Agent or the parties hereto.
(a) by the Escrow Agent giving ninety (90) days written notice to Xxxxxxx
and Divergent; or
(b) by agreement of all the parties hereto.
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6.2 Upon termination of this Agreement under this Clause, the shares shall be
delivered to a substitute escrow agent, who shall agree to be bound to the
parties mutatis mutandis or to Xxxxxxx Computers upon the termination of
the aforementioned three (3) year period.
7. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the law in
force in the State of New South Wales.
8. FORCE MAJEURE
Failure or omission to carry out or observe any of the conditions of this
Agreement shall not give rise to any claim against a party hereto or result in
the breach of this Agreement if such failure or omission arises by reason of
delay or inability to perform, caused by war whether declared or not,
insurrections, strikes, inability to obtain materials, fire, storm, or other
severe action of the elements, accidents, government restrictions or for any
other causes whether like or unlike the foregoing which are unavoidable or
beyond the control of the relevant party.
9. AUSTRALIAN COMMERCIAL DISPUTES CENTRE ("ACDC")
(a) If a dispute arises out of or relates to this Agreement or the breach,
termination, validity or subject matter thereof, the parties agree to first
endeavour to settle the dispute by mediation administered by the ACDC.
(b) In the event that the dispute has not been settled within twenty eight (28)
days (or such period as agreed to in writing between the parties hereto)
after the appointment of the mediator, the dispute shall be submitted to
expert determination administered by the ACDC.
(c) The parties agree to accept the determination of the expert as final and
binding. The expert shall be a person agreed between the parties. The
ACDC will assist the parties by providing a list of suggested experts.
Failing agreement, the expert shall be a person appointed by the ACDC.
The mediator shall not be the same person as the expert.
IN WITNESS WHEREOF this Agreement has been duly executed on the day first
hereinbefore written.
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SIGNED by )
in the presence of: )
Witness
Print name
THE COMMON SEAL of DIVERGENT )
TECHNOLOGIES PTY LIMITED )
was affixed in accordance with its )
Articles of Association in the presence of:)
/s/Xxxx Xxxxxxxxxxxx /s/Xxxxx Xxxxx
Director Director
Xxxx Xxxxxxxxxxxx Xxxxx Xxxxx
Print name Print Name
THE COMMON SEAL of )
XXXXXXX COMPUTERS PTY LTD )
was affixed in accordance with )
its Articles of Association in the )
presence of: )
/s/Xxxxx Xxxxxxx /s/Bronte Xxxxxxx
Director Secretary
Xxxxx Xxxxxxx Bronte Xxxxxxx
Print name Print Name
THE COMMON SEAL of )
XXXXXXX COMPUTERS PTY LTD )
as trustee for the Xxxxxxx Computers )
Unit Trust was affixed in accordance )
with its Articles of Association in the )
presence of: )
/s/Xxxxx Xxxxxxx /s/Bronte Xxxxxxx
Director Secretary
Xxxxx Xxxxxxx Bronte Xxxxxxx
Print name Print Name
