EXHIBIT 10.6
ESCROW AGREEMENT
THIS AGREEMENT made as of the 16th day of December, 2004
BETWEEN:
CHEMOKINE THERAPEUTICS CORP., a company incorporated under the laws
of the State of Delaware and having an address 0000 Xxxx Xxxx, Xxxxx
000, University of British Columbia, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X
0X0
(the "ISSUER")
AND:
PACIFIC CORPORATE TRUST COMPANY, a trust company duly incorporated
under the laws of British Columbia having an office at 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(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 common shares
by prospectus, of a minimum of 14,000,000 common share to a maximum of
16,000,000 common shares at a price of CDN$1.00 per common share.
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" 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
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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
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 the Issuer's 1/4 of your escrow securities
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%.
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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 RELEASE SCHEDULE FOR AN EMERGING ISSUER
If the Issuer is an emerging 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 the Issuer's securities are 1/10 of your escrow securities
listed on a Canadian exchange
(THE LISTING DATE)
6 months after the listing date 1/6 of your remaining escrow securities
12 months after the listing date 1/5 of your remaining escrow securities
18 months after the listing date 1/4 of your remaining escrow securities
24 months after the listing date 1/3 of your remaining escrow securities
30 months after the listing date 1/2 of your remaining escrow securities
36 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, the release schedule
outlined above results in the escrow securities being released in equal tranches
of 15% after completion of the release on the listing date
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.
2.3 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.
2.4 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.
2.5 RELEASE UPON DEATH
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(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 EARLY RELEASE ON CHANGE OF ISSUER STATUS
3.1 BECOMING AN ESTABLISHED ISSUER
If the Issuer is an emerging issuer on the date of this Agreement and, during
this Agreement, the Issuer:
(a) lists its securities on The Toronto Stock Exchange Inc.;
(b) becomes a TSX Venture Exchange Inc. (TSX Venture) Tier 1 issuer; or
(c) lists or quotes its securities on an exchange or market outside
Canada that its "principal regulator" under National Policy 43-201
Mutual Reliance Review System for Prospectuses and Annual
Information Forms (in Quebec under Staff Notice, Mutual Reliance
Review System for Prospectuses and Annual Information Forms) or, if
the Issuer has only filed its IPO prospectus in one jurisdiction,
the securities regulator in that jurisdiction, is satisfied has
minimum listing requirements at least equal to those of TSX Venture
Tier 1,
then the Issuer becomes an established issuer.
3.2 RELEASE OF ESCROW SECURITIES
(1) When an emerging issuer becomes an established issuer, the release
schedule for its escrow securities changes.
(2) If an emerging issuer becomes an established issuer 18 months or more
after its listing date, all escrow securities will be released
immediately.
(3) If an emerging issuer becomes an established issuer within 18 months after
its 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 day that is 6 months, 12 months and 18 months
after the listing date.
3.3 FILING REQUIREMENTS
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Escrow securities will not be released under this Part until the Issuer does the
following:
(a) at least 20 days before the date of the first release of escrow
securities under the new release schedule, files with the securities
regulators in the jurisdictions in which it is a reporting issuer
(i) a certificate signed by a director or officer of the Issuer
authorized to sign stating
A. that the Issuer has become an established issuer by
satisfying one of the conditions in section 3.1 and
specifying the condition, and
B. the number of escrow securities to be released on the
first release date under the new release schedule, and
(ii) a copy of a letter or other evidence from the exchange or
quotation service confirming that the Issuer has satisfied the
condition to become an established issuer; and
(b) at least 10 days before the date of the first release of escrow
securities under the new release schedule, issues and files with the
securities regulators in the jurisdictions in which it is a
reporting issuer a news release disclosing details of the first
release of the escrow securities and the change in the release
schedule, and sends a copy of such filing to the Escrow Agent.
3.4 AMENDMENT OF RELEASE SCHEDULE
The new release schedule will apply 10 days after the Escrow Agent receives a
certificate signed by a director or officer of the Issuer authorized to sign
(a) stating that the Issuer has become an established issuer by
satisfying one of the conditions in section 3.1 and specifying the
condition;
(b) stating that the release schedule for the Issuer's escrow securities
has changed;
(c) stating that the Issuer has issued a news release at least 10 days
before the first release date under the new release schedule and
specifying the date that the news release was issued; and
(d) specifying the new release schedule.
PART 4 DEALING WITH ESCROW SECURITIES
4.1 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
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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.
4.2 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.
4.3 VOTING OF ESCROW SECURITIES
You may exercise any voting rights attached to your escrow securities.
4.4 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.
4.5 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 5 PERMITTED TRANSFERS WITHIN ESCROW
5.1 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;
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(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.
5.2 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;
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(c) copies of the letters sent to the securities regulators 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 in
which it is a reporting issuer.
5.3 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, 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 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 in which the Issuer is a reporting issuer.
5.4 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 4.2 to
that financial institution as collateral for a loan on realization of the
loan.
(2) Prior to the transfer the Escrow Agent must receive:
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(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 acknowledgment with the securities regulators in
the jurisdictions in which the Issuer is a reporting issuer.
5.5 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 acknowledgment with the securities regulators in
the jurisdictions in which the Issuer is a reporting issuer.
5.6 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 will not deliver any share certificates or other evidence of the
escrow securities to transferees under this Part 5.
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PART 6 BUSINESS COMBINATIONS
6.1 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
(f) a reorganization that has an effect similar to an amalgamation or
merger
6.2 DELIVERY TO ESCROW AGENT
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 request.
6.3 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 6.2, 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;
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(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 6.4;
(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.
6.4 RELEASE OF ESCROW SECURITIES BY 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.
6.5 ESCROW OF NEW SECURITIES
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.)
6.6 RELEASE FROM ESCROW OF NEW SECURITIES
(1) As soon as reasonably practicable after the Escrow Agent receives:
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(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 6.5,
the escrow securities of the Securityholders whose new securities are not
subject to escrow under section 6.5 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 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 instalments on the day that is
6 months, 12 months and 18 months after the Issuer's listing date.
PART 7 RESIGNATION OF ESCROW AGENT
7.1 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.
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(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 8 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 8 OTHER CONTRACTUAL ARRANGEMENTS
8.1 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.
8.2 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.
8.3 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.
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8.4 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.
8.5 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, wilful
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.
8.6 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 will have no duty or
responsibility under the Policy or arising under
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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.
8.7 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 wilful 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.
8.8 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.
8.9 INDEMNIFICATION OF THE EXCHANGE
(1) The Issuer and each Securityholder jointly and severally:
(a) release, indemnify and save harmless the Exchange from all costs
(including legal cost, expenses and disbursements), charges, claims,
demands, damages, liabilities, losses and expenses incurred by the
Exchange;
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(b) agree not to make or bring a claim or demand, or commence any
action, against the Exchange; and
(c) agree to indemnify and save harmless the Exchange from all costs
(including legal costs) and damages that the Exchange incurs or is
required by law to pay as a result of any person's claim, demand or
action,
arising from any and every act or omission committed or omitted by the Exchange,
in connection with this Agreement, even if said act or omission was negligent,
or constituted a breach of the terms of this Agreement.
(2) This indemnity survives the release of the escrow securities and the
termination of this Agreement.
PART 9 NOTICES
9.1 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:
Pacific Corporate Trust Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: -
Fax: (604) - 000-0000
9.2 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:
Chemokine Therapeutics Corp.
0000 Xxxx Xxxx
Xxxxx 000, Xxxxxxxxxx xx Xxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Xxxxxx Xxxxxx
Fax: - (000) 000-0000
With a copy to:
Xxxxxx, Xxxxxxx
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Suite 1525 - 000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
9.3 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.
9.4 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.
9.5 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 10 GENERAL
10.1 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.
10.2 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.
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10.3 TIME
Time is of the essence of this Agreement.
10.4 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.
10.5 GOVERNING LAW
The laws of British Columbia (the "Principal Regulator") and the applicable laws
of Canada will govern this Agreement.
10.6 JURISDICTION
The securities regulator in each jurisdiction where the Issuer files its IPO
prospectus has jurisdiction over this Agreement and the escrow securities.
10.7 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.
10.8 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.
10.9 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.
10.10 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.
10.11 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.
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10.12 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.
10.13 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 transfer agent by the Canadian exchange the Issuer
is listed on (or if the Issuer is not listed on a Canadian exchange, by any
Canadian exchange) and notice is given to the securities regulators with
jurisdiction.
EXECUTION
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CHEMOKINE THERAPEUTICS CORP.
by: /s/ Xxxxxx Xxxxxx
-----------------------------------------
and: c/s
-----------------------------------------
PACIFIC CORPORATE TRUST COMPANY
by: /s/ Xxxx Xxxxxxxxxx
-----------------------------------------
and: /s/ Xxxx Xxxxxx c/s
-----------------------------------------
PACIFIC MEDICAL CORP.
by: /s/ Xxxxxx Xxxxxx
-----------------------------------------
and: c/s
-----------------------------------------
SCHEDULE "A"
SECURITYHOLDER
NAME: PACIFIC MEDICAL CORP
SECURITIES:
--------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
--------------------------------------------------------------------------------
common shares 6,247,101
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SCHEDULE "B"
ACKNOWLEDGMENT 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 )
)
Where the transferee is not an individual:
[TRANSFEREE]
-----------------------------------------
Authorized signatory
-----------------------------------------
Authorized signatory
