1
Exhibit 10.2
EMPLOYEE/SHAREHOLDER ESCROW AGREEMENT
This Employee/Shareholder Escrow Agreement (the "AGREEMENT") is
entered into as of December 16, 1999 by and among XXXXXX TECHNOLOGIES, INC.
("PARENTCO"), XXXXXX CANADA CORPORATION, a newly formed Nova Scotia unlimited
liability company (the "COMPANY"), the holders of all of the issued and
outstanding shares of INLOGIC SOFTWARE INC. ("INLOGIC") identified on Exhibit A
hereto as such (collectively, the "EMPLOYEE/SHAREHOLDERS"), Xxxxxxxx Xxxxx as
representative of the Employee/Shareholders (the "ESCROW REPRESENTATIVE") and
MONTREAL TRUST COMPANY OF CANADA, as escrow agent (the "ESCROW AGENT").
WHEREAS, pursuant to a Share Purchase Agreement (the "PURCHASE
AGREEMENT") dated as of the date hereof, by and among ParentCo, the Company,
Inlogic, the Employee/Shareholders and the other shareholders of Inlogic, the
Company is purchasing all of the issued and outstanding shares in Inlogic in
consideration for the issuance of either exchangeable shares of the Company
(the "EXCHANGEABLE SHARES") or shares of common stock, $0.01 par value per
share, of ParentCo ("PARENTCO COMMON STOCK");
AND WHEREAS, the Employee/Shareholders have agreed to have a portion
of the Exchangeable Shares or ParentCo Common Stock, as the case may be, which
they will receive in consideration for their shares in Inlogic, placed in
escrow for a period of time, as specified in Article 7 of the Purchase
Agreement;
AND WHEREAS, 661,242 Exchangeable Shares of the Company and 33,812
Shares of ParentCo Common Stock are being deposited in escrow to be held as
hereinafter provided;
AND WHEREAS the foregoing recitals are made as representations and
statements of fact by the parties hereto other than the escrow Agent;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises of the parties herein contained, and other good and valuable
consideration, receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Escrow and Escrow Shares.
Pursuant to the Purchase Agreement, the Company shall deposit in
escrow with the Escrow Agent, as escrow agent, a stock certificate or
certificates representing 661,242 Exchangeable Shares issued and initially
14,859 shares of ParentCo Common Stock issued and, within 60 days, an
additional 18,953 shares of ParentCo Common Stock issued (together, the "ESCROW
SHARES" Stock and together with additions to or earnings on the same, the
"ESCROW DEPOSIT") which shall be registered in the name of the Escrow Agent, or
its nominee, as agent for the beneficial owners of such shares. The Escrow
Shares shall be held and distributed by the Escrow Agent in accordance with the
terms and conditions hereof. The number of Escrow Shares beneficially owned by
each Shareholder is set forth in Schedule A hereto, subject to adjustments as
set out in Sections 5 and 6 of this Agreement.
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2. Investment of Escrow.
The Escrow Agent shall invest all cash, if any, held as part of the
Escrow Deposit only in such specific investments as the Employee/Shareholders
and the Escrow Representative shall from time to time jointly direct in writing
to the Escrow Agent. If the amount of cash is insufficient to invest the cash
will be deposited into an interest bearing trust account of the Escrow Agent.
Until further written notice, cash in the Escrow Deposit shall be
invested in an interest bearing trust account of the Escrow Agent secured by
federal regulators, money market funds, guaranteed investment certificates,
treasury bills, or any debtor bond obligations rated AAA by Standard & Poor's
or Dominion Bond Rating Service or the equivalent rating by such other rating
agency as the Escrow Representative and the Employee/Shareholders may direct.
Unless otherwise directed in writing by the Escrow Representative and the
Employee/Shareholders, the Escrow Agent shall not invest all or any portion of
the Escrow Deposit in any investment if the maturity date of such investment is
later than the last date of the Escrow Period (as defined below).
3. Exchange and Permitted Transfers.
The Exchangeable Shares may be exchanged into ParentCo Common Stock
(or any other securities) during the Escrow Period and the Exchangeable Shares
may be transferred within escrow solely in favour of Xxxxxx Callco Corporation,
if required to effect such exchange. The Employee/Shareholder desiring such
exchange shall deliver to the Escrow Agent a notice stating the number of
Exchangeable Shares (such number not to exceed the total number of Exchangeable
Shares that the Escrow Agent is holding on behalf of such Employee/Shareholder)
he or she wishes to exchange. The Escrow Agent shall deliver to the Company
such notice together with an Exchangeable Share certificate(s) representing at
least that number of Exchangeable Share being exchanged. The Company shall
return to the Escrow Agent the ParentCo Common Stock into which the
Exchangeable Shares have been exchanged and any other consideration resulting
from such exchange as well as a new Exchangeable Share certificate representing
the balance of any Exchangeable Shares not exchanged all of which shall form
part of the Escrow Deposit. The Company shall return such consideration within
10 business days.
The ParentCo Common Stock may be transferred within the Escrow Period,
provided that (i) such transfer is effected pursuant to the registration rights
agreement dated the date hereof between ParentCo and the Employee/Shareholders
or pursuant to a valid exemption under Rule 144 of the Securities Act of 1933,
as amended; (ii) the Employee/Shareholder represents in writing to the Escrow
Agent that he or she does not hold any Exchangeable Shares or ParentCo Common
Stock other than the Escrow Shares or that he or she is transferring any other
ParentCo Common Stock it holds as part of such transfer; and (iii) the
Employee/Shareholder shall return to the Escrow Agent to form part of the
Escrow Amount, the pre-tax net proceeds received by the Employee/Shareholder
from such transfer. The Escrow Agent shall have no duty to determine the
accuracy of such notice. Upon receipt of such notice the Escrow Agent will
forward the ParentCo Common Stock in question to the Employee/Shareholder with
a power of attorney. The Employee/Shareholder shall return to the Escrow Agent
to form part of the Escrow Deposit, the pre-tax net proceeds received by
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the Employee/Shareholder from such transfer and the balance of the ParentCo
Common Stock represented by the certificate released not transferred within 10
business days of the Escrow Agent's release of same. If the Escrow Agent does
not receive such proceeds within 10 business days it will notify the Company.
The Escrow Agent shall have no duty to ensure that the Employee/Shareholder
deposits such proceeds or to determine the sufficiency of such proceeds.
4. Rights and Obligations of the Parties.
The Escrow Agent shall be entitled to such rights and shall perform
such duties of the escrow agent as set forth herein (collectively, the
"DUTIES"), in accordance with the terms and conditions of this Agreement.
ParentCo, the Company, the Escrow Representative and the Employee/Shareholders
shall be entitled to their respective rights and shall perform their respective
duties and obligations as set forth herein, in accordance with the terms
hereof.
5. Escrow Period.
(a) Subject to Section 5(b) herein, the Escrow Period shall
terminate with respect to (i) 41.67% of the Escrow Shares
held on behalf of each Employee/Shareholder at the expiration
of six (6) months after the date of this Agreement; (ii)
41.67% of the Escrow Shares held on behalf of each
Employee/Shareholder of the Escrow Shares at the expiration
of twelve (12) months after the date of this Agreement; and
(iii) the remainder of the Escrow Deposit at the expiration
of eighteen (18) months after the date of this Agreement. Any
fractional shares which are to be released pursuant to (i) or
(ii) hereof shall be rounded up to the next whole share.
(b) Notwithstanding Section 5(a) above, if the Escrow Agent and
the Company receive a written notice from the
Employee/Shareholder to the effect that due to a material
breach by the Company of such Employee/Shareholder's
employment agreement with the Company (provided that the
Escrow Agent has not received a written notice from the
Company within 5 business days of receipt of such notice of
material breach, that there is a dispute under the
Employee/Shareholders' employment agreement with respect to
such material breach, in which case the Escrow Agent shall
await receipt of a joint settlement, arbitration award or
court judgment or order or any similar official notice of
resolution of the dispute), all the Escrow Shares of such
Employee/Shareholder shall be released from escrow and the
Escrow Agent shall deliver to such Employee/Shareholder that
number of Escrow Shares and that amount of any other property
in the Escrow Deposit which bears the same relationship to
the total number of Escrow Shares and other Property in the
Escrow Deposit as the number of Escrow Shares set forth
opposite his/her name on Exhibit A hereto, (as may be
adjusted from time to time), bears to the total number of
Escrow Shares on Exhibit A.
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6. Delivery of Escrow Shares
(a) Promptly following the termination of each Escrow Period as
set forth above, the Escrow Agent shall deliver to the
Employee/Shareholders that number of Escrow Shares which
bears the same relationship to the total number of Escrow
Shares in the Escrow Deposit and available for distribution
as the number of Escrow Shares set forth opposite the name of
each such Employee/Shareholder on Exhibit A hereto (as may be
adjusted from time to time) bears to the total number of
Escrow Shares on Exhibit A. With respect to the last Escrow
Period, the Escrow Agent shall deliver together with the
Escrow Shares the proportionate amount of property, if any,
in the Escrow Deposit.
(b) XXXXXXXX XXXXX - In the event that the Escrow Agent and Mr.
Xxxxxxxx Xxxxx receives a written notice from the Company
that Mr. Xxxxxxxx Xxxxx has been terminated "for cause" under
the terms of his employment agreement with the Company,
provided that the Escrow Agent has not received a written
notice from Mr. Xxxxx within 5 business days of receipt of
such notice of termination, that there is a dispute under Mr.
Aamir's employment agreement with respect to such
termination, in which case the Escrow Agent shall await
receipt of a joint settlement arbitration award or court
judgment or order or any similar official notice of
resolution of the dispute, (i) 50% of the Escrow Deposit
beneficially held on his behalf hereunder shall be released
from escrow and delivered (in the case of the Escrowed
Shares, for cancellation) to the Company; and (ii) the
remaining 50% of the Escrow Deposit beneficially held on his
behalf hereunder shall be released from escrow and
transferred to a charitable organization which has been
designated on the date hereof or such other charitable
organization as has been designated in writing by Xxxxxxxx
Xxxxx and the Company's Chief Executive Officer. In the event
that Mr. Xxxxxxxx Xxxxx dies by natural or accidental cause
the Company shall give a notice to the Escrow Agent (which
notice shall identify the name of the representative of Mr.
Aamir's estate) and that percentage of the Escrow Deposit
beneficially held on his behalf hereunder shall be released
from escrow and delivered to Mr. Aamir's estate forthwith.
(c) TERMINATION FOR CAUSE OR RESIGNATION - In the event that the
Escrow Agent and the Employee/Shareholder receives a notice
by the Company (i) that such Employee/Shareholder (other than
Xxxxxxxx Xxxxx) has been terminated "for cause" under the
terms of his or her employment agreement with the Company
(other than if the Escrow Agent receives a written notice by
such Employee/Shareholder that there is a dispute under his
or her employment agreement with respect to such termination
within 5 business days of the Escrow Agent's receipt of the
Company's notice of termination, in which case the Escrow
Agent shall await receipt of a joint settlement, arbitration
award or court judgment or order or any similar official
notice of the result of the dispute from the Employee and the
Company); or (ii) that such Employee/Shareholder has resigned
from his or her employment with the
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Company (other than if the Escrow Agent receives a written
notice by such Employee/Shareholder that there is a dispute
under his or her employment agreement with respect to such
resignation within 5 business days of the Escrow Agent's
receipt of the Company's written notice of resignation, in
which case the Escrow Agent shall await receipt of a joint
settlement, arbitration award or court judgment or order or
any similar official notice of the result of the dispute from
the Employee and the Company); 100% of the Escrow Deposit
beneficially held on his or her behalf shall be transferred
and reallocated within escrow to all the other
Employee/Shareholders hereunder on a pro rata basis, and the
Escrow Agent shall adjust Exhibit A hereof accordingly. Any
fractional shares arising from such reallocation shall be
returned to the Company for cancellation.
7. Amounts Earned on Escrow Deposit: Tax Matters.
All amounts earned, paid or distributed with respect to the Escrow
Deposit, if any, (whether interest, dividends, distributions from ParentCo with
respect to the Escrow Shares or otherwise) shall become a part of the Escrow
Deposit, shall be held hereunder upon the same terms as the original Escrow
Deposit and shall be distributed together with the underlying portion of the
original Escrow Deposit pursuant to the terms of this Agreement. The parties
agree that the Employee/Shareholders will include all amounts earned on the
Escrow Deposit (or allocated or distributed with respect thereto) in their
gross income for federal, provincial and local income tax (collectively,
"INCOME TAX") purposes and pay any income tax resulting therefrom, pro rata in
accordance with their combined ownership percentage as set forth on Exhibit A.
8. The Escrow Agent.
(a) Direction from ParentCo and Escrow Representative.
Notwithstanding anything herein to the contrary, the Escrow
Agent shall promptly dispose of all or any part of the Escrow
Deposit as directed by a notice in writing signed by the
Company, ParentCo and Escrow Representative.
(b) Reliance by Escrow Agent; Liability of Escrow Agent. Except
with respect to capitalized terms used herein and defined in
the Purchase Agreement, the Escrow Agent will not be subject
to, or be obliged to recognize, any other agreement between
the parties hereto or directions or instructions not
specifically set forth as provided for herein. The Escrow
Agent will not make any payment or disbursement from or out
of the Escrow Deposit that is not expressly authorized
pursuant to this Agreement. The Escrow Agent undertakes to
perform only such duties as are expressly set forth herein.
The Escrow Agent may rely and shall be protected in acting or
refraining from acting upon any written notice, instruction
or request furnished to it hereunder and believed by it to be
genuine and to have been signed or presented by the proper
party or parties. The Escrow Agent shall be under no duty to
inquire into or investigate the validity, accuracy or content
of any such document. The Escrow Agent shall have no duty to
solicit any payment that may be due it hereunder. The Escrow
Agent shall not be liable for any action taken or
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omitted by it in good faith unless a court of competent
jurisdiction determines that the Escrow Agent's gross
negligence and willful misconduct was the primary cause of
any loss to the Company, ParentCo or the
Employee/Shareholders. In the administration of the Escrow
Deposit hereunder, the Escrow Agent may execute any of its
powers and perform its duties hereunder directly or through
agents or attorneys and may consult with counsel, accountants
and other skilled persons to be selected and retained by it.
The Escrow Agent shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with
the advice or opinion of any such counsel, accountants or
other skilled persons. The Company, ParentCo and the
Employee/Shareholders jointly and severally hereby agree to
indemnify and hold the Escrow Agent and its directors,
officers, agents and employees (collectively, the
"INDEMNITEES") harmless from and against any and all claims,
liabilities, losses, damages, fines, penalties, and expenses,
including out-of-pocket and incidental expenses and legal
fees and expenses ("LOSSES") that may be imposed on, incurred
by, or asserted against the Indemnitees or any of them for
following any instructions or other directions upon which the
Escrow Agent is authorized to rely pursuant to the terms of
this Agreement. In addition to and not in limitation of the
immediately preceding sentence, the Company, ParentCo and the
Employee/Shareholders also agree jointly and severally to
indemnify and hold the Indemnitees and each of them harmless
from and against any and all Losses that may be imposed on,
incurred by, or asserted against the Indemnitees or any of
them in connection with or arising out of the Indemnities'
performance under this Agreement, provided the Indemnitees
have not acted with gross negligence or engaged in willful
misconduct. In addition, without limiting the foregoing, with
respect to a distribution made by ParentCo or the Company or
any exchange or transfer of any Escrowed Shares, ParentCo
will retain counsel for the Escrow Agent to advise the Escrow
Agent on tax reporting issues. Anything in this Agreement to
the contrary notwithstanding, in no event shall the Escrow
Agent be liable for special, indirect or consequential loss
or damage of any kind whatsoever (including but not limited
to lost profits). As between the Company and ParentCo on the
one hand and the Employee/Shareholders on the other, each
shall bear equally the indemnification obligations set forth
in this Section 8(b). The provisions of this Section 8(b)
shall survive the termination of this Agreement and the
resignation or removal of the Escrow Agent for any reason.
(c) Fees and Expenses of the Escrow Agent. All fees of the Escrow
Agent for its services hereunder, together with any expenses
reasonably incurred by the Escrow Agent in connection with
this Agreement, shall be paid by the Company. All fees of the
Escrow Agent in connection herewith shall be due upon receipt
of an invoice from the Escrow Agent delivered to the Company.
(d) Resignation and Removal of Escrow Agent; Successor Escrow
Agent.
(i) The Escrow Agent may resign from its duties
hereunder by giving each of the parties hereto not
less than thirty (30) days prior written
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notice of the effective date of such resignation
(which effective date shall be at least thirty (30)
days after the date such notice is given). In
addition, the Escrow Agent may be removed and
replaced on a date designated in a written
instrument (which effective date shall be at least
thirty (30) days after the date such notice is
given) signed by the Company, ParentCo and the
Escrow Representative and delivered to the Escrow
Agent. The parties hereto intend that a successor
escrow agent mutually acceptable to the Escrow
Representative, the Company and ParentCo will be
appointed to fulfill the duties of the Escrow Agent
hereunder for the remaining term of this Agreement
in the event of the Escrow Agent's resignation or
removal. Upon the effective date of such resignation
or removal, the Escrow Agent shall deliver the
property comprising the Escrow Deposit to such
successor escrow agent, together with an accounting
of the investments held by it and all transactions
related to this Agreement, including any
distributions made and such records maintained by
the Escrow Agent in connection with its duties
hereunder and other information with respect to the
Escrow Deposit as such successor may reasonably
request. If on or before the effective date of such
resignation or removal, a successor escrow agent has
not been appointed, the Escrow Agent shall cease its
functions at the expiry of the notice period and may
retain all and any property in its possession
hereunder on a merely safekeeping basis, at a fee to
be determined by the Escrow Agent, acting
reasonably.
Upon written acknowledgment by a successor escrow agent appointed in
accordance with this Agreement to serve as escrow agent hereunder and the
receipt of the property then comprising the Escrow Deposit, the Escrow Agent
shall be fully released and relieved of all duties, responsibilities and
obligations under this Agreement, subject to Section 8(b) of this Agreement,
and such successor escrow agent shall for all purposes hereof be the Escrow
Agent.
(ii) Any corporation, association or other entity into
which the Escrow Agent may be converted or merged,
or with which it may be consolidated, or to which it
may sell or otherwise transfer all or substantially
all of its corporate trust business, or any
corporation, association or other entity resulting
from any such merger, conversion, consolidation,
sale or other transfer, shall, ipso facto, be and
become successor Escrow Agent hereunder, vested with
all of the powers, discretions, immunities,
privileges and all other matters as was its
predecessor, without the execution or filing of any
instrument or any further act on the part or any of
the parties hereto, anything herein to the contrary
notwithstanding.
(e) The Escrow Agent shall have the right to consult with and
obtain advice from legal counsel employed or appointed by it,
who may but need not be legal counsel for the Company, in the
event of any questions as to any of the provisions hereof or
its duties hereunder. The cost of such services shall be
reasonable expenses pursuant to s. 8(c) hereof.
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(f) The Escrow Agent shall disburse monies hereunder only to the
extent that monies have been deposited with it.
(g) The Escrow Agent shall retain the right not to act and shall
not be held liable for refusing to act unless it has received
clear documentation which complies with the terms of this
Agreement. Such documentation must not require the exercise
of any discretion or independent judgment.
(h) The Escrow Agent shall incur no liability with respect to the
delivery or non-delivery of any certificate or certificates
whether delivered by hand, mail or any other means.
(i) The forwarding of a cheque by the Escrow Agent will satisfy
and discharge the liability for any amounts due to the extent
of the sum or sums represented thereby. In the event of the
non-receipt of such cheque by the payee, or the loss or
destruction thereof, the Escrow Agent, upon being furnished
with reasonable evidence of such non-receipt, loss or
destruction and indemnity reasonably satisfactory to it, will
issue to such payee a replacement cheque for the amount of
such cheque.
(j) None of the provisions contained in this Agreement require
the Escrow Agent to expend or to risk its own funds or
otherwise to incur financial liability in the performance of
any of its duties or in the exercise of any of its rights or
powers.
9. Voting of Escrow Shares.
So long as any Escrow Shares are retained by the Escrow Agent, the
Employee/Shareholders in accordance with their respective ownership percentages
as set forth on Exhibit A hereto, shall be entitled to exercise the voting
power, if any, with respect to the Escrow Shares, in accordance with their
respective ownership percentages as set forth on Exhibit A hereto. ParentCo and
the Company shall provide to the Escrow Agent such sufficient number of copies
of materials to be provided to the Employee/Shareholders in sufficient time for
the Escrow Agent to provide the materials to the Employee/Shareholders in order
that the Employee/Shareholders may exercise their voting power. The Escrow
Agent shall not exercise the voting power of the Employee/Shareholders.
10. Termination.
This Agreement shall terminate on the date that the Escrow Deposit is
reduced to zero as the result of releases by the Escrow Agent to
Employee/Shareholders in accordance with this Agreement. Notwithstanding the
foregoing, this Agreement shall no longer apply to any Employee/Shareholder on
whose behalf the Escrow Agent no longer holds any portion of the Escrow Deposit
pursuant to the terms of this Agreement.
11. Governing Law.
IT IS THE PARTIES' INTENT THAT THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL
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LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS APPLICABLE THEREIN.
12. Counterparts.
This Escrow Agreement may be executed in one or more counterparts, all
of which documents shall be considered one and the same document.
13. Notices.
Any notice or other communication required or permitted hereunder
shall be in writing and shall be deemed to have been given when received, if
personally delivered or delivered by overnight delivery service or sent by
facsimile transmission:
TO PARENTCO: Xxxxxx Technologies, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxx, Xxxxxxx & Xxxxxx L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
TO THE COMPANY: Xxxxxx Canada Corporation
000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Fax: (000) 000-0000
With a copy to: Stikeman, Xxxxxxx
Barristers & Solicitors
Suite 0000
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
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And a copy to: Xxxxxx, Xxxxxxx & Xxxxxx L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
TO THE EMPLOYEE/SHAREHOLDERS: See Exhibit B
TO THE ESCROW REPRESENTATIVE: Xxxxxxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxx. 000
Xxxxxxx, Xxxxxxx
X0X 0X0
With a copy to: Xxxxx Xxxxxxx & Xxxxxxx
Commerce Court West
P.O. Box 25
Stn. Commerce Court
Toronto, Ontario
M5L 1A9
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
TO THE ESCROW AGENT: Montreal Trust Company of Canada
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Manager Corporate
Trust Services
Fax: (000) 000-0000
Addresses may be changed by written notice given pursuant to this
Section. Any notice given hereunder may be given on behalf of any party by his
counsel or other authorized representatives.
14. Force Majeure.
Neither the Company, ParentCo, the Escrow Representative, the
Employee/Shareholders nor the Escrow Agent shall be responsible for delays or
failures in performance under this Agreement resulting from acts beyond its
control. Such acts shall
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include but not be limited to acts of God, strikes, lockouts, riots, acts of
war, epidemics, governmental regulations superimposed after the fact, fire,
communication line failures, computer viruses, power failures, earthquakes or
other disasters.
15. Modifications.
This Agreement may not be altered or modified nor may any condition or
covenant set forth herein be waived, without the express written consent of the
parties hereto and the consent of the Escrow Representative shall bind each of
the Employee/Shareholders. No course of conduct shall constitute a waiver of
any of the terms and conditions of this Escrow Agreement, unless such waiver is
specified in writing, and then only to the extent so specified. A waiver of any
of the terms and conditions of this Escrow Agreement on one occasion shall not
constitute a waiver of the other terms of this Escrow Agreement, or of such
terms and conditions on any other occasion.
16. Reproduction of Documents.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, and (b) certificates and other information previously or hereafter
furnished, may be reproduced by a photographic, photostatic, microfilm, optical
disk, micro-card, miniature photographic or other similar process. The parties
agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not
the original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to
be executed as of the date first written above.
XXXXXX CANADA CORPORATION
By:
-------------------------------------
Name:
Title:
XXXXXX TECHNOLOGIES, INC.
By:
-------------------------------------
Name:
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------------------------------------------
Xxxxxxxx Xxxxx,
As Escrow Representative
MONTREAL TRUST COMPANY OF CANADA
By:
------------------------------------------
By:
------------------------------------------
Name:
EMPLOYEE/SHAREHOLDERS:
------------------------------------------
XXXXXXXX XXXXX
------------------------------------------
XXXX XXXXX
------------------------------------------
XXXXXXXX XXXXXXX
------------------------------------------
XXXXXXX XXXXX
------------------------------------------
XXXX XXX
------------------------------------------
XXXXXXX XXXXXX
------------------------------------------
XXXXXXX XXXXX
------------------------------------------
NAHLA RASHAD
------------------------------------------
XXXXXX XXXXXX
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THE VENGROWTH INVESTMENT
FUND INC.
By:
--------------------------------------
Name:
Title:
01303949 ONTARIO INC.
By:
--------------------------------------
Name:
Title:
14
EXHIBIT A
OWNERSHIP PERCENTAGES
---------------------------------------------------------------------------------
NUMBER OF
---------
EMPLOYEE/SHAREHOLDER EXCHANGEABLE SHARES OWNERSHIP PERCENTAGE
-------------------- ------------------- --------------------
----------------------------------------------------------------------------------
Xxxxxxxx Xxxxx 560,286 80.6%
---------------------------------------------------------------------------------
Xxxx Xxxxx 33,812 4.9%
---------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx 31,397 4.5%
---------------------------------------------------------------------------------
Xxxxxxx Xxxxx 967 0.1%
---------------------------------------------------------------------------------
Xxxx Xxx 8,695 1.3%
---------------------------------------------------------------------------------
Xxxxxxx Xxxxxx 8,695 1.3%
---------------------------------------------------------------------------------
Xxxxxxx Xxxxx 8,695 1.3%
---------------------------------------------------------------------------------
Nahla Rashad 8,695 1.3%
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
NUMBER OF XXXXXX
----------------
EMPLOYEE/SHAREHOLDER COMMON STOCK OWNERSHIP PERCENTAGE
-------------------- ------------ --------------------
---------------------------------------------------------------------------------
Xxxxxx Xxxxxx Initially: 14,859 2.1%
-------------------------------------------------
Within
60 days: 18,953 2.7%
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TOTAL 695,054 100%
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EXHIBIT B
ADDRESSES OF EMPLOYEE/SHAREHOLDERS
----------------------------------------------------------------------
THE VENGROWTH INVESTMENT FUND INC. 000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
----------------------------------------------------------------------
XXXXXXXX XXXXX 000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
----------------------------------------------------------------------
XXXX XXXXX 00 Xxxxxx Xxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxx
X0X 0X0
----------------------------------------------------------------------
XXXXXXXX XXXXXXX 00 Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxx
X0X 0X0
----------------------------------------------------------------------
XXXXXXX XXXXX 00 Xxxxxxx Xxxx Xxxxx
#0000
Xxxxxxx, Xxxxxxx
X0X 0X0
----------------------------------------------------------------------
1303949 ONTARIO INC. 00 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
----------------------------------------------------------------------
XXXX XXX 000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
----------------------------------------------------------------------
XXXXXXX XXXXXX 00 Xxxxxxxx Xxxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
----------------------------------------------------------------------
XXXXXXX XXXXX 00 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
----------------------------------------------------------------------
NAHLA RASHAD 0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
----------------------------------------------------------------------
XXXXXX XXXXXX 0000 Xxxxxx Xxxxx Xxx
Xxxxxx, XX 00000
X.X.X.
----------------------------------------------------------------------
