Exhigit 2.2
ESCROW AGREEMENT
----------------
THIS AGREEMENT made as of July 31, 2000.
A M O N G :
PALLETT VALO
(the "Agent")
- and -
XXXX XXXXXXXXX ("Xxxxxxxxx")
and XXXXXXX XXXXXXXXX ("MacArthur")
(collectively, the "Vendors")
- and -
ARS NETWORKS, INCORPORATED
(the "Purchaser")
- and -
T & T DIESEL POWER LIMITED
(the "Corporation")
RECITALS:
--------
1. Pursuant to a Share Purchase Agreement made as of July 31, 2000
(the "Purchase Agreement"), between the Vendors, the Purchaser and the
Corporation, the Vendors agreed to sell to the Purchaser, and the Purchaser
agreed to purchase from the Vendors, all of the issues and outstanding shares in
the capital of the Corporation, namely 100 Class A common shares registered in
the name of Xxxxxxxxx and 100 Class B common shares registered in the name of
MacArthur (collectively, the "T&T Shares");
2. In satisfaction of part of the purchase price for the T&T Shares,
the Purchaser delivered to the Vendors a promissory note dated July 31, 2000, in
the principal amount of $171,796.00 (the "Note");
3. As security for its obligations under the Note (the "Obligations"),
the Purchase Agreement requires the Purchaser to enter into this Agreement with
the Vendors pursuant to which it will pledge all of the T&T Shares in favor
Vendors;
4. The parties have agreed that the T&T Shares will be deposited with
the Agent in escrow, to be dealt with in accordance with the terms and
conditions of this Agreement;
5. The Agent has acted as the solicitor for the Vendors and the
Corporation in connection with the matters described above;
6. The foregoing representations ant statements of fact are made by
the Vendors and the Purchaser and not by the Agent;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
covenants and agreements contained in this Agreement and other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged by
each of the parties), the parties covenant and agree as follows:
1. DEFINITIONS
-----------
Unless otherwise defined in this Agreement, all capitalized terms shall
have the meaning given them in the Purchase Agreement.
2. GRANT & DELIVERY
----------------
(a) The Vendors and the Purchaser acknowledge and agree that the
Vendors hew (i) delivered the T&T Shares represented by share certificate
numbers CAC-1 and CBC-1 (the "Certificates") to the Agent to be held in escrow
pursuant to the terms of this Agreement; (ii) certificate number CAC-1 is in the
name of Xxxxxxxxx and has been endorsed in blank by Xxxxxxxxx; (iii) share
certificate number CBC-1 is in the name of MacArthur and has been endorsed in
blank by MacArthur; and (iv) the Agent is to deal with the T&T Shares in
accordance with this Agreement.
(b) The Agent hereby accepts delivery of the T&T Shares,
acknowledges receipt of the Certificates and agrees to hold the T&T Shares
escrow and to deal with them in accordance with this Agreement. The Agent also
acknowledges having received a copy of the Purchase Agreement and the Promissory
Note.
(c) The Purchaser hereby grants to the Vendors a security interest
in the T&T Shares, as represented by the Certificates, as security and as a
pledge (which pledge shall create and constitute a continuing security interest
in the T&T Shares) to secure performance of the Obligations.
3. ACKNOWLEDGMENTS
---------------
The Purchase and the Vendors acknowledges and agrees that:
(a) the Agent's responsibility with respect to the T&T Shares is
limited to exercising the same degree of care which the Agent gives to the
Agent's own business papers.
(b) upon the occurrence of an event of default as provided in
section 5, the Vendors shall have all of the rights given to them pursuant to
this Agreement ant all of the rights given to a secured party under the Personal
Property Security Act (Ontario) (the "PPSA"). The Purchaser acknowledges and
agrees that the Vendors or any person related to the Vendors may purchase the
T&T Shares at any sale thereof;
2
(c) the Vendors shall not be bound under any circumstances to
realize upon any of the T&T Shares or to allow any T&T Shares to be sold, and
shall not be responsible for any loss occasioned by any sale of any T&T Shares
or by the retention of or refusal to sell the T&T Shares;
(d) the Vendors shall not be obliged to collect or see to the
payment of dividends on the T&T Shares, but all such dividends, if and when
declared by the Corporation, shall be forthwith paid to the Vendors on account
of the Obligations;
(e) the Vendors, as the attorney irrevocable of the Purchaser, may,
after default, transfer all or any of the T&T Shares and may fill in all blanks
in any transfer(s) of the T&T Shares delivered to the Vendors, and any of the
powers hereby given may be exercised in the name and on behalf of the personal
representative(s) of the Purchaser;
(f) after default, at the request of the Vendors, the Purchaser
shall, at the Purchaser's own expense, execute all such transfers and documents
as may be reasonably required, with all such powers of sale and other necessary
powers as may be expedient in the sole discretion of the Vendors for vesting in
the Vendors or such person or persons as the Vendors may appoint, all and every
of such T&T Shares;
(g) all costs and charges incurred by the Vendors after default
with reference to the T&T Shares or the realization thereof (including all legal
fees on a solicitor and his own client basis and also including the expenses of
taking possession of, protecting and realizing upon any of the T&T Shares) shall
be paid by the Purchaser to the Vendors and shall be a first charge upon the
monies received;
(h) any shares which are substituted for the T&T Shares shall be
held by the Vendors and the Agent subject to the same terms and conditions and
with the same powers and authorities as are hereby declared and conferred;
(i) if any payment on account of the Obligations is made to the
Vendors, the Vendors shall not by reason thereof be required to surrender any of
the T&T Shares pledged;
(j) any written notice given to the Purchaser shall be sufficiently
given if delivered to the Purchaser at the address set out in the Share Purchase
Agreement as the address to which notices may be delivered to the Purchaser;
(k) prior to default, the Purchaser shall be entitled to act as a
shareholder of the Corporation and may, without limitation, vote the T&T Shares,
sign shareholder resolutions and after default the Vendors shall be entitled to
exercise such rights and to cause the T&T Shares to be registered in the
Vendors' names;
(l) the Vendors shall not be obliged to exhaust the Vendors'
recourse against any other security or T&T Shares which the Vendors may hold
before realizing on or otherwise dealing with the T&T Shares in such a manner as
the Vendors considers desirable;
(m) the Vendors may grant time, renewals, extensions, indulgences,
releases and discharges to, may take T&T Shares from and give the same and any
and all existing T&T Shares up to, may abstain from taking T&T Shares from, or
from
3
perfecting T&T Shares of, may accept compositions from, may otherwise deal with
all other persons (including 834) and T&T Shares (including part of the T&T
Shares hereby pledged), as the Vendors may see fit, without prejudice to the
right of the Vendors to hold, deal with and realize on the T&T Shares pledged
hereunder to the Vendors in any manner which the Vendors considers desirable;
(n) the Purchaser hereby waive all of their rights under the PPSA
to compel the Vendors to sell the T&T Shares if the Vendors exercise their
rights in section 7(ii).
4. OTHER SECURITY
--------------
The T&T Shares pledged to the Vendors pursuant to this Agreement are in
addition to and not in substitution for any other security held by the Vendors
and shall not suspend the fulfillment of, or affect the rights, remedies and
powers of the Vendors in respect of any other security held by the Vendors.
5. EVENTS OF DEFAULT
-----------------
The following shall be events of default under this Agreement:
(a) the Purchaser failing to observe and perform the terms of the
Promissory Note;
(b) the Purchaser committing an act of bankruptcy, becoming
insolvent, making an assignment or bulk sale of the Purchaser's assets, filing a
notice of intention or proposal in accordance with the Bankruptcy and Insolvency
Act (Canada) or otherwise proposing a compromise or arrangement to the
Purchaser's creditors;
(c) any proceeding being taken to have the Purchaser declared
bankrupt or to have a receiver appointed of any part of the T&T Shares or any
encumbrancer taking possession of any part thereof; or
(d) any execution, sequestration, extent or any other process of
any court becoming enforceable against the Purchaser or any distress or
analogous process being levied upon the T&T Shares or any part thereof.
6. RIGHTS ON DEFAULT
-----------------
Without limiting any of the other provisions of this Agreement, if the
full amount owing under the Promissory Note is not paid to the Vendors on the
date specified in the Promissory Note (the "Payment Date"), then the Vendors
shall have 10 Business Days following the Payment Date to advise the Purchaser
in writing that the Vendors are electing to terminate the Transaction, in which
case:
(a) the T&T Shares shall be released from escrow and returned to
the Vendors; and
4
(b) the Vendors shall be entitled to retain the payment made by the
Purchaser to the Vendors pursuant to section 2.2(a) of the Purchase Agreement
and any amounts paid under the Note, but shall return the ARS Shares to the
Purchaser; and
(c) the Transaction shall be deemed to have never occurred, except
for the Vendors' to retain the monies referred to in section 6(b).
7. VENDORS' RIGHT TO TERMINATE
---------------------------
If on July 31, 2001 (the "Anniversary Date"):
(a) the Purchaser fails to deliver to the Vendors an unqualified
opinion from the Purchaser's U.S. lawyers, in form and content satisfactory to
the Vendors and its lawyers (both acting reasonably), stating that the shares of
the Purchaser which are of the same class as the ARS Shares are freely tradable
to the public without restriction; or
(b) those shares of the Purchaser which are of the same class as
the ARS Shares are trading on the Nasdaq for a price of less than $1.00 U.S. per
share,
then the Vendors shall have 10 Business Days following the occurrence of
Anniversary Date to advise the Purchaser in writing (the "Election Notice") that
the Vendors require the Purchaser to purchase the ARS Shares for the sum of
$1.00 U.S. per share, in which case such purchase shall be completed within 5
Business Days following the Vendors delivering the Election Notice to the
Purchaser by the Purchaser delivering a certified cheque or bank draft for
$200,000.00 (U.S.) to the Vendors, whereupon the Vendors shall deliver to the
Purchaser the share certificates representing the ARS Shares endorsed in blank
for transfer. Upon the completion of such purchase, the T&T Shares shall be
released to the Purchaser from escrow. If the Purchaser fails to make such
payment within such 5 Business Day period, then the Vendors shall have 10
Business Days to advise the Purchaser in writing either that:
(i) the Vendors are electing to retain the ARS Shares, in
which case the T&T Shares shall be released to the Purchaser from escrow; or
(ii) the Vendors are electing to terminate the Transaction, in
which case:
(A) the T&T Shares shall be released from escrow and
returned to the Vendors; and
(B) 28 the Vendors shall be entitled to retain the
payment made by the Purchaser to the Vendors pursuant to section 2.2(a) of the
Purchase Agreement, but shall return the ARS Shares to the Purchaser, the Note
(if outstanding) and any portion of the Principal Amount (as defined in the
Note) which the Purchaser may have paid to the Vendors.
If the Vendors fail to advise the Purchaser of their election within
such 10 Business Day period, then they shall be deemed to have elected to retain
the ARS Shares, in which case the T&T Shares shall be released to the Purchaser
free of the terms of this Agreement.
5
8. LIMITATIONS ON THE PURCHASER AND THE PURCHASER
----------------------------------------------
Until such time as the T&T Shares are released from the escrow
arrangements contemplated by this Agreement:
(a) one of the Vendors shall be entitled to be a director of the
Corporation, who shall initially be Xxxxxxxxx, and the Purchaser shall cast such
votes as are necessary to have such person elected as a director of the
Corporation. Xxxxxxxxx and MacArthur may replace Xxxxxxxxx as a director with
MacArthur upon written notice, signed by both of them, to the Purchaser;
(b) the Corporation shall not engage in or undertake any of the
following matters unless the Vendors' nominee (who shall be required to act
reasonably and in good faith) on the Corporation's board of directors consents
to same:
(i) the fixing or changing of any salary, bonus or other
compensation to be paid to any director or to any employee if such employee does
not deal at arm's length with the Purchaser;
(ii) the entering into of any contract between the Corporation
and any person, firm or corporation not dealing at arm's length with the
Purchaser or its Affiliates, or the making of any payment to any such person,
firm or corporation, unless such payment is made pursuant to a contract existing
prior to the date of this Agreement;
(iii) the declaration or payment of any dividend or
distribution to any shareholder of the Corporation;
(iv) the acquisition or disposition by the Corporation of
interests in other enterprises;
(v) the purchase, sale, mortgage or lease by the Corporation
of any real property;
(vi) the borrowing of money by the Corporation or the granting
of mortgages, security interests or other encumbrances in the Corporation's
assets;
(vii) the guarantee by the Corporation of the debts of any
other person, firm or corporation;
(viii) the issuance of any shares out of the Corporation's
authorized capital, or the creation of any obligations, charges, options or
debts convertible into such shares;
(ix) any action or transaction not in the ordinary course of
the business of the Corporation;
(x) the sale, lease, exchange or other disposition of the
majority of the Corporation's assets, other than in the ordinary course of the
Corporation's business;
6
(xi) the filing of Articles of Amendment or Articles of
Amalgamation;
(xii) the dissolution, liquidation or winding-up of the
Corporation;
(xiii) purchase, redeem or otherwise retire any of its shares;
(xiv) permit any withdrawals by or on behalf of the Purchaser;
(c) the Purchaser shall not mortgage, charge, pledge, hypothecate,
create a security interest in or otherwise encumber any of the T&T Shares or
assign, transfer or convey, or agree or grant an option to assign, transfer or
convey legally, beneficially or otherwise any of the T&T Shares.
9. ENDORSEMENT OF T&T SHARES
-------------------------
(a) Intentionally Deleted.
(b) The Purchaser shall endorse in blank forms of assignment in
respect of the T&T Shares, and deliver such forms of assignment to the Agent
contemporaneously with the Purchaser's execution of this Agreement.
10. COPY OF AGREEMENT
-----------------
The Purchaser acknowledges having received a signed copy of this
Agreement, the Purchase Agreement and the Note.
11. PERFECTION OF SECURITY INTEREST
-------------------------------
The Purchaser acknowledges and agrees that the Vendors may perfect
their security interest hereby granted under the terms of the PPSA by
registration of a financing statement and by the Agent's possession of the T&T
Shares. Any release of possession of the T&T Shares by the Agent shall not
discharge the security interest of the Vendors in the T&T Shares, unless all
monies under the Note have been fully paid.
12. SHAREHOLDER DECLARATION
-----------------------
The Purchaser, being the sole shareholder of the Corporation, hereby
declares that in accordance with the Business Corporations Act (Ontario):
(a) the powers and discretions of the directors of the Corporation
to consent to the transfer of the issued and outstanding shares in the capital
of the Corporation, including, without limitation the T&T Shares, is hereby
restricted to the fullest extent permitted by law and the directors are hereby
relieved of their duties and liabilities in connection therewith; and
(b) the Purchaser shall have the sole right, power, discretion and
authority to consent to the transfer of the issued and outstanding shares in the
capital of the Corporation, including, without limitation, the T&T Shares.
7
Without in any way limiting the provisions of this Agreement, the
Purchaser hereby consents to any transfer of the T&T Shares made in accordance
with this Agreement and the Vendors are hereby irrevocably appointed the lawful
attorney and proxy of the Purchaser for the purpose of providing any further
consent or authorization which may be required from time to time to give effect
to the provisions of this Agreement, including, without limitation, the transfer
of the T&T Shares. The within declaration may not be revoked by the Purchaser
during the currency of this Agreement without the prior written consent of the
Vendors, which consent may be unreasonably and arbitrarily withheld.
13. RELEASE OF THE T&T SHARES
-------------------------
Upon a party (other than the Agent) becoming entitled to receive the
T&T Shares in accordance with the terms of this Agreement (the "Receiving
Party"), the Receiving Party shall be to provide the Agent with:
(a) a written notice (a "Disposition Notice") instructing the Agent
to deliver the T&T Shares to the Receiving Party; and
(b) a statutory declaration (the "Declaration") stating that the
Receiving Party is entitled to receive the T&T Shares in accordance with the
terms of this Agreement.
Upon receiving the Disposition Notice and the Declaration, the Agent
shall promptly send a copy of the Disposition Notice and the Declaration to the
other party (the "Other Party") and advise the Other Party that the agent will
release the T&T Shares to the Receiving Party on the tenth day following the
date that the Other Party receives such written advice from the Agent unless
within such 10 day period the Other Party delivers a written notice (a "Refusal
Notice") to the Agent instructing the Agent not to release the T&T Shares. If
the Agent receives a Refusal Notice within such 10 day period, the Agent will
continue to hold the T&T Shares in accordance with this Agreement until such
time as the Agent receives:
(i) a written direction signed by the Purchaser and the
Vendors directing the Agent to deliver the T&T Shares to such person(s) as
specified in such written direction; or
(ii) an order from a court of competent jurisdiction directing
the Agent to deliver the T&T Shares to such person(s) as specified in such court
order.
If the Agent does not receive a Refusal Notice within such 10 day period, then
the Agent shall be entitled to release the T&T Shares to the Receiving Party
without further obligation or liability to the Other Party.
14. TERMS OF AGENT'S APPOINTMENT
----------------------------
The acceptance by the Agent of its appointment as trustee is subject to
the following:
(a) the Agent's only duties and obligations in respect of the T&T
Shares are those which are expressly set out in this Agreement;
8
(b) the Agent shall not be responsible for any error in judgment or
for any act dose or step taken or omitted by it in good faith or for any
mistake, in fact or law, or for anything which it may do or refrain from doing
in connection herewith, except arising out of its own gross negligence or
willful misconduct;
(c) the Agent shall have the right to consult with and obtain
advice, at the joint and several expense of the Vendors and the Purchasers, from
legal counsel appointed by it in the event of any question as to any of the
provisions of this Agreement or its duties under this Agreement and it shall
incur no responsibility and it shall be fully justified and protected in acting
in good faith in accordance with any opinion or instruction of such counsel;
(d) upon the Agent complying with its obligations under this
Agreement, as the case may be, the Agent shall be released and discharged from
its obligations under this Agreement and shall have no further responsibility
towards the other parties;
(e) the Agent shall be entitled to rely on any written notice,
certificate or written document furnished to it, not only as to its due
execution and validity, but also as to the truth of any information contained
therein so that the Agent shall not be required to take any steps to satisfy
itself whether or not the contents thereof are true and correct; and
(f) the Agent shall be entitled to fees and to reimbursement for
out-of-pocket expenses (the "Escrow Fees") for carrying out its duties hereunder
and the Vendors and the Purchaser shall be jointly and severally liable for the
payment of the Escrow Fees. The Escrow Fees (excluding out-of-pocket expenses)
shall be a minimum of $650.00 and, to the extent that the Agent spends more than
2 hours in connection with exercising its rights and duties under this
Agreement, the Escrow Fees (excluding out-of-pocket expenses) shall be
calculated at the rate of $325.00 per hour.
15. INDEMNIFICATION OF AGENT
------------------------
In the absence of fraud or a willful act or omission in bad faith, or
gross negligence, the Agent shall not liable for any loss or damage suffered by
any person, directly or indirectly, by reason of the performance of or the
failure to perform any action required under this Agreement. The Vendors and the
Purchaser jointly and severally agree to indemnify and save harmless the Agent
from any and all claims, losses, damages (direct, indirect, consequential or
otherwise), suits, judgments, causes of action, legal proceedings, executions,
demands, penalties or other sanctions of every nature and kind whatsoever,
whether accrued, actual, contingent or otherwise and any and all costs arising
in connection therewith, including, without limitation, legal fees and
disbursements on a solicitor and his own client basis (including, without
limitation, all such legal fees and disbursements in connection with any and all
appeals) arising out of or in connection with its acting as escrow agent
pursuant to this Agreement.
16. REPLACEMENT OF THE AGENT
------------------------
(a) The Vendors and the Purchaser may at any time jointly replace
the Agent by delivering to the Agent written notice setting out such appointment
signed by the Vendors and the Purchaser and the new escrow agent. Upon receipt
such of notice, and subject to the payment of all Escrow Fees, the Agent shall
deliver the T&T Shares to the new escrow agent.
9
(b) The Trustee may resign at any time upon giving the Purchaser
and the Vendors not less than 30 days written notice (the period of time
specified in such notice being called the "Notice Period"). During the Notice
Period, the Purchaser and the Vendors shall endeavor to mutually agree upon a
successor escrow agent (the "Successor"). If the parties:
(i) agree upon a Successor within the Notice Period, they shall
both advise the Agent in writing of the name and address of the Successor and
the Agent shall transfer the Certificates and assignments to the Successor who,
upon accepting same, shall, in the absence of an agreement to the contrary, be
deemed to be bound by and have the benefit of this Agreement as if it were the
Agent; or
(ii) fail to agree upon a Successor within the Notice Period,
then the Agent shall deliver the Certificates and assignments to the Purchaser's
Ontario solicitors who, upon accepting same, shall, in the absence of an
agreement to the contrary, be deemed to be bound by and have the benefit of this
Agreement as if it were the Agent, whereupon the Agent shall be discharged from
any further duties and liability under this Agreement.
17. RIGHT TO CONTINUE TO ACT
------------------------
Nothing in this Agreement shall be deemed to prevent or limit the
Agent, while continuing to serve as escrow agent under this Agreement, from
acting as counsel to the Vendors in any matter, including, without limitation,
proceedings arising out of the Purchase Agreement, the Note, this Agreement or
any other agreement or document exchanged on the Closing of the Transaction.
18. GENERAL CONTRACT TERMS
----------------------
(a) RECITALS - The Vendors and the Purchaser represent and warrant
to the other and to the Agent that the recitals set out above are true end
correct in substance end fact. The recitals set out above are incorporated as an
integral part of this Agreement.
(b) REMEDIES CUMULATIVE - No remedy herein conferred upon or
reserved in favor of the Vendors shall exclude any other remedy herein or
existing at law or in equity or by statute, but each shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter existing.
(c) ENTIRE AGREEMENT - This Agreement, and those agreements,
promissory notes and other documents referred to in this Agreement, constitutes
the entire agreement between the parties pertaining to the subject matter of
this Agreement and supersedes all prior agreements, understandings, negotiations
and discussions, whether oral or written, of the parties. There are no
representations, warranties or other agreements, whether oral or written,
between the parties in connection with the subject matter of this Agreement
except as specifically set out in this Agreement.
(d) AMENDMENTS - No amendment, supplement, modification, waiver or
termination of this Agreement shall be binding on the parties unless same is in
writing and signed by all of the parties.
10
(e) APPLICABLE LAW - This Agreement shall be construed in
accordance with the domestic laws of the Province of Ontario (other than Ontario
principles of conflicts of law) and the laws of Canada applicable in the
Province of Ontario and shall be traded in all respects as an Ontario contract.
Each of the parties irrevocably attorns to the exclusive jurisdiction of the
courts of the Province of Ontario.
(f) INVALIDITY - If any provision of this Agreement or any part of
any provision of this Agreement is held to be invalid, illegal or unenforceable
by a court of competent jurisdiction, such provision or part shall not affect
the validity, legality or enforceability of any other provision of this
Agreement or the balance of any provision of this Agreement absent such part and
such invalid, illegal or unenforceable provision or part shall be deemed to be
severed from this Agreement and this Agreement shall be construed and enforced
as if such invalid, illegal or unenforceable provision or part had never been
inserted in this Agreement.
(g) NOTICE - Any notice or other communication required or
permitted to be given by this Agreement shall be in writing and shall be
effectively given if (a) delivered personally; (b) sent by prepaid courier
service; (c) sent by registered mail; or (d) sent by prepaid fax, telex or other
similar means of electronic communication and confirmed by mailing the original
document so sent by prepaid mail on the same or following day, in the case of
notice to:
(i) the Vendors at: 00 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxxxxxxx or Xxxxxxx
XxxXxxxxx
Fax Number: 000-000-0000
together with a copy to: Xxxxxx Box
Pallett Valo
00 Xxxxxxxxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxx X0X 0X0
Fax Number: 000-000-0000
(ii) if to the Purchaser: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx XXX 0X0
Attention: Xxxx Xxxxxxxx
Fax Number: 000-000-0000
(iii) Pallett Valo, at Pallett Valo
Suite 1600
00 Xxxxxxxxxxxxx Xxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx, X0X 0X0
Attention: Xxxxxx X. Box
Fax No. 000-000-0000
or at such other address as the party to whom such notice or other communication
is to be given shall have advised the party giving same in the manner provided
11
in this section. Any notice or other communication delivered personally or by
prepaid courier service shall be deemed to have been given and received on the
day it is so delivered at such address, provided that if such day is not a
Business Day such notice or other communication shall be deemed to have been
given and received on the next following Business Day. Any notice or other
communication sent by registered mail shall be mailed in Ontario and, if so
mailed, shall be deemed to have been given and received on the third Business
Day following the date of mailing. Any notice or other communication transmitted
by fax, telex or other similar form of electronic communication shall be deemed
given and received on the day of its transmission provided that such day is a
Business Day and such transmission is completed before 5:00 p.m. on such day,
failing which such notice or other communication shall be deemed given and
received on the first Business Day after its transmission. Regardless of the
foregoing, if there is a mail stoppage or labor dispute or threatened labor
dispute which has affected or could affect normal mail delivery by Canada Post,
then no notice or other communication may be delivered by registered mail. If
there has been a mail stoppage and if a party sends a notice or other
communication by fax, telex or other similar means of electronic communication,
such party shall be relieved from the obligation to mail the original document
in accordance with this section.
(h) BINDING EFFECT - This Agreement shall enure to the benefit of
and shall be binding upon the parties and their respective heirs, executors,
administrators, successors and permitted assigns.
IN WITNESS WHEREOF the parties have executed this Agreement with effect
as of July 31, 2000
PALLETT VALO
Per:
-----------------------
Name: Xxxxxx X. Box
Title: Partner
------------------------------------- ----------------------------
Witness: Name: XXXXXXX XxxXXXXXX
-----------------------------
------------------------------------- ----------------------------
Witness: Name: XXXX XXXXXXXXX
-----------------------------
12
ARS NETWORKS, INCORPORATED
Per:
------------------------
Name:
------------------------
Title:
-----------------------
Per:
------------------------
Name:
------------------------
Title:
-----------------------
T & T DIESEL POWER LIMITED
Per:
------------------------
Name:
------------------------
Title:
-----------------------
Per:
------------------------
Name:
------------------------
Title:
-----------------------
13
