Exhibit 2(3)
ESCROW AGREEMENT
(PERFORMANCE ESCROW AGREEMENT)
AGREEMENT made in triplicate this 4th day of August,
1994, BETWEEN:
MIRABEAU 88 LIMITED, a body corporate incorporated under the
laws of the Province of Alberta. (herein called the "Issuer")
- and -
MONTREAL TRUST COMPANY OF CANADA, a body corporate, duly
authorized to carry on business in the Province of Alberta,
and all Provinces in Canada, (herein called the "Trustee")
- and -
SALAMANDER RESOURCES LIMITED, a corporation incorporated
pursuant to the laws of Hong Kong, (herein called the
"Security Holder")
WHEREAS the Security Holder has provided services (the
"Services" to the Issuer relating to the negotiation of the financing and
acquisition of TrueVision Pty Ltd. ("True Vision") and Display Technologies Pty
Ltd. ("Display");
AND WHEREAS Issuer has issued to the Security Holder an
aggregate of 1,420,000 common shares of the capital stock of the Issuer as
consideration for the Services;
AND WHEREAS in order to comply with the requirements of The
Alberta Stock Exchange, the Security Holder is desirous of depositing in escrow
certain securities in the Issuer owned or to be received by them;
AND WHEREAS the Trustee has agreed to undertake and perform
its duties according to the terms and conditions thereof;
NOW THEREFORE this agreement witnesses that, in consideration
of the sum of One Dollar ($1.00) paid by the parties to each other, receipt of
this sum being acknowledged by each of the parties, the Security Holder
covenants and agrees with the Issuer and with the Trustee, and the Issuer and
the Trustee covenant and agree each with the other and with the Security Holder
as follows:
1. Where used in this agreement, or in any amendment or supplement hereto,
unless the context otherwise requires, "Cash Flow" means net income derived from
the property, as shown on the audited financial statements or verified by the
Issuer's auditors, adjusted by the following add-backs: (i) depreciation, (ii)
depletion, (iii) deferred taxes, (iv) amortization of good will, (v)
amortization of research and development costs.
2. The Security Holder hereby places and deposits in escrow with the Trustee
those of his securities in the Issuer which are represented by the certificates
described in Schedule "A" and the Trustee hereby acknowledges receipt of those
certificates. The Security Holder agrees to deposit in escrow any further
certificates representing securities in the Issuer which he may receive as a
stock dividend on securities hereby escrowed, and to deliver to the Trustee
immediately on receipt thereof the certificates for any such further securities
and any replacement certificates which may at any time be issued for any
escrowed securities.
3. The Parties hereby agree that, subject to the provisions of paragraph 6
herein, the securities and the beneficial ownership of or any interest in them
and the certificate representing them (including any replacement securities or
certificates) shall not be sold, assigned, hypothecated, alienated, released
from escrow, transferred within escrow, or otherwise in any manner dealt with,
without the written consent of The Alberta Stock Exchange (hereinafter
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referred to as the "Exchange") given to the Trustee or except as may be required
by reason of the death or bankruptcy of the Security Holder, in which cases the
Trustee shall hold the said certificates subject to this agreement, for whatever
person, or company shall be legally entitled to become the registered owner
thereof.
4. The Security Holder directs the Trustee to retain their respective
securities and the certificates (including any replacement securities or
certificates) representing them and not to do or cause anything to be done to
release them from escrow or to allow any transfer, hypothecation or alienation
thereof, without the written consent of the Exchange. The Trustee accepts the
responsibilities placed on it by the agreement and agrees to perform them in
accordance with the terms of this agreement and the written consents, orders or
directions of the Exchange.
5. The Security Holder, before applying to the Exchange for a consent for a
transfer within escrow shall, give reasonable notice in writing, of this
intention to the Issuer and the Trustee.
6. (a) The Exchange will consent to the release from escrow of one share for
each $0.10 of Cash Flow generated by or from the property.
(b) The Exchange will consent to the release from escrow of one share for
each $0.10 received by the Issuer, Display or TrueVision in a payment
of a capital advance pursuant to a license agreement entered into by
any of the above parties.
(c) Any release from escrow under this paragraph 6 shall be made pursuant
to a written application on behalf of the Issuer or the Security
Holders, which application shall be accompanied by evidence of the Cash
Flow and/or capital received, in a form satisfactory to the Exchange.
Application for release may only be made once per year and may only
relate to Cash Flow and/or capital received in
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the preceding fiscal year or the fiscal years of the Issuer since the
last release from escrow pursuant to this agreement, whichever is
greater.
(d) Notwithstanding subparagraph (c) above, the maximum number of shares to
be released from escrow in any year to a Security Holder pursuant to
subpararaph (a) above shall be one-third of the original number of
shares held in escrow on behalf of the Security Holder.
7. A release from escrow of all or part of the escrowed securities shall
terminate this agreement only in respect to those securities so released. For
greater certainty this paragraph does not apply to securities transferred within
escrow.
8. The Security Holders shall, if a dividend is declared while the Escrowed
Shares or any of them continue to be held in escrow under this Agreement,
renounce and release any right to receive payment of the dividend on the shares
then held in escrow.
9. If the Issuer is wound up and any securities remain in escrow under this
agreement at the time when a distribution of assets to holders of securities is
made by the liquidator, the Security Holder shall assign their right to receive
that part of the distribution which is attributable to the escrowed securities
to the Trustee, for the benefit of, and in trust for the persons and companies
who are then holders of free securities in the Issuer rateably in proportion to
their holdings.
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10. (a) In the event that the Issuer has lost, alienated or has not obtained a
good or marketable title to, or has abandoned or discontinued
development of, any or all of the aforesaid property which was or
formed part of the consideration for which the aforesaid securities
were issued, or that any or all of the said property has become of
little or no value, the Issuer shall declare the occurrence of that
event, with full particulars thereof, to the Exchange by a resolution
of its directors, and if the Security Holder is a director of the time
of such an occurrence, the Security Holder hereby agrees to cause such
resolution to be passed and certified to the satisfaction of the
Exchange.
(b) The Security Holder agrees with the Issuer and the Trustee that in the
event of any such loss, alienation, failure to acquire title, or of
such abandonment or discontinuance of development or diminution of
value, the securities held in escrow shall not be cancelled or released
from escrow, in whole or in part, except with the consent of the
Exchange.
(c) The Exchange may, in its sole discretion, having regard to the number
and value of the securities issued for the property, the value of the
property as ultimately established and such other circumstances as it
may consider relevant, determine the number of securities to be
cancelled or released and shall communicate its decision in writing to
the Trustee. If the Exchange determines that less than all the
securities then held in escrow shall be cancelled or released, the
securities to be cancelled or released shall be taken rateably from the
escrowed security holding of each of the Security Holders subject to
this agreement at the time of that the
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Exchange directs such shares to be cancelled or released, unless the
Exchange otherwise directs or the Security Holders, with the consent of
the Exchange, otherwise agree in writing.
(d) On receipt of the Trustee of a determination to cancel, each of the
Security Holders subject to this agreement of such a determination,
shall tender the required number of escrowed securities to the Issuer
by way of gift for cancellation and, the Issuer shall thereupon take
the necessary action, by way of reduction of capital or otherwise, to
cancel them, and the certificates for these securities shall be
delivered up for cancellation by the Issuer's transfer agent.
(e) The Security Holder undertakes and agrees to vote and cause to be voted
its securities in a manner consistent with the terms, conditions and
intent of this agreement in relation to the aforesaid gifting back of
securities for cancellation.
11. Notwithstanding paragraphs 6 and 10, any shares remaining in escrow on the
fifth anniversary of the date of this agreement, unless otherwise exempted in
writing by the Exchange, shall be cancelled by the Trustee within six (6) months
of the said fifth anniversary.
12. All voting rights attached to the escrowed securities shall at all times be
exercised by the respective registered owners thereof.
13. The Security Holder and the Issuer hereby agree to and do hereby release and
indemnify and save harmless the Trustee from and against all claims, suits,
demands, costs, damages and expenses which may be occasioned by reason of the
Trustee's compliance in good faith with the terms hereof.
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14. The Issuer hereby acknowledges the terms and conditions of this Agreement
and agrees to take all reasonable steps to facilitate its performance and to pay
the Trustee's proper charges for its services as trustee of this escrow.
15. If the Trustee shall wish to resign, it shall give at least three (3)
months' notice to the Issuer which may, with the written consent of the
Exchange, by writing appoint another Trustee in its place and such appointment
shall be binding on the Security Holder, and the new Trustee shall assume and be
bound by the obligations of the Trustee hereunder.
16. The covenants of the Security Holders with the Issuer in this agreement are
made with the Issuer both in its own right and as trustee for the holders from
time to time of free securities in the Issuer, and may be enforced not only by
the Issuer but also by any holder of free securities.
17. This agreement may be executed in several parts of the same form and the
parts as so executed shall together constitute one original agreement, and the
parts, if more than one, shall be read together and construed as if all the
signing parties hereto had executed one copy of this agreement.
18. Wherever the singular or masculine is used, the same shall be construed to
include the plural or feminine or neuter where the context so requires.
19. This agreement shall enure to the benefit of and be binding on the parties
to this agreement and each of their heirs, executors, administrators, successors
and assigns.
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IN WITNESS WHEREOF the Issuer and Trustee have caused their respective
corporate seals to be hereto affixed and the Security Holders have hereto set
their respective hands and seals.
MIRABEAU 88 LIMITED
Per:
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Per:
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MONTREAL TRUST COMPANY OF CANDA
Per:
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Per:
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SALAMANDER RESOURCES LIMITED
Per:
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Per:
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SCHEDULE "A"
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To an Escrow Agreement dated the 4th day of August, 1994, and made among
Mirabeau 88 Limited therein called the "Issuer", Montreal Trust Company of
Canada therein called the "Trustee", and a certain security holder of the
Issuer, therein called the "Security Holder"
CERTIFICATE
NAMES OF NUMBER OF NUMBERS OF
SECURITY TYPE OF SECURITIES SECURITIES
HOLDERS SECURITIES ESCROWED ESCROWED
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Salamander Resources Limited ...... Common Shares 1,168,234
