Contract
EXHIBIT
10.14
AGREEMENT
among
AND
MACNOR
CORPORATION
AND
2062540
ONTARIO INC.
JANUARY
20, 2005
THIS
AGREEMENT made effective as of the second day of January 2005 among ASTRIS
ENERGI INC., a corporation incorporated under the laws of Ontario (“AEI”), and
MACNOR CORPORATION, a corporation incorporated under the laws of Ontario
(“Macnor”) and 2062540 Ontario Inc., a corporation incorporated under the laws
of Ontario (“Holdco”).
WITNESSETH
that the parties have agreed as follows:
| 1. |
Definitions
|
As
used
in this agreement:
“AEI
Shares”means 5,000,000 treasury shares in the capital of AEI to be
issued at a price of $0.39 per share for an aggregate consideration of
$1,955,000;
“AEI
Technology”means the fuel cell technology developed by
AEI;
“AEI
Warrants”means 5,000,000 warrants to purchase common shares of AEI
having the attributes set out in Schedule A;
“Applicable
Law”with respect to any Person or property, means all laws, including
Canadian and Czech Republic laws, treaties, statutes, ordinances, judgments,
decrees, injunctions, writs, awards and orders of any Governmental Authority
or
arbitrator (to the extent such Person or property is subject to the jurisdiction
of such Governmental Authority or arbitrator) and rules, regulations, policies
and guidelines (having the force of law), directives, interpretations, licenses,
exemptions and permits of any Governmental Authority, in each case applicable
to
such Person or property within the jurisdiction of such Government
Authority;
“Authorizations”means
all authorizations, consents, waivers, exceptions, permits,
entitlements, licenses, orders, decrees, approvals, exemptions, certifications,
development permits, authorities to construct, licenses or permits to operate,
environmental approvals and other authorizations from, and all registrations,
filings or declarations with or notices to, any Governmental Authority that
relate to or concern in any way or are required for the operation of the
business, whether now existing or hereafter created;
“Business
Day”. means a day which is not a Saturday, Sunday or holiday in the
City of Toronto, Province of Ontario;
“Claims”means
liabilities, losses, obligations, damages, penalties, claims
(including claims involving liability in tort, strict or otherwise), actions,
suits, judgments, costs, expenses and disbursements, whether or not any of
the
foregoing shall be founded or unfounded (including reasonable fees and
out-of-pocket expenses of counsel);
“Closing”means
the completion of the purchase of the Purchased Shares
represented by Instalment Receipts to the public pursuant to the Offering;
“Date
of Closing”means the date on which Closing occurs; and “Time of
Closing” means the time on the Date of Closing at which Closing
occurs;
-2-
“Counsel”means
a barrister or solicitor or firm of barrister and solicitors or
other lawyers in an appropriate jurisdiction retained by any
Party.;
“CVS”means
Corporate Valuation Services Limited;
“Escrow
Agreement”means the escrow requirements and agreement in Schedule B
attached;
“Fairness
Opinion”means the fairness opinion dated January 14, 2005 issued by
CVS opining as to the fairness of the Transaction;
“GAAP”means
accounting principles generally accepted in Canada including
those recommendations set forth in the “CICA Handbook” published by the Canadian
Institute of Chartered Accountants, as amended from time to tune, which are
applicable to the circumstances as of the date of determination;
“Governmental
Authority”means the Government of Canada or the Czech Republic or a
political subdivision thereof and any court or other entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or
pertaining to government in Canada or the Czech Republic or political
subdivision thereof, and any corporation or other entity owned or controlled,
through share ownership or otherwise, by any of the foregoing;
“Interim
Period”means the period between the date of this Agreement and the
Closing Date;
“Misrepresentation”means
with respect to any statement, representation or warranty, any
untruth of any material statement therein or omission to state any matter
necessary to make any material statement therein not misleading in light
of the
circumstances.;
“MOU”means
the Memorandum of Understanding dated September 16, 2004 which is
superseded by this Agreement;
“Person”means
any individual, partnership, corporation, trust, company,
Governmental Authority or any other entity.;
“Shareholder
Approval”means approval of the Transaction which was obtained at a
meeting of shareholders on October 22, 2004;
“SRO”means
Astris s.r.o., a corporation incorporated and existing under the
laws of the Czech Republic;
“SRO
Business”means the business carried on by SRO at the date
hereof;
“SRO
Financial Statements”means the unaudited financial statements of SRO
for each of the years ended December 31, 2002 and December 31, 2003 and the
unaudited financial statements of SRO for the nine months ended September
30,
2004;
“Tax”means
any and all fees (including, without limitation, documentation,
recording, license and registration fees), taxes (including, without limitation,
income, capital, gross receipts, sales, use, property (personal and real,
tangible and intangible), excise and stamp taxes), levies, imports, duties,
charges, assessments or withholdings of any nature whatsoever, general or
special, ordinary or extraordinary, together with any and all penalties,
fines,
additions to tax and interest thereon.
-3-
“Transaction”means
the transaction provided for in this agreement whereby SRO will
become a wholly-owned subsidiary of AEI;
“Purchased
Shares”means all the issued and outstanding shares of Holdco which at
the Date of Closing will be the beneficial owner of the 70% of the issued
and
outstanding share capital of SRO not currently owned by AEI;
“Valuation
Report”means the valuation report of SRO as of June 30, 2004 dated
August 9, 2004 provided to the Special Committee of the board of directors
of
AEI by CVS.
| 2. |
Purpose
|
At
the
date hereof, SRO is owned as to 70% by Macnor (which holds its interest through
Holdco) and as to 30% by AEI. The transfer of SRO to complete the Transaction
shall be satisfied by sale and transfer of all of the Purchased Shares from
Macnor to AEI. The parties have agreed that, to accommodate the future
development and financing of AEI’s business, SRO should become a wholly-owned
subsidiary of AEI with each having access to the other’s technology.
Accordingly, AEI, through a Special Committee of its Board commissioned the
Valuation Report to assist it in determining the value of SRO for purposes
of
consummating the share acquisition by a negotiation between the directors
of AEI
other than Xxxx X. Nor acting on behalf of AEI, and Xxxx X. Nor acting on
behalf
of Macnor. The parties entered into the MOU, which subsequently received
Shareholder Approval on October 22, 2004. As contemplated by the MOU, the
parties are entering into this Agreement to provide for the basis on which
SRO
will become wholly owned by AEI.
| 3. |
Sale
and Purchase
|
At
the
time of Closing Macnor shall sell and AEI shall purchase the Purchased Shares
for a purchase price of $2,209,000 to be paid in the form of the AEI Shares
and
the AEI Warrants and otherwise on the terms and conditions contained in this
Agreement. The AEI Shares, the AEI Warrants and the shares issuable on the
exercise of the AEI Warrants will be subject to the Escrow
Requirements.
| 4. |
Macnor
Representations and
Warranties
|
Macnor
hereby represents and warrants to AEI as follows, it being understood and
agreed
that AEI is relying on such representations and warranties to induce it to
enter
into this Agreement:
| (a) |
Macnor,
Holdco and SRO are each validly subsisting corporations under the
laws of
their respective jurisdictions of incorporation and SRO is duly
registered
to carry on business in each jurisdiction where the failure to
be so
registered could reasonably be expected to have a material adverse
effect
on its business, properties or condition (financial or
otherwise);
|
-4-
| (b) |
Macnor,
Holdco and SRO each has all requisite power and authority to conduct
its
business as is presently being conducted and to execute, deliver
and
perform this Agreement and any documents to which it is or is to
be a
party;
|
| (c) |
the
execution, delivery and performance by Macnor and Holdco of this
Agreement
have been duly authorized by all necessary corporate action and
will
require approval at a meeting of shareholders of SRO and subsequent
registration by the Court of Commerce in Czech
Republic;
|
| (d) |
this
Agreement has been duly executed and delivered by Macnor and Holdco
and
constitutes their legal, valid and binding obligation, enforceable
against
them in accordance with its terms, except as such enforceability
may be
affected by bankruptcy, insolvency, arrangement, moratorium or
other laws
affecting the enforcement of creditors' rights generally and the
fact that
the availability of equitable remedies may be limited by equitable
principles of general application;
|
| (e) |
subject
to clause (c), the execution and delivery by both parties of this
Agreement and the performance by them of their obligations hereunder
do
not require any authorization under any Applicable Law or approvals,
consents or waivers of third parties and are not inconsistent with
and do
not contravene any provision of or constitute a default under (i)
their
constating documents or by-laws, as applicable; (ii) any judgement,
injunction, decree or order applicable to them or any of their
properties;
(iii) any Applicable Law or authorization applicable to it or any
of its
properties; or (iv) any indenture, mortgage, contract or other
instrument
to which they are a party or by which their or their property may
be bound
or affected;
|
| (f) |
to
the best of its knowledge there is no action, suit, investigation
or
proceeding pending (or, to their knowledge, threatened) against
SRO before
any Governmental Authority which, individually or in the aggregate,
if
determined adversely to its interests, could reasonably be expected
to
adversely affect the consummation of the transactions contemplated
hereby
to which it is a party or the performance by it of its obligations
hereunder or thereunder, nor is it in default with respect to any
order of
any Governmental Authority which default could reasonably be expected
to
adversely affect the consummation of the transactions contemplated
hereby
to which it is a party or the performance by it of its obligations
hereunder or thereunder;
|
| (g) |
to
the best of its knowledge the description of the SRO Business and
all
other information with respect to SRO contained in the Valuation
Report,
taken together with the SRO Financial Statements, constitutes full,
true
and plain disclosure of all material facts relating to the SRO
Business
and SRO and does not contain any material Misrepresentation with
respect
to the SRO Business or SRO;
|
| (h) |
Macnor
is the registered owner of the Purchased Shares and will transfer
and
convey good and marketable title to the Purchased Shares to AEI
at the
Time of Closing free and clear of any liens, charges, security
interests
or other adverse claims or encumbrances of any nature
whatsoever;
|
-5-
| (i) |
no
Person has any agreement or option or any right or privilege capable
of
becoming an agreement or option for the purchase of the Purchased
Shares
or to the best of its knowledge for the purchase, subscription
or issuance
of any securities of SRO;
|
| (j) |
the
SRO Financial Statements as of June 30, 2004 provided to prepare
the
Valuation Report have not been amended prior to the date
hereof;
|
| (k) |
other
than capital expenditures subsequent to September 30, 2004, to
its
knowledge:
|
| (i) |
there
has not been any material change (financial or otherwise) in the
business,
affairs, operations, assets, liabilities (contingent or otherwise),
capital or prospects of SRO; and
|
| (ii) |
SRO
has carried on, and will continue to carry on the SRO Business
in the
ordinary course;
|
| (l) |
to
the best of its knowledge SRO has no material liabilities, contingent
or
otherwise other than as disclosed in the SRO Financial Statements
as at
September 30, 2004 or as otherwise disclosed in writing to
AEI;
|
| (m) |
to
the best of its knowledge there is no action, suit, investigation
or
proceeding pending (or, to their knowledge, threatened) against
SRO before
any Governmental Authority which, individually or in the aggregate,
if
determined adversely to the interest of SRO, could reasonably be
expected
to adversely affect the condition, financial or otherwise, of the
SRO
Business or the financial results or condition of SRO;
and
|
| (n) |
Macnor
is not a non-resident of Canada for the purposes of the Income
Tax Act
Canada and regulations made
thereunder.
|
| (o) |
At
the Closing Time, Holdco will have no assets except the Purchased
Shares
and will have no liabilities.
|
| 5. |
AEI
Representations and
Warranties
|
AEI
represents and warrants to Macnor as follows, it being understood and agreed
that Macnor is relying on such representations and warranties to induce them
to
enter into this Agreement:
| (a) |
AEI
is a validly subsisting corporation under the laws of its jurisdiction
of
incorporation and is duly registered to carry on business in each
jurisdiction where the failure to be so registered could reasonably
be
expected to have a material adverse effect on its business, properties
or
condition (financial or otherwise);
|
-6-
| (b) |
AEI
has all requisite power and authority to conduct its business as
is
presently being conducted and to execute, deliver and perform this
Agreement and any documents to which it is or is to be a party;
|
| (c) |
the
execution, delivery and performance by AEI of this Agreement have
been
duly authorized by all necessary corporate action, and do not require
any
consents or approvals other than those which have already been
obtained or
as disclosed in this Agreement;
|
| (d) |
this
Agreement has been duly executed and delivered by AEI and constitutes
its
legal, valid and binding obligation, enforceable against it in
accordance
with its terms, except as such enforceability may be affected by
bankruptcy, insolvency, arrangement, moratorium or other laws affecting
the enforcement of creditors' rights generally and the fact that
the
availability of equitable remedies may be limited by equitable
principles
of general application;
|
| (e) |
the
execution and delivery by it of this Agreement and the performance
by it
of its obligations hereunder do not require any authorization under
any
Applicable Law or approvals, consents or waivers of third parties
and are
not inconsistent with and do not contravene any provision of or
constitute
a default under (i) its constating documents or by-laws, as applicable;
(ii) any judgement, injunction, decree or order applicable to it
or any of
its properties; (iii) any Applicable Law or authorization applicable
to it
or any of its properties; or (iv) any indenture, mortgage, contract
or
other instrument to which either of them is a party or by which
they or
their property may be bound or affected;
and
|
| (f) |
the
AEI Shares and the AEI Warrants will, at their date of issue, be
validly
issued securities of AEI.
|
| 6. |
Survival
|
The
representations and warranties of the parties contained in this Agreement
or any
agreement, certificate or other document delivered pursuant hereto shall
survive
the Closing and shall continue in full force and effect for a period of 12
months, provided that no action may be brought for any Misrepresentation
contained herein after 12 months from the Closing.
| 7. |
Further
Assurances
|
Each
party shall (i) do or cause to be done and execute or cause to be executed
all
such things and documents as may be necessary or advisable in connection
with
the implementation of the transactions contemplated by this Agreement; (ii)
take
all such actions as may be necessary or desirable in order to obtain any
Governmental Authority which may be required in connection with the consummation
of the transactions contemplated by this Agreement; and (iii) with reasonable
promptness notify each of the other parties hereto and their counsel of the
occurrence of any fact or event which may reasonably be expected to hinder
or
prevent the consummation of the transactions contemplated hereby.
-7-
| 8. |
Indemnity
and Escrow Agreement
|
Macnor
hereby indemnifies and saves harmless AEI for any damages suffered by AEI
as a
result of a material breach by Macnor of its representations and warranties
contained in Section 4 of this Agreement, on the following basis:
| (a) |
A
claim for damages by AEI under this Section 8 must be delivered
to Macnor
and proven to the satisfaction of Macnor, acting
reasonably;
|
| (b) |
In
the event a claim is properly made by AEI under this Section 8,
then the
amount of the claim shall be paid to AEI by the release of the
equivalent
amount of the 2,500,000 AEI Shares (the "Escrowed Shares") deposited
into
escrow under the terms of the Escrow Agreement attached hereto
as Schedule
"B". The number of Escrowed Shares required to pay such claim to
AEI shall
be in an amount equal to the damages based on the 5-day average
closing
AEI share price at the time of the claim being
made;
|
| (c) |
In
no event may the amount paid by Macnor in satisfaction of any amounts
owing to AEI under this Section 8 exceed the Escrowed
Shares;
|
| (d) |
No
claim may be made by AEI under this Section 8 unless such claim
has been
received by Macnor prior to January 2, 2006 (the "Escrow Termination").
Any claim received after the Escrow Termination will be null and
void and
of no further force or effect; and
|
| (e) |
All
Escrowed Shares remaining on the Escrow Termination shall be released
to
Macnor, and the indemnity provided under this Section 8 will thereafter
terminate.
|
AEI
hereby indemnifies and saves harmless Macnor for any damages suffered by
Macnor
as a result of a material breach by AEI of its representations and warranties
contained in Section 4 of this Agreement, on the following basis:
| (a) |
A
claim for damages by Macnor under this Section 8 must be delivered
to AEI
and proven to the satisfaction of AEI, acting
reasonably;
|
| (b) |
In
the event a claim is properly made by Macnor under this Section
8, then
the amount of the claim shall be paid to Macnor in AEI shares to
be issued
from treasury, with the amount of AEI Shares issued to Macnor to
be of
equivalent value to the claim, calculated based on the 5-day average
closing AEI share price at the time of the claim being
made;
|
| (c) |
In
no event may the amount paid by AEI in satisfaction of any amounts
owing
to Macnor under this Section 8 exceed 2,500,000 AEI shares;
and
|
| (d) |
No
claim may be made by Macnor under this Section 8 unless such claim
has
been received by AEI prior to January 2, 2006. Any claim received
after
January 2, 2006 will be null and void and of no further force or
effect.
|
-8-
| 9. |
Conditions
Precedent
|
| (a) |
Conditions
Precedent - AEI
|
The
obligations of the Purchaser to complete the transactions contemplated hereby
are additionally subject to the fulfilment, or waiver by it, on or before
the
Time of Closing of each of the following conditions, which the parties
acknowledge are for the exclusive benefit of the Purchaser and may be waived
by
it at any time:
| (i) |
there
shall have been obtained, from all appropriate governmental or
administrative bodies, such licences, permits, consents, approvals,
certificates, registrations and authorizations as are required
to be
obtained by the Vendor to permit the consummation of the Transaction
and
the consummation of the Transaction shall not violate or contravene
any
injunction, decree or order of any Governmental
Authority;
|
| (ii) |
Macnor
shall have given or obtained all required notices, consents and
approvals
required to be obtained from or given to any third parties in order
to
consummate the Transaction; and
|
| (iii) |
all
representations and warranties of Macnor contained herein shall
be
accurate in all material respects as at the Time of Closing and
AEI shall
have received a certificate of Macnor to that effect signed by
Macnor.
|
| (b) |
Conditions
Precedent - Macnor
|
The
obligation of the Vendor to consummate the transactions contemplated hereby
are
conditional upon the fulfilment, or waiver by them, at or before the Time
of
Closing of each of the following conditions precedent which the parties
acknowledge are for the exclusive benefit of the Vendor and may be waived
by it
at any time:
| (i) |
there
shall have been obtained, from all appropriate governmental or
administrative bodies, such licences, permits, consents, approvals,
certificates, registrations and authorizations as are required
to be
obtained by AEI to permit the consummation of the Transaction and
the
consummation of the Transaction shall not violate or contravene
any
injunction, decree or order of any Governmental
Authority;
|
| (ii) |
the
Purchaser shall have given or obtained all required notices, consents
and
approvals required to be obtained from or given to any third parties
in
order to consummate the Transaction;
|
| (iii) |
all
representations and warranties of AEI contained herein shall be
accurate
in all material respects as at the Time of Closing and Macnor shall
have
received a certificate of AEI to that effect signed on behalf of
AEI by an
officer thereof; and
|
| (iv) |
any
regulatory or stock exchange approval for listing of the AEI Shares
or the
common shares of AEI underlying the AEI
Warrants.
|
-9-
| 10. |
Closing
|
The
sale
and purchase of the Purchased Shares shall be completed at the office of
WeirFoulds LLP, Suite 1600, 000 Xxxx Xxxxxx Xxxx at 2:00 PM on January 27,
2005,
at which time and place:
| (a) |
Macnor
shall table for delivery to AEI assignments whereby good and marketable
title to the Purchased Shares free of encumbrance shall be transferred
to
AEI, subject to approval and execution of the transaction by the
shareholders meeting of SRO and participation of AEI in it as outlined
in
4 (c);
|
| (b) |
Macnor
shall table for delivery to AEI a certificate attesting to the
continued
truth and validity of their representations and warranties contained
in
this Agreement;
|
| (c) |
Macnor
shall table for delivery to AEI a release of all claims against
SRO;
|
| (d) |
Macnor
shall undertake to provide any required approvals or consents of
the
government of the Czech Republic to the completion of the Transaction
if
any;
|
| (e) |
AEI
shall table for delivery to Macnor certificates representing the
AEI
Shares and the AEI Warrants;
|
| (f) |
AEI
shall table evidence that Shareholder Approval is still in effect,
and
that the Fairness Opinion is still in force unamended;
|
| (g) |
AEI
shall table for delivery to Macnor a certificate attesting to the
continued truth and validity of their representations and warranties
contained in this Agreement;
|
| (h) |
there
shall be tabled an opinion of Czech counsel on such matters related
to SRO
and the Transaction as AEI may reasonably
request;
|
| (i) |
Macnor
shall deliver the Escrow Agreement, along with the 2,500,000 AEI
Shares to
be deposited thereunder, duly endorsed in blank for transfer;
and
|
| (j) |
there
shall be tabled, executed and delivered such other documents as
may be
appropriate or necessary for the completion of the
Transaction.
|
All
of
such documents shall be in such form as the parties and their counsel may
determine to be appropriate; all deliveries shall be deemed to have been
made
concurrently; and the Transaction shall be deemed to have been completed
only
when all deliveries shall have been made as provided above.
-10-
| 11. |
Termination
|
This
Agreement may be terminated:
| (a) |
at
any time by agreement between the
parties;
|
| (b) |
by
AEI in the event of (i) bankruptcy, insolvency or similar event
affecting
Macnor, or (ii) Macnor being in breach of any of its obligations
which is
not remedied within five days of notice of such default or which
is not
capable of being remedied;
|
| (c) |
by
Macnor and Holdco in the event of (i) bankruptcy, insolvency or
similar
event affecting AEI, or (ii) AEI being in breach of any of its
obligations
which is not remedied within five days of notice of such default
or which
is not capable of being remedied.
|
| 12. |
General
and Miscellaneous
|
| (a) |
Any
notice or other communication required or permitted to be given
hereunder
shall be in writing and shall be effectively given if personally
delivered
or sent by telecopy transmission to the relevant party at the following
address:
|
| (i) |
if
to AEI:
|
| 0000-0 Xxxxxx Xxxxx |
| Xxxxxxxxxxx, Xxxxxxx |
| X0X 0X0 |
| Attention:Xxxxxxx Xxxxxxx, Vice President of Finance |
| Facsimile: (000) 000-0000 |
| (ii) |
if
to Macnor:
|
| 000 Xxxxxxxxx Xxxxx |
| Xxxxxxxx, Xxxxxxx |
| X0X 0X0 |
| Attention: President |
| Facsimile: (000) 000-0000 |
| (iii) |
if
to Holdco:
|
| X.X.Xxx 000, 000 Xxxx Xxxxxx Xxxx |
| Xxxxxxx, Xxxxxxx |
| X0X 0X0 |
| Attention: President |
| Facsimile: (000) 000-0000 |
-11-
| (iv) |
or
to such other address or in care of such other Persons as a party
may from
time to time advise to each other party hereto by notice in writing.
The
date of receipt of any such notice of communication if delivered
or sent
by facsimile during normal business hours on a Business Day at
the place
of receipt shall be deemed to be the date of delivery thereof,
or if
delivered or sent by telecopy after normal business hours on a
Business
Day or on a day other than a Business Day, the date of receipt
shall be
deemed to be the next Business Day.
|
| (b) |
Waiver
- No failure on the part of any party in exercising any
right or
remedy hereunder shall operate as a waiver thereof, nor shall any
single
or partial exercise of any such right or remedy preclude any further
or
other exercise thereof, and no failure on the part of a party to
complain
of any act or failure to act of another party or to declare another
party
in default, irrespective of how long such failure continues, shall
constitute a waiver by such first mentioned party of its rights
hereunder.
No waiver of any provision of this Agreement, including this Section,
shall be effective otherwise than by an instrument in writing dated
subsequent to the date hereof executed by the party entitled to
give such
waiver or its duly authorized representatives. No consent or waiver,
expressed or implied, by a party to or of any breach of default
by another
party in the performance of such other party of its obligations
hereunder
shall be deemed or construed to be a consent or waiver to or of
any other
breach or default in the performance by such other party of the
same or
any other obligations of such other party
hereunder.
|
| (c) |
Amendments
- No variation or amendment of any provision of this Agreement,
including this Section, shall be effective otherwise than by an
instrument
in writing dated subsequent to the date hereof executed by all
parties
hereto, or their duly authorized representatives. Notwithstanding
anything
to the contrary herein.
|
| (d) |
Successors
and Assigns - All of the terms and provisions of this Agreement
shall be binding upon the parties and their respective successors
and
shall enure to the benefit of and be enforceable by the parties
and their
respective successors, provided that none of the parties may assign
any of
their respective rights hereunder without the consent of the other
parties.
|
| (e) |
Rights
and Parties Independent - The rights available to the parties
under this Agreement and at law shall be deemed to be several and
not
dependent on each other and each such right accordingly shall be
construed
as complete in itself and not by reference to any other such right.
Any
one or more and/or any combination of such rights may be exercised
by a
party from time to time and no such exercise shall exhaust the
rights or
preclude another party from exercising any one or more of such
rights or
combination thereof from time to time thereafter or
simultaneously.
|
| (f) |
Currency
- All amounts herein are expressed in Canadian
currency.
|
| (g) |
Time
of Essence - Time is of the essence of this
Agreement.
|
-12-
| (h) |
Governing
Law - This Agreement shall in all respects be governed by and
construed in accordance with the laws in force in the Province
of Ontario
and the laws of Canada in force in the Province of Ontario. There
shall be
no application of any conflict of laws or rules which would result
in the
laws of any other jurisdiction applying to this Agreement or the
construction or interpretation
hereof.
|
| (i) |
Attornment
- The parties hereto
hereby:
|
| (i) |
irrevocably
submit and attorn to the non-exclusive jurisdiction of the Courts
of the
Province of Ontario for all actions, suits or proceedings arising
out of
or in connection with this Agreement or the transactions contemplated
hereby;
|
| (ii) |
waive
all right to object to jurisdiction in any action, suit or proceeding
relative to this Agreement which they may now or hereafter have
by reason
of domicile or otherwise;
|
| (iii) |
waive
any objection to the laying of venue in such Courts of any such
action,
suit or proceeding;
|
| (iv) |
waive
and agree not to plead or claim that any such action, suit or proceeding
has been brought in an inconvenient forum;
and
|
| (v) |
waive
any right they may have to, or to apply for, trial by jury in connection
with any matter arising out of or in connection with this Agreement
or the
transactions contemplated hereby.
|
| (j) |
Severability
- If any provision of this Agreement or portion thereof,
or the
application thereof to any Person or circumstances shall, to any
extent,
be invalid or unenforceable in any jurisdiction, the remainder
of this
Agreement or the application of such provision or portion thereof
to any
other Person or circumstances or in any other jurisdiction shall
not be
affected thereby and each provision of this Agreement shall be
valid and
enforceable to the fullest extent permitted by
law.
|
| (k) |
Third
Party Rights - This Agreement is not intended to and does not
create any rights in favour of any Person other than the parties
hereto
who hold such rights for their own behalf and they have not indicated
and
will not indicate to the contrary to any
Person.
|
| (l) |
Counterparts
and Formal Date - This Agreement may be executed in several
counterparts, each of which when so executed shall be deemed to
be an
original and such counterparts together shall constitute one and
the same
instrument and, notwithstanding the date of execution, shall be
deemed to
bear date as of the date written at the beginning of this
Agreement.
|
-13-
IN
WITNESS WHEREOF the parties have executed this Agreement as of the day and
year
first above written.
Per:
/s/
Xxxxxxx Xxxxxxx
Name:
Xxxxxxx
Xxxxxxx
Title:
Vice
President of Finance
MACNOR
INC.
Per:
/s/
Xxxx
X. Nor
Name:
Xxxx
X.
Nor
Title:
President
2062540
ONTARIO INC.
Per:
/s/
Xxxx
X. Nor
Name:
Xxxx
X.
Nor
Title:
President
-14-
SCHEDULE
A
AEI
Warrants
|
No.
of Warrants
|
Exercise
Price
|
Purchase
Price Allocation
|
|
2,000,000
“A”
Warrants
|
$0.90
|
$124,000
|
|
2,000,000
“B”
Warrants
|
$1.10
|
$
94,000
|
|
1,000,000
“C”
Warrants
|
$1.30
|
$
36,000
|
|
$254,000
|
Each
Warrant will carry the right to purchase one AEI common share at the indicated
Exercise Price for the period commencing on the Closing Date and ending on
the
third anniversary of the Closing Date.
-15-
SCHEDULE
B
ESCROW
REQUIREMENTS
The
AEI
Shares and AEI Warrants will be tabled at Closing, registered as directed
by
Macnor.
50%
of
AEI Shares (2,500,000 Shares) and 0% of AEI Warrants (0 Warrants) will be
held
in escrow after Closing by AEI's counsel for the benefit of Macnor, subject
to
release described below.
The
2,500,000 AEI Share will be released from Escrow on January 2, 2006 unless
there
has been a material misrepresentation or material breach of warranty by Macnor
under the Agreement, resulting in damages suffered by AEI.
In
the
case of material misrepresentation or material breach of warranty by Macnor
before the expiry of the 12-month Escrow Period, the 2,500,000 AEI Shares
or
portion thereof will be returned to AEI in an amount equal to the damages
suffered by AEI from Macnor's material breach, with the number of AEI Shares
calculated based on the 5-day average closing AEI share price at the time
of the
claim being made.
The
limit
of liability of Macnor will be limited to those 2,500,000 AEI Shares held
in
Escrow during the 12-month Escrow Period. No liability will exist in addition
to
those shares held in Escrow or after the expiry of the Escrow
Period.
-16-
ESCROW
AGREEMENT
THIS
ESCROW AGREEMENT made as of the 27th day of January, 2005.
AMONG:
ASTRIS
ENERGI INC., a corporation organized pursuant to the laws of the
Province of Ontario
(hereinafter
called "AEI")
OF
THE FIRST PART
-
and
-
MACNOR
CORPORATION, a corporation organized pursuant to the laws of the
Province of Ontario
(hereinafter
called "Macnor")
OF
THE SECOND PART
-
and
-
2062540
ONTARIO INC., a corporation organized pursuant to the laws of the
Province of Ontario
(hereinafter
called "Holdco")
OF
THE THIRD PART
-
and
-
Rogers,
Campbell, Mickleborough, having an office in the City of Toronto, in the
Province of Ontario
(hereinafter
called the "Escrow Agent")
OF
THE FOURTH PART
WHEREAS:
| A. |
AEI,
Macnor and Holdco have entered into a share purchase agreement
(the
"Purchase Agreement") dated January 20, 2005 for the sale
by Macnor through Holdco of the remaining 70% of the issued and
outstanding shares of Astris s.r.o. ("SRO") not owned by
AEI;
|
-17-
| B. |
All
words and phrases defined in the Purchase Agreement and used in
this
Escrow Agreement but not otherwise defined shall have the meaning
herein
as therein;
|
| C. |
Pursuant
to the terms of the Purchase Agreement, Macnor has agreed to indemnify
AEI
(the "Indemnity") for any breach of its representations
or warranties as contained in the Purchase Agreement, for a period
ending
on January 2, 2006 (the "Escrow Period"), which indemnity
shall be capped at a value equal to 2,500,000 AEI shares received
by
Macnor from AEI on Closing (the "Escrowed Shares"), which
Escrowed Shares shall be released to AEI to the extent and for
any amount
owing under the Indemnity, provided such amount may never exceed
the
Escrowed Shares;
|
| D. |
Macnor
and Holdco have agreed to direct that the Escrowed Shares be deposited
and
held by the Escrow Agent in accordance with and pursuant to the
terms of
this Escrow Agreement pending existence of and verification of
the
veracity of any claims under the Indemnity, failing which the Escrowed
Shares shall be released at the end of the Escrow Period to
Macnor.
|
NOW
THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and the agreements herein contained, it is mutually declared,
covenanted and agreed by and among the parties as follows:
ARTICLE
1
INTERPRETATION
1.1 Definitions.
In this Escrow Agreement, unless the context otherwise requires, all words
and
phrases defined in the Purchase Agreement and used in this Escrow Agreement
have
the same meaning in this Escrow Agreement as in the Purchase Agreement and,
in
addition:
"Escrow
Agreement" means this Agreement;
"Escrowed
Shares" means the 2,500,000 AEI shares as described in Recital C
above;
"Escrow
Amount Release Certificate" means the form of certificate annexed
hereto as Appendix "A"; and
"Termination
Date" means the earlier of (i) the date on which the Escrowed Shares
have been fully released from escrow to AEI to satisfy any claim under the
Indemnity; and (ii) January 2, 2006.
1.2 Headings.
The division of this Escrow Agreement into Articles and Sections
and
the insertion of headings are for convenience of reference only and shall
not
affect the construction or interpretation of this Escrow Agreement. The terms
"this agreement", "this Escrow Agreement", "hereof', "hereunder" and similar
expressions refer to this Escrow Agreement and not to any particular Article,
Section or other portion hereof and include any agreement supplemental hereto
and any schedules annexed hereto. Unless something in the subject matter
or
context is inconsistent therewith, references herein to Articles, Sections
and
paragraphs are to Articles, Sections and paragraphs of this Escrow
Agreement.
-18-
1.3 Number
and Gender. Words importing the singular number only shall include
the plural and vice versa, words importing the masculine gender shall include
the feminine and neuter genders and vice versa, and words importing persons
shall include individuals, partnerships, associations, trusts, unincorporated
organizations and corporations and vice versa.
1.4 Governing
Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of Ontario and the laws of Canada applicable
therein.
1.5 Severability.
In the event that one or more of the provisions contained in this
Escrow Agreement shall be invalid, illegal or unenforceable in any respect
under
any applicable law, the validity, legality or enforceability of the remaining
provisions hereof shall not be affected or impaired thereby. Each of the
provisions of this Escrow Agreement is hereby declared to be separate and
distinct.
1.6 Appendices.
The following is the Appendix annexed hereto and incorporated by
reference and deemed to be part hereof:
Appendix
"A" - Escrow Amount Release Certificate
The
Appendix attached hereto is incorporated herein by reference as fully as
though
contained in the body hereof. Wherever a term or condition, expressed or
implied, of any such Appendix conflicts or is at variance with any term or
condition of this Escrow Agreement, such term or condition of this Escrow
Agreement shall prevail.
ARTICLE
2
ESCROW
AGENT
2.1 Appointment
of Escrow Agent. The Escrow Agent is hereby appointed by AEI,
Macnor and Holdco as escrow agent and custodian for the receipt and holding
of
the Escrowed Shares in accordance with the terms of this Escrow Agreement
and
the Escrow Agent, by its execution and delivery of this Escrow Agreement,
accepts such appointment and agrees to act as escrow agent hereunder and
to hold
the Escrowed Shares received by it hereunder in accordance with the terms
and
conditions set forth in this Agreement.
2.2 Escrow
Agent’s Fees and Expenses AEI shall be solely liable to pay to the
Escrow Agent (i) its fees for acting hereunder as Escrow Agent; and (ii)
the
Escrow Agent’s out of pocket expenses, including without limitation reasonable
legal fees and disbursements incurred as a result of consulting independent
counsel, if necessary, as to its obligations hereunder, and all applicable
taxes
thereon. The fees for the Escrow Agent acting hereunder shall be $1,500 CDN,
plus applicable Goods and Services Tax.
-19-
2.3 Disclosure
by Escrow Agent AEI, Macnor and Holdco acknowledge that the Escrow
Agent has acted as counsel to AEI and Macnor in the past and may, in the
future,
act as counsel to AEI and Macnor. AEI, Macnor and Holdco further acknowledge
their desire for the Escrow Agent to act in such capacity notwithstanding
the
disclosures set out in the first sentence of this Section 2.3. AEI, Macnor
and
Holdco agree that in the event of a dispute under this Agreement, the Escrow
Agent shall have the right to deposit the Escrowed Shares into a court of
competent jurisdiction or the Ontario Superior Court of Justice until such
dispute is resolved to the satisfaction of such court. AEI, Macnor and Holdco
further agree that the execution and delivery and performance by the Escrow
Agent hereunder shall not prevent the Escrow Agent from continuing to act
as
counsel to AEI and Macnor in the future.
ARTICLE
3
DELIVERY
AND DEPOSIT OF THE ESCROWED SHARES
3.1 Delivery
of the Escrowed Shares. The parties acknowledge and agree that the
Escrowed Shares have been delivered by Macnor to the Escrow Agent, duly endorsed
in blank for transfer concurrent with the execution of this Escrow Agreement
by
the parties hereto, to be held or dealt with in accordance with the terms
hereof.
ARTICLE
4
RELEASE
OF ESCROWED SHARES
4.1 Receipt
of Notice of Claim under the Indemnity. The Escrowed Shares shall
be held by the Escrow Agent in escrow under the conditions set out herein
until
such time as AEI has produced evidence satisfactory to Macnor, acting reasonably
and in good faith, verifying the veracity and accuracy of any claim made
under
the Indemnity and, based on such evidence, Macnor and Holdco, acting reasonably
and in good faith, agree to make such payment to AEI under the Indemnity
as may
be required having regard to the terms of the Purchase Agreement and to deliver
an Escrow Amount Release Certificate duly executed by Macnor and Holdco,
upon
receipt of which the Escrow Agent shall forthwith deliver and release to
AEI the
number of Escrowed Shares set out in the said Escrow Amount Release Certificate,
as at the date of the said Certificate, as expressly authorized and directed
therein.
4.2 Automatic
Release. If the Escrowed Shares, or any part thereof,
(collectively, the "Remaining Balance"), has not been otherwise released
by the
Escrow Agent pursuant to Section 4.1 by 5:00 p.m. on the Termination Date,
then
the Escrow Agent shall at 12:00 noon on the following Business Day release
and
deliver the Remaining Balance to Macnor and thereby be forever released from
any
and all obligations or liabilities in respect thereof.
4.3 Greater
Certainty. For greater certainty, notwithstanding any other
provision hereof, the parties acknowledge and agree that the Escrow Agent
shall
not be required under any circumstances whatsoever to release and deliver
any
amount of Escrowed Shares hereunder above and beyond the Escrowed Shares
and no
provision hereof shall be given a contrary intention, interpretation or
effect.
-20-
ARTICLE
5
LIABILITY
AND INDEMNITY
5.1 Liability
of the Escrow Agent. Subject to the provisions of this Escrow
Agreement, the Escrowed Shares, while in the custody of the Escrow Agent,
shall
be and remain at the sole risk and responsibility of the Escrow Agent. The
Escrow Agent shall be liable to Macnor and Holdco for any loss of the Escrowed
Shares.
5.2 Indemnity
in Favour of the Escrow Agent. Macnor and Holdco jointly and
severally hereby covenant and agree to indemnify the Escrow Agent and hold
it
harmless from and against any and all costs, expenses, claims (including
those
from third parties), demands and judgments, and any loss, liability or expense
arising therefrom, including the costs and expenses incurred by the Escrow
Agent
in defending itself against any claim, demand or liability incurred by it
and
arising from the carrying out by the Escrow Agent of its obligations hereunder
except for such claims, demands, judgments, losses, liabilities or expenses
that
are attributable to the gross negligence by the Escrow Agent, its agents
or
employees, or to acts or omissions taken by the Escrow Agent, its agents
or
employees, in bad faith or pursuant to wilful misconduct.
5.3 Limitations
on Duties and Liabilities
| (a) |
The
Escrow Agent shall have no duties except those which are expressly
set
forth herein and shall not be bound by any notice of a claim or
a demand
with respect thereto or any waiver, modification, amendment, termination
or rescission of this Agreement unless received by it in writing
and
signed by all of the parties hereto other than the Escrow Agent
(or, in
the case of a waiver, the party so waiving) and in a form satisfactory
to
the Escrow Agent. No implied duties or obligations of the Escrow
Agent
shall be read into this Agreement. Moreover, the Escrow Agent shall
not at
any time be required to deal with any securities regulatory authority,
securities exchange, transfer agent, or any other comparable entity
with
respect to the Escrowed Shares.
|
| (b) |
The
Escrow Agent shall not be bound in any way by, or have a duty to
inquire
into, any agreement or contract between the parties hereto (whether
or not
the Escrow Agent has any knowledge thereof), and the duties and
responsibilities of the Escrow Agent shall be limited to those
expressly
set forth herein. Nothing herein contained shall impose any obligation
on
the Escrow Agent to see to or require evidence of the registration
or
filing or recording (or renewal thereof) of this Escrow Agreement,
or any
instrument ancillary or supplemental thereto, or to procure any
further,
other, or additional instrument or further assurance.
|
-21-
| (c) |
The
Escrow Agent shall comply with such notices or instructions as
are
provided for in this Escrow Agreement and orders or processes of
any court
having jurisdiction. If any part or all of the Escrowed Shares
held in
escrow by the Escrow Agent is at any time attached or seized under
any
court order or in case any judicial order, judgment or decree shall
be
made affecting this Escrow Agreement or any part hereof, then,
in such
event, the Escrow Agent is authorized to rely upon and comply with
such
order, judgment or decree. The Escrow Agent is not bound to inquire
into
the authority of any persons signing any instructions, directions
or
orders hereunder.
|
| (d) |
The
Escrow Agent may employ such counsel of its choosing as it may
deem
necessary for the proper discharge of its duties
hereunder.
|
| (e) |
The
Escrow Agent shall not be liable for any act or omission to act
hereunder
if taken or omitted by it in good faith. The Escrow Agent shall
also be
fully protected in relying upon any written notice, demand, certificate
or
document which it considers, in good faith, to be
genuine.
|
| (f) |
In
the event of any conflicting demands or claims with respect to
the subject
matter of this Escrow Agreement, including, without limitation,
release of
the Escrowed Shares or any portion thereof, the Escrow Agent shall
have
the right to discontinue all further acts until such conflicts
are
resolved, and the further right to commence or defend any action
or
proceeding for the determination of such conflict, including, without
limitation of the foregoing, a suit or action in interpleader.
In the
event that the Escrow Agent should commence any action to determine
any
such conflict between the parties, including but not limited to
an action
in the nature of an interpleader, the Escrow Agent shall, upon
delivery of
the Escrowed Shares to a court of competent jurisdiction, be ipso
facto
released and discharged from any and all duties and obligations
imposed
upon the Escrow Agent hereunder with respect to the subject matter
of such
action. Notwithstanding the foregoing, the Escrow Agent shall provide
Macnor and Holdco fifteen (15) days written notice prior to commencing
any
such action and during that period shall act reasonably and in
good faith
in facilitating a resolution of any such conflict between the
parties.
|
| (g) |
Each
party hereto (other than the Escrow Agent) waives any claims or
demands
against the Escrow Agent and its principals with respect to all
acts taken
by the Escrow Agent in conformance with this Escrow Agreement.
The Escrow
Agent shall have no duty to take any action other than as specifically
provided for in this Escrow Agreement, and shall have no liability
for any
non-action if such action has been restrained by any order of any
court or
administrative agency or if, in its sole discretion, it determines
that
any such action would violate any law or governmental
regulation.
|
-22-
| (h) |
The
Escrow Agent may, in relation to its obligations hereunder, act
on the
opinion, advice or information obtained from any lawyer or other
expert,
whether retained by the Escrow Agent, Macnor or Holdco, but shall
not be
bound to act upon such opinion, advice or information and shall
not be
held responsible for any loss occasioned for so acting or not so
acting,
as the case may be, except if such loss results from the gross
negligence
or wilful misconduct of the Escrow Agent, and the Escrow Agent
may employ
such agents as may be necessary to properly discharge its duties
and may
pay any reasonable monies required for legal or other advice as
aforesaid.
|
| (i) |
In
the exercise of its rights and duties hereunder, the Escrow Agent
shall
not be in any way responsible for the consequence of any breach
on the
part of a party hereto of any of their respective covenants herein
contained or of any acts of the agents or servants of any of
them.
|
| (j) |
The
Escrow Agent may resign its agency and be discharged from all duties
and
obligations hereunder by giving to AEI and Macnor thirty (30) days’ prior
written notice of its resignation, or such shorter period as such
parties
shall accept as sufficient. If the Escrow Agent resigns its agency
in
accordance herewith, AEI and Macnor shall have the right and obligation
to
appoint a succeeding escrow agent who, upon accepting such appointment,
shall assume all of the obligations and responsibilities and shall
be
entitled to enjoy the benefits and rights of the Escrow Agent hereunder.
If a successor escrow agent is appointed as herein provided, the
Escrow
Agent shall deliver to such successor all of the Escrowed Shares
then in
its possession upon payment of its
fees.
|
ARTICLE
6
MISCELLANEOUS
6.1 Notices.
All payments and communications which may be or are required to be given
by
either party to the other herein shall (in the absence of any specific provision
to the contrary) be in writing and, in the case of payments delivered or
sent by
prepaid registered mail and, in the case of communications, delivered or
sent by
prepaid registered mail or by facsimile transmission (provided sender obtains
evidence or verification of transmission receipt) to the parties at their
following respective addresses:
| (a) |
if
to AEI:
|
| 0000-0 Xxxxxx Xxxxx |
| Xxxxxxxxxxx, Xxxxxxx |
| X0X 0X0 |
| Attention:Xxxxxxx Xxxxxxx, Vice President of Finance |
| Facsimile: (000) 000-0000 |
| (b) |
if
to Macnor:
|
| 000 Xxxxxxxxx Xxxxx |
| Xxxxxxxx, Xxxxxxx |
| X0X 0X0 |
| Attention: President |
| Facsimile: (000) 000-0000 |
| (c) |
if
to Holdco:
|
| X.X.Xxx 000, 000 Xxxx Xxxxxx Xxxx |
| Xxxxxxx, Xxxxxxx |
| X0X 0X0 |
| Attention: President |
| Facsimile: (000) 000-0000 |
| (d) |
if
to Escrow Agent:
|
| Rogers, Campbell, Mickleborough |
| Lawyers ༠ Trade-Xxxx Agents |
| 000 Xxx Xxxxxx |
| 00xx Xxxxx |
| Xxxxxxx, Xxxxxxx |
| X0X 0X0 |
| Attention: Xxxx X. Xxxxxxxxxxxxx |
| Facsimile: (000) 000-0000 |
-23-
and
if
any such payment or communication is sent by prepaid registered mail, it
shall,
subject to the following sentence, be conclusively deemed to have been received
on the third Business Day following the mailing thereof and, if delivered
or so
telecopied, it shall be conclusively deemed to have been received at the
time of
delivery or transmission. Notwithstanding the foregoing provisions with respect
to mailing, in the event that it may be reasonably anticipated that, due
to any
strike, lock-out or similar event involving an interruption in postal service,
any payment or communication will not be received by the addressee by no
later
than the third Business Day following the mailing thereof, then the mailing
of
any such payment or communication as aforesaid shall not be an effective
means
of sending the same but rather any payment must then be sent by delivery,
and
any communication by delivery or facsimile transmission. Either party may
from
time to time change its address hereinbefore set forth by notice to the other
of
them in accordance with this Section.
6.2 Successors
and Assigns. Except as otherwise provided, this Escrow Agreement
shall enure to the benefit of and shall be binding upon the parties hereto
and
their respective successors and assigns.
6.3 Assignability.
This Agreement and the rights and obligations thereunder are not
assignable by any party without the prior written consent of each of the
other
parties hereof.
6.4 Counterparts.
This Escrow Agreement may be executed in several counterparts, each
of
which shall be deemed to be an original and together shall constitute one
and
the same instrument.
6.5 Entire
Agreement. This Agreement constitutes the whole and entire
agreement between the parties hereto with respect to the subject matter
hereof.
6.6 Further
Assurances. Each party hereto agrees from time to time, subsequent
to the date hereof, to execute and deliver, or cause to be executed and
delivered to the others such instruments or further assurances as may in
the
reasonable opinion of any of them be necessary or desirable to give effect
to
the provisions of this Agreement.
6.7 If
Date Falls on a Weekend or a Holiday If either the date or the last
day of a period of time for taking any action under this Escrow Agreement
falls
on a Saturday, Sunday or a legal holiday in the Province of Ontario, such
date
or the last day of such period of time shall be automatically extended to
the
next day which is not a Saturday, Sunday, or a legal holiday in the Province
of
Ontario with the same force and effect as if such extended date or time period
was the original date or time period for taking such action.
-24-
IN
WITNESS WHEREOF the parties have executed this Escrow Agreement on the
date first above written.
Per:
/s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx
Xxxxxxx
Title: Vice
President of Finance
I
have
authority to bind the Corporation.
MACNOR
CORPORATION
Per:
/s/ Xxxx X. Nor
Name: Xxxx
X.
Nor
Title: President
I
have
authority to bind the Corporation.
2062540
ONTARIO INC.
Per:
/s/ Xxxx X. Nor
Name: Xxxx
X.
Nor
Title: President
I
have
authority to bind the Corporation.
ROGERS,
CAMPBELL, MICKLEBOROUGH
Per:
/s/ Xxxx Xxxxxxxxxxxxx
Name:
Xxxx X. Xxxxxxxxxxxxx
Title:
Partner
I
have
authority to bind the Partnership.
-25-
APPENDIX
"A"
ESCROWED
SHARES
RELEASE
CERTIFICATE
TO: **,
as
Escrow Agent
Pursuant
to the escrow agreement (the "Escrow Agreement") made as of the
____ day of January, 2005 among Astris Energi Inc. ("AEI"),
Macnor Corporation ("Macnor"), 2062540 Ontario Inc.
("Holdco") and ** (the "Escrow Agent"), the
undersigned, on behalf of Macnor and 2062540, respectively, hereby irrevocably
authorize, order and direct the Escrow Agent to forthwith release the amount
of
__________________ of the Escrowed Shares to AEI.
All
capitalized terms used herein and not defined herein shall have the meanings
ascribed thereto in the Escrow Agreement.
DATED
this ____ day of ___________________, 200 .
MACNOR
CORPORATION
Per:_____________________________
Name:
Title:
I
have
authority to bind the Corporation.
DATED
this ____ day of ____________________, 200 .
2062540
ONTARIO INC.
Per:_____________________________
Name:
Title:
I
have
authority to bind the Corporation.
