ESCROW AGREEMENT - PROPERTY
THIS AGREEMENT is made as of the 24th day of December, 1992.
BETWEEN:
MONTREAL TRUST COMPANY OF CANADA,
--------------------------------
000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter called the "Escrow Agent")
OF THE FIRST PART
AND:
CONSOLIDATED CAPROCK RESOURCES LTD.,
-----------------------------------
Xxxxx 000, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter called the "Company")
OF THE SECOND PART
AND:
THE UNDERSIGNED SHAREHOLDERS IN
CONSOLIDATED CAPROCK RESOURCES LTD.
(hereinafter individually called "Shareholder"
and collectively called the "Shareholders")
OF THE THIRD PART
WHEREAS:
A. The Shareholder has acquired or is about to acquire shares, of the Company
and has agreed to enter into this Escrow Agreement on the terms and
conditions hereinafter provided;
B. The Escrow Agent has agreed to undertake and perform its duties according
to the terms and conditions hereof.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
aforesaid agreements and the mutual covenants and conditions herein contained
and other good and valuable consideration, the Shareholders jointly and
severally covenant and agree with the Company and the Company and the Escrow
Agent covenant with the other and with the Shareholders jointly and severally as
follows:
1. In this Agreement:
(a) "Exchange" shall mean the Vancouver Stock Exchange;
(b) "lost or alienated" shall mean that circumstance where the
Company has lost, alienated, or has not obtained a good or
marketable title to, or that the Company has abandoned or
discontinued development of, any or all of the property or
asset, or that any or all of the property or asset has become
of little or no value;
(c) "property or asset" shall mean the property or asset
transferred to the Company in whole or in part consideration
for the issuance of the shares referred to in Schedule A
attached hereto;
(d) "Shares" shall mean the shares of each Shareholder set
opposite his name in Schedule A attached hereto, together with
any additional shares issued by way of a dividend paid in
shares which accrues to the Shares, and shall be deemed to
refer to the certificate or certificates representing such
shares;
(e) "Superintendent" shall mean the Superintendent of Brokers of
the Province of British Columbia or any Deputy Superintendent
of Brokers of the Province of British Columbia, or any duly
authorized person performing his duties under the Securities
Act of the Province of British Columbia as from time to time
amended; and
(f) "Superintendent or Exchange" means the Superintendent, if the
shares of the Company are not listed on the Exchange, or the
Exchange if the shares of the Company are listed on the
Exchange.
2. Each Shareholder hereby places and deposits in escrow with the Escrow Agent
the number of Shares of the Company set forth opposite his name in Schedule
A attached hereto.
3. The parties hereby agree that the Shares and the beneficial ownership of or
any interest in them shall not be sold, assigned, hypothecated, alienated,
released from escrow, transferred with escrow, or otherwise in any manner
dealt with except as may be required by reason of the death or bankruptcy
of any Shareholder, in which case the Escrow Agent shall hold the Shares
subject to this Agreement, for whatever person, firm or corporation shall
be legally entitled to be or become the registered owner thereof.
4. The Shareholders hereby direct the Escrow Agent to retain their Shares, and
not to do or cause anything to be done to release the same from escrow or
to allow any transfer, hypothecation or alienation thereof. The Escrow
Agent hereby accepts the responsibilities placed on it hereby and agrees to
perform the same in accordance with the terms hereof and in accordance with
any order or direction of the Superintendent or Exchange, subject only to
any right of appeal against any such order or direction as referred to
herein.
5. If, during the period in which any of the Shares are retained in escrow
pursuant hereto, any dividend, other than a dividend paid in shares of the
Company, is received by the Escrow Agent in respect of Shares, such
dividend shall be paid or transferred forthwith to the Shareholders
entitled thereto. Any shares received by the Escrow Agent by way of
dividend in respect of the Shares shall be dealt with as if they were
Shares hereunder.
6. All voting rights attached to the Shares may at all times be exercised by
the respective registered owners thereof.
7. The Company hereby acknowledges the terms and conditions of this Agreement
and agrees to take all reasonable steps to facilitate its performance.
8. The written consent, order or direction of the Superintendent or Exchange
to a release from escrow of all or part of the Shares shall terminate this
Agreement only in respect to those Shares so released. For greater
certainty this clause does not apply to Shares transferred within escrow.
9. It is understood and acknowledged by the Company and the Shareholder that a
portion of the consideration for the issuance of the Shares is to encourage
the Shareholder to act in the best interests of the Company and, if the
Company becomes successful due in part for the efforts of the Shareholders,
and in such case, and notwithstanding that the property or asset has been
lost or alienated, the Shareholder shall be entitled to maintain their
ownership of the Shares and to a release of the Shares from the terms of
this Agreement from time to time in accordance with the general policies of
the Superintendent or Exchange.
10. In the event that the Company has lost or alienated the property or asset,
the Company and each Shareholder have the express obligation and hereby
agree to declare any such event or the circumstance and the particulars
thereof to the Superintendent or Exchange.
11. Upon the Superintendent or Exchange being advised of the loss or alienation
of the property or asset, they may, at their discretion, make such order or
direction for the cancellation of all or any portion of the Shares as they
deem advisable, provided however, that the fact that the property or asset
has been lost or alienated shall not, in itself, be cause for cancellation
of all or a part of the shares. It shall advise Escrow Agent of such order
or direction and the Escrow Agent, subject to paragraph 15 hereof, shall
cancel such Shares as the Superintendent or Exchange has ordered or
directed.
12. If the Company ceases to own any substantial property or asset whatsoever,
any Shareholder or group of Shareholders of the Company, holding in the
aggregate not less than 5% of the issued and outstanding common shares of
the Company may, by notice in writing directed to the Superintendent or
Exchange, request that the Superintendent or Exchange order or direct that
all or a portion of the Shares be cancelled. Any such shareholder or group
of shareholders shall have the same right of appeal as is set out in
paragraph 15.
13. If the Company ceases to own any substantial property or assets whatsoever
and ceases for a period of three (3) months or more to engage in any
substantial business Activity relating to its normal business, then and in
such case, the Superintendent or the Exchange may make an order or
direction to cancel all or any of the shares.
14. Upon receipt of any order or direction of the Superintendent or Exchange
and subject as herein provided, the Shareholder here irrevocably appoints
the Escrow Agent their attorney for the purpose of cancelling, selling,
assigning or transferring any portion of the Shares for the purpose of
executing any necessary acts of assignment or transfer, and with authority
to substitute one or more persons with like full power.
15. Upon receipt by the Escrow Agent of any order or direction for the
cancellation of any of the Shares, the Escrow Agent shall forthwith advise
the Shareholders and shall not take any steps to cancel such Shares for 90
days from receipt of the order or direction. The Company or any Shareholder
shall have the right to appeal the decision of the Superintendent or
Exchange as if it were a decision of the Superintendent in accordance with
the provisions of the Securities Act of the Province of British Columbia.
16. Any order or direction of the Superintendent or Exchange for the release of
all or any of the Shares from the terms of this Agreement shall be subject
to the same right of appeal by the Company or any shareholder as is set out
in paragraph 15 above and the Escrow Agent shall not release any Shares
from the terms of this Agreement until the expiry of ten (10) days from the
receipt of the order or direction of the Superintendent or Exchange.
17. Nothing herein shall prevent the Company and the Shareholder, or any
successors or permitted assigns of the Shareholder, from amending any
agreement pursuant to which the Shares were originally issued, including
any amendment which substitutes one property or asset for the property or
asset originally blended to the Company, PROVIDED HOWEVER, that any such
amendment or substitution shall be subject to the consent of the
Superintendent or Exchange.
18. Nothing herein shall prevent the Superintendent or Exchange from consenting
to the release of Shares from the terms of this Agreement from time to
time, even though all or a portion of the property or asset for which the
Shares were originally issued or any property or asset substituted
therefor, has been lost or alienated.
19. Notice of any order or direction of the Superintendent or Exchange shall be
given by the Escrow Agent to all persons or parties affected thereby at
their last known registered address.
20. This Agreement may be executed in several parts in the same form and such
parts as so executed shall together form one original agreement, and such
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.
21. Wherever the singular or masculine are used through this Agreement, the
same shall be construed as being the plural or feminine or neuter when the
context so requires.
22. This Agreement shall enure to the benefit of and be binding upon the
parties hereto, their and each of their heirs, successors, administrators,
successors and permitted assigns.
23. The parties hereto agree that in consideration of the premises and of the
Escrow Agent agreeing to act in such capacity, the Shareholders and the
Company do hereby jointly and severally covenant and agree from time to
time and at all times hereafter well and truly to save, defend and keep
harmless and fully indemnify the Escrow Agent, its successors and assigns,
from and against all loss, costs, charges, suits, demands, claims, damages
and expenses which the Escrow Agent, its successors or assigns, may from
time to time hereafter bear, sustain, suffer or be put unto for or by
reason or on account of its acting as Escrow Agent or anything in any
manner relating thereto or by reason of the Escrow Agent's compliance in
good faith with the terms hereof.
24. It is further agreed by and between the parties hereto, and without
restricting the foregoing indemnity, that in case proceedings should
hereafter be taken in any court respecting the Shares, the Escrow Agent
shall not be obliged to defend any such action or submit its rights to the
court until it shall have been indemnified by other good and sufficient
security in addition to the indemnity hereinbefore given against its costs
of such proceedings.
IN WITNESS WHEREOF the parties hereto have executed these presents the
day and year first written above.
THE COMMON SEAL OF )
MONTREAL TRUST COMPANY was hereunto )
affixed in the presence of: ) C/S
)
/s/------------------------------------- )
Authorized Signatory )
/s/_____________________________________ )
Authorized Signatory )
)
/s/------------------------------------- )
Witness )
Xxxxx X. Xxxxxxxx
THE COMMON SEAL OF )
CONSOLIDATED CAPROCK )
RESOURCES LTD was hereunto )
affixed in the presence of: ) C/S
)
/s/------------------------------------- )
Xxxxx X. Xxxxxxxx )
)
/s/------------------------------------- )
Authorized Signatory )
SCHEDULE A
TO THE ESCROW AGREEMENT - PROPERTY
DATED AS OF THE 24th DAY OF DECEMBER, 1992
AMONG MONTREAL TRUST COMPANY,
CONSOLIDATED CAPROCK RESOURCES, LTD.,
AND XXXXX X. XXXXXXXX
Shares held in escrow are subkject to rules, regulations and policies of the
Superintendent of Brokers and the Vancouver Stock Exchange, as may be in effect
during the currency of this Agreement.
Name and Address of Shareholder Number of Shares
-------------------------------- ----------------
Xxxxx X. Xxxxxxxx 194,276
c/o 900 - 0000 Xxxx Xxxxxx
Xxxxxxxxx, X.X.
X0X 0X0
