EXHIBIT 4.2
THIS ESCROW AGREEMENT
MADE AS OF
THE 31st DAY JANUARY, 2001.
BETWEEN:
EQUILAR CAPITAL CORPORATION,
("Equilar")
-and-
XXXXXX XXXXXXXX
(the "Shareholder")
-and-
R. XXXXX XXXXXX, ESQ.
(the "Releasor")
-and-
HERITAGE TRUST COMPANY
(the "Agent")
WHEREAS the Shareholder presently owns shares and warrants of Equilar;
AND WHEREAS Equilar is a corporation of the type which is commonly
referred to as a public company;
AND WHEREAS it is the present intention of Equilar to present an
application in due course for the listing of its shares on a suitable stock
exchange (the "Exchange");
AND WHEREAS the Shareholder is cognizant of the fact that a condition
precedent to an original listing on such Exchange may require that certain
escrow provisions be adopted;
AND WHEREAS the Shareholder has agreed that it would be desirable for
it to deposit its respective shares and warrants of Equilar as outlined in
Schedule "A" hereto into a voluntary escrow arrangement, whether an Exchange
listing is achieved or not;
AND WHEREAS the Agent has agreed to undertake and perform its duties
according to the terms and conditions hereof;
NOW THEREFORE this Agreement witnesseth that in consideration of the
covenants contained herein and of the sum of one dollar ($1.00) now paid by the
parties hereto each to the other (the receipt and sufficiency of which sum the
parties do hereby respectively acknowledge each to the other), the Shareholder
jointly and severally covenants and agrees as follows:
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1. DEFINED TERMS
Under this Agreement, the following terms shall have the following
meanings, respectively:
1.1 "Delivery Date" means the 22nd day of January, 2001; and
1.2 "Equilar Shares" means: the common shares without par value in the
capital stock of Equilar; the share purchase warrants of Equilar; and
all or a portion of, as the context requires, of common shares without
par value in the capital stock of Equilar resulting from the exercise
of said share purchase warrants, as outlined in Schedule "A" hereto.
2. DEPOSIT OF EQUILAR SHARES
2.1 The Shareholder hereby places and deposits and agrees and undertakes to
place and deposit in escrow, on or before the Delivery Date, the
Equilar Shares and to deliver or to cause to be delivered to the Agent:
(a) immediately upon the same being issued to the Shareholder
pursuant to the Share Exchange Agreement dated January 22,
2001, any and all certificates evidencing or representing the
Equilar Shares issued to the Shareholder; and
(b) any and all replacement securities or certificates if and when
such are issued or allotted.
2.2 The Shareholder agrees that the Equilar Shares and the beneficial
ownership of or any interest in them and the certificates representing
them (including any replacement certificates) shall not be sold,
assigned, hypothecated, alienated, released from escrow, transferred
within escrow, or otherwise traded, disposed of or dealt with in any
manner, except in accordance with the terms hereof or except as may be
required by reason of the death or bankruptcy of the Shareholder, in
which case the Agent shall hold the said certificates subject to this
Agreement, for whatever person, firm or corporation shall be legally
entitled to be or become the registered owner thereof.
2.3 The Shareholder hereby directs the Agent to retain the Equilar Shares
and the certificates (including any replacement securities or
certificates, as and when issued) representing the same 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 except in
accordance with the terms hereof.
2.4 The Agent hereby accepts the responsibilities placed upon it hereby and
agrees to perform the same in accordance with the terms hereof.
3. NO PARTNERSHIP OR SIMILAR JOINT ENTERPRISE CREATED HEREBY
3.1 The Shareholder and the Releasor have their own independent investment
objectives, and neither of them have made or will make an agreement to
work together with any other owner of any securities of Equilar, toward
a common purpose or objective to control or to attempt to affect
materially the control of Equilar. Accordingly, nothing herein provided
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is intended to create, and the entering into of this Agreement does not
create, any partnership or joint enterprise interest between the
Shareholder and the Releasor or any other party in respect of the
Equilar Shares.
4. RELEASE FROM ESCROW
4.1 In the event that the shares of Equilar shall be called to trade
through the facilities of a suitable stock exchange:
(a) it may be that the express consent, order or direction in
writing of such Exchange must be first had and obtained prior
to the release of any of the Equilar Shares from the terms of
the escrow herein created;
(b) the written consent, order or direction of the Exchange as to
a release from escrow of all or part of the Equilar Shares
shall terminate this Agreement only in respect of those
securities so released and, for greater certainty, this
provision does not apply to securities transferred within
escrow;
(c) it is understood that any such Exchange consents to release
from escrow will be based upon the rules of such Exchange, as
promulgated from time to time; and
(d) the parties hereby agree that the Exchange may, in certain
circumstances including but not limited to the suspension from
trading or de-listing of the issuer by the Exchange, require
that all or any of the securities then in escrow be tendered
to the issuer by way of gift or for cancellation and that:
(i) any such securities shall remain in escrow, subject
to the terms and conditions of this Agreement, until
the securities are fully and effectually canceled or
otherwise transferred for the benefit of the issuer;
and
(ii) where the securities can not be canceled, they shall
be held for the benefit of the issuer by the Agent
and remain in escrow, subject to the terms and
conditions of this Agreement, but they shall not be
voted and any dividends shall be donated back for the
benefit of the issuer.
4.2 Notwithstanding the provisions of section 4.1, the Shareholder does
hereby acknowledge that there is a positive duty incumbent upon it and,
further, that it is in its best interests, to take active steps to
encourage and assist in the development and maintenance of an orderly
market for the securities of Equilar. The Shareholder shall not be
entitled to obtain a release of any of the Equilar Shares from escrow
until 24 months following the date of this Agreement (the "Escrow
Term"), subject to the exercise of discretion granted to the Releasor
under section 4.3 below whereby the Equilar Shares may be released
prior to the expiration of the Escrow Term. Thereafter, subject only to
the requirements of any Exchange, as set out in section 4.1 above, the
Shareholder shall be entitled to receive the Equilar Shares from the
Agent.
4.3 Subject to the requirements of the Exchange, if applicable, the
Releasor may, at his discretion, cause or permit the securities which
are the subject of the escrow herein
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created to be released to the Shareholder prior to the expiration of
the Escrow Term, provided that such discretionary release may not be
caused or permitted by the Releasor to the Shareholder without a pro
rata release being caused or permitted to any other Shareholder which
is a party hereto.
4.4 The Shareholder hereby agrees to and does hereby release and indemnify
and save harmless the Releasor from and against all claims, suits,
demands, costs, damages and expenses which may be occasioned by reason
of the Releasor's compliance in good faith with the terms hereof.
5. TRANSFERS WITHIN ESCROW
5.1 Provided that any necessary consents are first obtained from any stock
exchange through which the Equilar Shares might be traded, and subject
always to relevant securities law, and notwithstanding any other
provision in this Agreement, the Shareholder may sell or transfer
Equilar Shares held in escrow to any other person, firm or corporation
subject to the following conditions:
(a) the purchaser or transferee of the Equilar Shares must execute
a copy of this Agreement and become a party hereto;
(b) the Equilar Shares to be sold or transferred shall remain
subject to the provisions of this Agreement; and
(c) the Agent shall be notified in writing of such sale or
transfer.
6. VOTING AND DIVIDENDS
6.1 Unless contrary to extant securities legislation, the rules of any
stock exchange through which the shares of Equilar might be traded or
otherwise expressly provided herein, nothing in this Agreement shall
affect the right of the Shareholder whose Equilar Shares are held in
escrow pursuant to the terms hereof to:
(a) continue to vote on or to receive all dividends and other
distributions made on said shares; and
(b) receive any dividend in respect of the escrowed securities,
and any such dividend received by the Agent shall be forthwith
paid or transferred to the respective Shareholder entitled
thereto.
7. SUBSTITUTION FOR EQUILAR SHARES HELD IN ESCROW
7.1 Any certificates representing the Equilar Shares or other securities
resulting from any change, classification or reclassification,
subdivision, consolidation, conversion, amalgamation, merger or sale or
transfer of assets as particularized below shall be delivered to and
held by the Agent in place of the Equilar Shares then held by the
Agent, and the provisions in this Agreement shall apply to such
resulting shares or other securities:
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(a) if the Equilar Shares or any of them are changed, classified
or reclassified, subdivided, consolidated or converted into a
different number or class of shares,
(b) if Equilar amalgamates or merges with or into any other body
corporate, trust, partnership or other entity, and
(c) if Equilar transfers its undertaking or assets as an entirety
or substantially as an entirety to another person, firm or
corporation.
7.2 If, while this Agreement is in effect, the Shareholder advises the
Agent that any of the Equilar Shares owned by such Shareholder and then
held by the Agent pursuant to the terms hereof are to be exchanged
pursuant to a merger or an offer made to all of the shareholders of
Equilar for shares of a corporation acquiring, or proposing to acquire,
some or all of the issued and outstanding Equilar Shares, the Agent
shall cooperate to present the same for exchange in accordance with the
instructions received by it from the person for whose account such
Equilar Shares are then held, and certificates representing the
securities so received in exchange shall then continue to be held
subject to the provisions hereof in lieu of the Equilar Shares so sent
for exchange.
8. AGENT
8.1 The Agent shall not be responsible or liable in any manner for the
sufficiency, correctness, genuineness or validity of the Equilar Shares
or the certificates representing the same deposited with it.
8.2 The Agent shall be protected in acting upon any written notice,
request, waiver, consent, receipt, statutory declaration or other paper
or document furnished to it and signed by any of the parties hereto,
not only as to its due execution, validity and effect of its
provisions, but also as to the truth and acceptability of any
information contained therein, which the Agent in good faith believes
to be genuine and what it purports to be.
8.3 Except for acts of negligence or misconduct, the Agent shall not be
liable for any act or step taken or omitted by it in good faith, or for
any mistake of fact or law.
8.4 The Agent may consult with and obtain advice from legal counsel in the
event of any question as to any of the provisions or duties hereunder,
and it shall incur no liability and shall be fully protected in acting
in good faith in accordance with opinion and instructions of such
counsel.
8.5 The Agent shall have no duties except those which are expressly set
forth in this Agreement, and it shall not be bound by any notice of a
claim or demand with respect thereto, or any waiver, modification,
amendment, termination or rescission of this Agreement, unless received
by it in writing and signed by the proper party or parties, and if its
duties herein are affected, unless it shall have given its prior
consent thereto.
8.6 Equilar shall pay all proper fees of the Agent, and shall also
reimburse the Agent for all necessary and proper disbursements made by
the Agent under this Agreement.
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8.7 If the Agent should wish to resign, it shall give at least six months'
notice to Equilar which may, with the written consent of any stock
exchange through which the shares of Equilar might then be trading, by
writing appoint another Agent in its place, and such appointment shall
be binding on the Shareholder, and the new Agent shall assume and be
bound by the obligations of the Agent hereunder. Equilar shall notify
the Shareholder in writing of any such appointment.
8.8 The Shareholder hereby agrees to and does hereby release and indemnify
and save harmless the Agent from and against all claims, suits,
demands, costs, damages and expenses which may be occasioned by reason
of the Agent's compliance in good faith with the terms hereof.
9. ARBITRATION
9.1 If any dispute between the parties to this Agreement arises hereunder,
the parties may submit such dispute to arbitration under the
ARBITRATION ACT (Ontario).
10. GOVERNING LAW
10.1 This Agreement shall be deemed to be made under, and for all purposes
shall be construed in accordance with, the laws of the Province of
Ontario and Canada applicable therein.
11. COUNTERPARTS
11.1 This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which shall be
construed together as one and the same Agreement.
12. SUCCESSORS AND ASSIGNS
12.1 The terms and provisions of this Agreement shall be binding upon and
enure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
13. HEADINGS
13.1 Headings of the sections of this Agreement are inserted for convenience
only and shall not constitute a part hereof.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on
the date indicated above.
SIGNED, SEALED & DELIVERED ) EQUILAR CAPITAL CORPORATION
in the presence of: )
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)
)
)
) per: ______________________________________________c/s
) Xxxx X. Xxxxxxxxx, Secretary
)
)
)
___________________________________________________ ) ______________________________________________________
Witness ) XXXXXX XXXXXXXX
)
)
)
___________________________________________________ ) ______________________________________________________
Witness ) R. XXXXX XXXXXX
)
) HERITAGE TRUST COMPANY
)
)
)
)
) per: ______________________________________________c/s
) Name:
) Title:
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SCHEDULE "A"
SHAREHOLDER SECURITIES
Xxxxxx Xxxxxxxx 2,420,000 common shares
506,000 warrants
