EXHIBIT 6.7
ESCROW AGREEMENT
THIS AGREEMENT made in triplicate as of the 1st day of June, 1994.
AMONG:
ALTAIR INTERNATIONAL GOLD INC.
(herein called the "Issuer")
OF THE FIRST PART
- and -
EQUITY TRANSFER SERVICES INC.
(herein called the "Escrow Agent")
OF THE SECOND PART
- and -
XXXXXX X. XXXXXXXX
C. XXXXXXX XXXXXX
(herein called the "Security Holders")
OF THE THIRD PART
WHEREAS the Security Holders and the Issuer entered into an agreement
dated as of the 21st day of April, 1994 whereby the Security Holders agreed
to sell certain shares of Fine Gold Recovery Systems, Inc. (the "Property")
to the Issuer, the consideration for such Property being at least in part the
allotment of securities in the Issuer to the Security Holders, the Property
and the number of securities and the names of the Security Holders presently
owning or about to receive such securities being respectively and more
particularly described in Schedule "A" attached to and forming part of this
agreement.
AND WHEREAS in order to comply with the requirements of The Alberta
Stock
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Exchange, the Security Holders are desirous of depositing in escrow certain
securities in the Issuer owned or to be received by them;
AND WHEREAS the Escrow Agent 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) paid by the parties to each other, receipt of this sum
being acknowledged by each of the partes, the Security Holders jointly and
severally covenant and agree with the Issuer and with the Escrow Agent, and
the Issuer and the Escrow Agent covenant and agree each with the other and
with the Security Holders jointly and severally as follows:
1. Where used in this agreement, or in any amendment or supplement
hereto, unless the context otherwise requires, the following words
and phrases shall have the following meaning ascribed to them below:
(a) "CASH FLOW" means net income derived from the Property (being the
net income of Fine Gold Recovery Systems, Inc. ("FGR")), as shown
on the audited financial statements or verified by the Issuer's
auditors, adjusted for the following add-backs:
(i) depreciation,
(ii) depletion,
(iii) deferred taxes,
(iv) amortization of goodwill,
(v) amortization of research and development costs.
(b) "DEFERRED EXPENDITURES" means expenditures which have been
verified by the Issuer's auditors or the auditors of FGR and
incurred in exploring, developing or maintaining in good standing
the assets of FGR.
(c) "RELATED PARTY" means promoters, officers, directors, other
insiders of the issuer and any associates or affiliates of the
foregoing.
2. Each of the Security Holders hereby places and deposits in escrow with
the Escrow Agent those of his securities in the Issuer which are
represented by the certificates described in Schedule "A" (the
"Escrowed Shares") and the Escrow Agent hereby acknowledges
receipt of those certificates. The Security Holders agree to
deposit in escrow any further certificates representing securities
in the Issuer which they may
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receive as a stock dividend on securities hereby escrowed, and to
deliver to the Escrow Agent 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 Escrowed Shares and the beneficial ownership of or
any interest in them and the certificates 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 referred to as the "Exchange") given to the Escrow
Agent or except as may be required by reason of the death or
bankruptcy of any Security Holder, in which case the Escrow Agent
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 Holders direct the Escrow Agent to retain the Escrowed
Shares 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 Escrow Agent 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. Any Security Holder applying to the Exchange for a consent for a
transfer within escrow shall, before applying, give reasonable
notice in writing of his intention to the Issuer and the Warranty
Agent.
6. (a) The Exchange will consent to the release from escrow of one share
for each $0.45 of (i) Cash Flow generated by or from the
Property; or (ii) Deferred Expenditures incurred on the assets of
FGR.
(b) Any release from escrow under this paragraph 6 shall be made
pursuant to a written application on behalf of the Issuer or the
Security Holder, which application shall be accompanied by
evidence of the Cash Flow received by or from the Property or
Deferred Expenditures incurred on the assets of FGR in a form
satisfactory to the Exchange. Application for release may only
be made once per year and may only relate to Cash Flow received
or Deferred Expenditures incurred in the preceding fiscal year or
fiscal years of the Issuer since the last release from escrow
pursuant to this agreement, whichever is greater. All shares
released from escrow shall, unless otherwise directed by the
Exchange, be distributed pro rata to all Security Holders.
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(c) Notwithstanding subparagraph (b) above, the maximum number of
shares to be released from escrow in any year to a Security
Holder who is a Related Party shall be one third of the original
number of shares held in escrow on behalf of such Security
Holder.
7. A release from escrow of all or part of the Escrowed Shares 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
Holders shall assign their right to receive that part of the
distribution which is attributable to the escrowed securities to
the liquidator, receiver, in bankruptcy, or like person as the
case may be, 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.
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 business 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 those Security
Holders who are directors from time to time hereby agree to cause
such resolution to be passed and certified to the satisfaction of
the Exchange.
(b) The Security Holders jointly and severally agree with the Issuer
and the Escrow Agent that in the event of any 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 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 Escrow Agent. If the Exchange
determines that less than all the securities then held in escrow
shall
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be cancelled or released, the securities to be cancelled or
released shall be taken rateably from the Escrowed Shares held
by each of the Security Holders, unless the Exchange otherwise
directs or the Security Holders, with the consent of the
Exchange, otherwise agree in writing.
(d) On receipt by the Escrow Agent of a determination to cancel, each
of the Security Holders 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) Each of the Security Holders undertakes and agrees to vote and
cause to be voted their respective 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.
(f) The Exchange may, in its sole discretion, permit the substitution
of natural resource properties for the assets of FGR in
calculating the amount of Deferred Expenditures in paragraph 6.
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 delivered
by the Escrow Agent to the Issuer for cancellation, within 6
months of the said fifth anniversary.
12. All voting rights attached to the Escrowed Shares shall at all times
be exercised by the respective registered owners thereof.
13. The Security Holders and the Issuer hereby jointly and severally agree
to and do hereby release and indemnify and save harmless the
Escrow Agent from and against all claims, suits, demands, costs,
damages and expenses which may be occasioned by reason of the
Escrow Agent's compliance in good faith with the terms hereof; and
upon termination or resignation of the Escrow Agent, or
termination of this agreement, this provision will survive and
continue for the benefit of the Escrow Agent.
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 Escrow Agent's proper charges for
its services as trustee of this escrow.
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15. If the Escrow Agent should wish to resign, it shall give at least two
(2) months' notice to the Issuer which may, with the written
consent of the Exchange, by writing appoint another Escrow Agent
in its place and such appointment shall be binding on the Security
Holders, and the new Escrow Agent shall assume and be bound by the
obligations of the Escrow Agent hereunder.
16. The covenants of the Security Holders with the Issuer in this
agreement are made with the Issuer both in their own right and as
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. In the exercise of its rights, duties and obligations herein, the
Escrow Agent may rely and act upon any resolution, direction,
statutory declaration, opinion, report, notice, certificate or
other paper or document believed by it to have been signed, sent
or presented by or on behalf of the proper parties. However, the
Escrow Agent may in its discretion require reasonable evidence of
the due execution before acting or relying thereon.
18. Notwithstanding any provision contained herein, the Issuer and the
Security Holder agree that if any of the Escrow Agent's fees,
expenses and disbursements are in arrears then the Escrow Agent
reserves the right to withhold the release of any Escrowed Shares
until such fees, expenses and disbursements are paid in full.
19. The Escrow Agent shall not by reason of signing this agreement assume
any responsibility or liability for any transaction between the
Issuer and the Security Holders other than the performance of its
obligations with respect to the Securities held in trust by the
Escrow Agent in accordance with this agreement.
20. Any certificate, opinion, direction, request, instruction or other
communication required or permitted to be given pursuant to this
agreement shall be in writing and shall be deemed to have been
sufficiently given if delivered personally or sent by pre-paid
registered mail addressed to the party at the address shown below:
(a) if to the Issuer:
Altair International Gold Inc.
0000 Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxx
00000
X.X.X.
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(b) if to the Escrow Agent:
Equity Transfer Services Inc.
Xxxxx 000
00 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
(c) if to the Security Holders:
(i) Xxxxxx X. Xxxxxxxx
0000 0/0 X. Xxxxxx Xxxx.
Xxxx Xxx, Xxxxxx
X.X.X. 00000
(ii) C. Xxxxxxx Xxxxxx
0000 Xxxxxx Xxx.
Xxxx, Xxxxxx
X.X.X. 00000
If there is a disruption in the mail service, then delivery shall be
made personally.
21. 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.
22. 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.
23. 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 the Escrow Agent have caused their
respective corporate seals to be hereto affixed and the Security
Holders have hereto set their respective hands and seals.
ALTAIR INTERNATIONAL GOLD INC.
Per: /s/ XXXXX XXXXX (C/S)
----------------------
EQUITY TRANSFER SERVICES INC.
Per: /s/ [NAME ILLEGIBLE]
----------------------
Per: /s/ [NAME ILLEGIBLE] (C/S)
----------------------
SIGNED, SEALED AND DELIVERED by the Security Holders.
)
WITNESS: ) /s/ XXXXXX X. XXXXXXXX
---------------------------
) Xxxxxx X. Xxxxxxxx
)
)
)
WITNESS: ) /s/ C. XXXXXXX XXXXXX
---------------------------
) C. Xxxxxxx Xxxxxx
)
)
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SCHEDULE "A"
To the agreement dated as of the 1st day of June, 1994 and made among Altair
International Gold Inc. therein called the "Issuer", Equity Transfer Services
Inc. therein called the "Escrow Agent", and certain security holders of the
Issuer as noted below, therein called the "Security Holders".
CERTIFICATE
NUMBER OF NUMBER OF NUMBERS OF
NAME OF TYPE OF SECURITIES SECURITIES SECURITIES
HOLDER SECURITIES HELD ESCROWED ESCROWED
------ ---------- ---- -------- --------
Xxxxxx X. Common Shares 5,000 32,500 00502
Xxxxxxxx (1 x 32,500)
C. Xxxxxxx Xxxxxx Common Shares 128,333 617,500 00503
(1 x 617,500)
DESCRIPTION OF PROPERTY
-----------------------
100,000 common shares of Fine Gold Recovery Systems, Inc.
ALTAIR INTERNATIONAL GOLD INC.
INCORPORATED UNDER THE LAWS OF THE PROVINCE OF ONTARIO
[COPY ILLEGIBLE]
-----------------
00502 CUSIP 02136W 10 2
-----------------
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THIS
CERTIFIES "XXXXXX X XXXXXXXX"
THAT
-------------------------------------------------------------------------------
IS THE 32,500
REGISTERED
HOLDER OF
FULLY PAID AND NON-ASSESSABLE COMMON SHARES WITHOUT PAR VALUE IN THE CAPITAL OF
ALTAIR INTERNATIONAL GOLD INC.
[COPY ILLEGIBLE]
DATED JUNE 1, 1994
[COPY ILLEGIBLE]
[NAME ILLEGIBLE] XXXXX XXXXX BY [NAME ILLEGIBLE]
PRESIDENT SECRETARY AUTHORIZED OFFICER
[COPY ILLEGIBLE]
ALTAIR INTERNATIONAL GOLD INC.
INCORPORATED UNDER THE LAWS OF THE PROVINCE OF ONTARIO
[COPY ILLEGIBLE]
-----------------
00503 CUSIP 02136W 10 2
-----------------
-------------------------------------------------------------------------------
THIS
CERTIFIES "C XXXXXXX XXXXXX"
THAT
-------------------------------------------------------------------------------
IS THE 617,500
REGISTERED
HOLDER OF
FULLY PAID AND NON-ASSESSABLE COMMON SHARES WITHOUT PAR VALUE IN THE CAPITAL OF
ALTAIR INTERNATIONAL GOLD INC.
[COPY ILLEGIBLE]
DATED JUNE 1, 1994
[COPY ILLEGIBLE]
[NAME ILLEGIBLE] XXXXX XXXXX BY [NAME ILLEGIBLE]
PRESIDENT SECRETARY AUTHORIZED OFFICER
[COPY ILLEGIBLE]