EXHIBIT 5.15
STOCK POOLING AND ESCROW AGREEMENT
THIS AGREEMENT made as of the 31/st/ day of July, 1999, among XXXXXXXXX.XXX
INC., a corporation under the laws of the state of Nevada (herein called the
"Company"), the persons listed on Schedule A attached hereto (herein called the
"Shareholders") and Owen, Bird, (the "Escrow Agent").
WITNESSES THAT WHEREAS:
A. The Shareholders all hold shares and/or options and warrants to purchase
shares in the capital of the Company, as listed on Schedule A attached hereto,
and have agreed with each other and with the Company to enter into this pooling
and escrow agreement to provide for an orderly disposition of such shares,
options and warrants (the "Pooled Securities").
B. Xxxxx Xxxxx ("Xxxx"), Xxxxx Xxxxxxxx, ("Xxxxx"), Xxxxx Xxxxxxx ("Xxxxx")
and Xxxxxxx XxXxxx ("Xxxx") are senior officers and employees of the Company.
C. The Escrow Agent has agreed to hold and deal with the certificates for the
Pooled Securities in accordance with the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein, the parties hereby agree as follows:
1. Incorporation of Schedules. The schedules and all terms, covenants,
agreements and conditions contained therein are hereby incorporated as an
integral part of this Agreement and each of the Shareholders agrees that he will
be bound all the provisions thereof.
2. Appointment of Escrow Agent. The Shareholders and the Company hereby
appoint the Escrow Agent to hold and deal with the certificates for the Pooled
Securities and to act as his attorney and each hereby releases the Escrow Agent
from all claims arising out of any action or inaction of the Escrow Agent
hereunder except in the event of wilful misconduct or fraud.
3. Deposit of Certificates. Each of the Shareholders herewith delivers to the
Escrow Agent and the Escrow Agent hereby acknowledges receipt of:
a) one or more certificates representing in aggregate the number of the
Pooled Securities shown opposite his name on Schedule A attached
hereto; and
b) three executed Gold Medallion stock powers of attorney with signature
guaranteed by a bank or registered dealer,
to be held and dealt with in accordance with the terms of this Agreement.
4. No Transfers or Liens. Each Shareholder covenants with the other
Shareholders and with the Company that, as long as any of his Pooled Securities
are covered by any provision of
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this Agreement, he will not sell, directly or indirectly, nor grant any security
interest of any nature whatsoever in or transfer any rights whatsoever in any of
such Pooled Securities.
5. Voting and Other Rights. Notwithstanding the deposit of the Pooled
Securities with the Escrow Agent, each Shareholder retains all rights to
dividends, rights on dissolution, statutory rights, voting rights and other
rights associated with the Pooled Securities and all securities into which the
Pooled Securities may be converted or for which they may be exchanged.
6. Reverse Vesting. Xxxx, Xxxxx and Xxxx each agree with the other Shareholders
and with the Company that if he ceases to be a full-time employee of the Company
for any reason whatsoever then the Pooled Securities registered in their names
will be subject to re-purchase by the Company at the price of $0.01 per share in
accordance with the procedure set out in Schedule B. In the event that there is
a change of control of the Company as defined in the Income Tax Act of Canada,
then the terms of this Reverse Vesting provision will have no further effect and
the Company will have no further ability to repurchase any of the shares held by
any of the Shareholders.
7. Pooling. The Shareholders agree that, with the exception of any Pooled
Securities re-purchased by the Company in accordance with Schedule B, all the
Pooled Securities will be retained by the Escrow Agent in pool (the "Pool") and
delivered to the Shareholders only in accordance with the procedure set out in
Schedule C.
8. Release From Pool Subject to Reverse Vesting. If a Pooled Security that is
released from the Pool continues to be subject to the provisions of paragraph 6
then the certificate representing it will not be delivered to the Shareholder
who would otherwise be entitled to it but shall be retained by the Escrow Agent
until released in accordance with Schedule B.
9. Sale After Release. Each Shareholder agrees that if he intends to sell any
shares which have been in the Pool after such shares are released from the Pool
and after such shares are no longer subject to the provisions of paragraph 6
then he will:
a) give written notice of his intention to the secretary of the Company and
to each of the other Shareholders (the "Sale Notice"), including the
number of shares he intends to sell and the lowest price at which he is
prepared to sell them;
b) not sell any such shares for at least 10 business days after giving the
Sale Notice;
c) cooperate with the other Shareholders who wish to sell up to the same
number of shares as specified in the Sale Notice at the same time and to
coordinate such sales such that all Shareholders participating in such
sales are able to sell approximately the same number of shares at the
same time without causing a material change in the share price of the
Company; and
d) in the event that a Shareholder, upon receiving a Sale Notice, desires
to sell a number of shares which is greater than that number in the Sale
Notice, such
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Shareholder will issue a separate sale notice according to the
provisions of this paragraph.
10. The Escrow Agent. The Escrow Agent may at any time deposit all
certificates, stock powers of attorney, notices or other documents held pursuant
to this Agreement ("Documents") into the Supreme Court of British Columbia and
thereafter have no responsibility with respect thereto. The Escrow Agent may
resign its position herein on 30 days notice to the Company and the Escrow Agent
shall deliver all Documents to any replacement escrow agent on written notice
signed by the Company and at least three of the Shareholders provided that the
Escrow Agent shall have a lien on Documents for any unpaid fees or disbursements
reasonably arising in connection with the performance of its duties hereunder.
11. Fees and Indemnity. The Company will pay the reasonable fees and
disbursements of the Escrow Agent in connection with performing its duties and
otherwise arising under this Agreement. The Shareholders and the Company hereby
unconditionally and irrevocably covenant, jointly and severally, to indemnify
the Escrow Agent and save it harmless from all from and against all losses,
suits, claims, damages and expenses arising out of, due to or by reason of or
pursuant to any action or inaction of the Escrow Agent hereunder except in the
event of wilful misconduct or fraud of the Escrow Agent. This indemnity does not
require that the Escrow Agent proceed against or exhaust its remedies against
the Company or any particular Shareholder and shall survive the bankruptcy,
insolvency, dissolution, liquidation or merger of the Company and the
Shareholders or any of them.
12. Notices. To be effective, any notice required or permitted under this
Agreement shall be in writing and delivered, mailed in Canada by first class
pre-paid mail or faxed, as follows:
a) If to the Company:
Xxxxx 000
0000 Xxxxxxxx Xx.,
Xxxxxxx, X.X. X0X 0X0
Fax: (000) 000 0000
Attention: President
b) If to a Shareholder:
To the address for the Shareholder as shown on the Register of Members
of the Company
Fax: to such fax number as each Shareholder may provide to the
Company
c) If to the Escrow Agent:
Xxxx, Bird
Suite 2900 - 000 Xxxxxxx Xx.,
Xxxxxxxxx, XX
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Fax: 000 000 0000
Attention: Xxx Xxxxxxxx
00. Time of the Essence. Time shall be of the essence of this agreement.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia and each of the
parties hereby irrevocably attorns to the exclusive jurisdiction of the courts
of the Province of British Columbia.
15. Interpretation. In this instrument, unless there is something in the
subject matter or the context inconsistent therewith:
a) words importing the singular include the plural and vice versa, words
importing gender include the masculine, feminine and neuter genders
and words importing a person include an individual, a body corporate,
and a partnership, syndicate and any other unincorporated association
of persons;
b) a reference to a paragraph, subparagraph, clause or schedule means
that paragraph, subparagraph or clause in or schedule attached to this
instrument;
c) the words "herein", "hereof", "hereunder", "hereby", "hereto" and
similar expressions refer to this instrument generally and not to any
particular paragraph, subparagraph, clause or other part or division
of this instrument; and
d) the insertion of titles and headings is for convenience of reference
only and shall not affect the interpretation hereof.
16. Enurement. This Agreement shall enure to the benefit of and be binding upon
the Shareholders, the Company and the Escrow Agent and their respective personal
representatives, estates, successors and assigns.
17. Further Assurances. Each of the parties hereby covenants to execute all
further and other documents and instruments and to do all further and other
things that may be necessary to implement and carry out the intent of this
Agreement including without limitation additional Gold Medallion stock powers of
attorney with signature guaranteed by a bank or registered dealer as requested
from time to time by the Escrow Agent.
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18. Amendment. This agreement may be amended only with the unanimous written
consent of the Company, Escrow Agent, and the persons comprising the
Shareholders who remain as employees of the Company.
IN WITNESS WHEREOF the parties hereto have executed this instrument as of
the date first above written.
XXXXXXXXX.XXX INC.
Per: ______________________________
Authorized Signatory
SIGNED, SEALED AND DELIVERED BY )
XXXXX XXXXXXX in the presence of )
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Name ) __________________________________
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SIGNED, SEALED AND DELIVERED BY )
XXXXXXX XXXXXX in the presence of )
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Name ) XXXXXXX XXXXXX
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SIGNED, SEALED AND DELIVERED BY )
XXXXX XXXXXXXX in the presence of )
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Name ) ___________________________________
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SIGNED, SEALED AND DELIVERED BY )
XXXXX XXXXX in the presence of )
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SIGNED, SEALED AND DELIVERED BY )
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ADVANCED FINANCIAL SERVICES INC. THE DROMOND GROUP LTD.
Per:_______________________________ Per:______________________________
Authorized Signatory Authorized Signatory
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SCHEDULE A
SHAREHOLDERS
Name of Shareholder No. of Shares No. of Options and
Warrants
Advanced Financial Services Inc. 576,029 20,000
Xxxx Xxxxxxxx 225,000 0
Xxxxx Xxxxx 200,000 100,000
Xxxxx Xxxxxxxx 0 100,000
Xxxxxxx XxXxxx 312,500 33,333
Xxxxx Xxxxxxx 312,500 33,333
The Dromond Group Ltd. 553,400 0
Totals 2,179,429 286,666
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SCHEDULE B
REVERSE VESTING PROCEDURE
If Xxxx, Xxxxx or Xxxx (any one of which, if applicable, is referred to herein
as the "Departed Employee") ceases to be a senior officer or full-time employee
of the Company for any reason whatsoever then, as of the first day after the
date the Departed Employee's employment ceases ("D"), the Company shall have
automatically be deemed to have purchased and the Departed Employee shall have
automatically be deemed to have sold, as of D and at the price of $0.01 per
share, all his right, title and interest in the number (the "Forfeited Number"
or "FN") of the Pooled Securities determined in accordance with the following
procedures:
1. The maximum that the Forfeited Number can be for a Departed Employee is the
number shown below under the heading No. Shares Subject to Reverse Vesting
("N").
2. If D is earlier than the date shown below under the heading Vesting Start
Date ("VSD") then the FN = N.
3. If D is later than the number of months shown below under the heading
Vesting Period (months) ("m") after VSD then the FN = 0.
4. Otherwise, FN will be determined by the following formula, to the nearest
round number, with the value for D being the number of days after VSD:
FN = N - D/(30*m)* N
No. Shares Vesting
Subject to Reverse Vesting Start Period
Name of Shareholder Vesting Date (months)
Xxxxx Xxxxx 150,000 Sep 1, 1999 27
Xxxxxxx XxXxxx 160,000 May 25, 1999 12
Xxxxx Xxxxxxx 160,000 May 25, 1999 12
5. Each of Xxxx, Xxxxx and Xxxx hereby irrevocably appoints the secretary of
the Company as his attorney for the purpose of executing any instruments of
transfer, waivers and other documents required or expedient to transfer FN
shares to the Company if he becomes a Departed Employee.
6. If a certificate held by the Escrow Agent represents both Pooled Securities
which are subject to the reverse vesting procedure set out in this Schedule
B (the "Reverse Vesting Procedure") and Pooled Securities which are not
subject to the Reverse Vesting Procedure then the Escrow Agent will, upon
request from the relevant Shareholder, split
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such certificate and deliver to the Shareholder certificates for the Pooled
Securities which are not subject to the Reverse Vesting Procedure.
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SCHEDULE C
POOLING PROCEDURE
The Escrow Agent will release certificates representing the Pooled Securities,
or such of them as remain from time to time after reduction thereof pursuant to
Schedule B, from the Pool to the Shareholders as follows:
Shareholder Shares/ Released on
Options 25-May-00 25-Nov-00 25-May-01
Xxxx Xxxxxxxx 225,000 50,000 88,889 86,111
Advanced Financial Services 576,029 100,000 177,778 298,251
20,000 20,000
Xxxxx Xxxxx 200,000 150,000 50,000 -
100,000 50,000 25,000 25,000
Xxxxx Xxxxxxxx 0 0 0 0
100,000 50,000 25,000 25,000
Xxxxx Xxxxxxx 312,500 100,000 177,778 34,722
33,333 16,667 8,333 8,333
Xxxx XxXxxx 312,500 100,000 177,778 34,722
33,333 16,667 8,333 8,333
Dromond Technologies 553,400 100,000 177,777 275,623
Total 2,179,429 600,000 850,000 729,429
286,666 153,333 66,667 66,666
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If any Pooled Securities that would be released to a Releasee pursuant to this
Schedule C are at the time subject to the reverse vesting procedure in Schedule
B (the "Reverse Vesting Procedure") then the Escrow Agent will not release the
certificates for such Pooled Securities to the Shareholder but will retain them
as long as they continue to be subject to the Reverse Vesting Procedure and
release them from time to time as they cease to be subject to the Reverse
Vesting Procedure.
Advanced Financial Services Inc. and The Dromond Group Ltd. hereby agree with
the procedures described herein and acknowledge that none of the Pooled
Securities will be delivered directly to them.
