AGREEMENT among ASTRIS ENERGI INC. AND MACNOR CORPORATION AND 2062540 ONTARIO INC. JANUARY 20, 2005
EXHIBIT
10.14
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;
“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;
“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.
-2-
“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);
|
-3-
| (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;
|
-4-
| (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);
|
-5-
| (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.
-6-
| 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.
|
-7-
| 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.
|
-8-
| 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.
-9-
| 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
-10-
| (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.
|
-11-
| (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.
|
-12-
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
|
-13-
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.
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.
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;
|
|
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.
-2-
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.
-3-
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.
-4-
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.
|
-5-
| (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.
|
-6-
| (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:
-7-
| (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
à
Trade-Xxxx Agents
000
Xxx
Xxxxxx
00xx
Xxxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention:
Xxxx X. Xxxxxxxxxxxxx
Facsimile:
(000) 000-0000
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.
-8-
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.
-9-
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.
-10-
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.
