POSITION ESCROW AGREEMENT
THIS AGREEMENT made in triplicate this 1st day of April, 1997
AMONG:
POSITION INC.
(herein called the "Issuer")
OF THE FIRST PART
-and-
THE R-M TRUST COMPANY
(herein called the "Trustee")
OF THE SECOND PART
-and-
XXXXXXXXX SECURITIES LTD.
(herein called the "Agent")
OF THE THIRD PART
-and-
XXXX X. XXXXXXXXX, XXXXX X. XXXXX, XXXX X. XXXXXXXX,
XXXXX X. XXXXXX, CHIP HOME PRODUCTS LIMITED, CORPORATE RECOVERY MANAGEMENT
LTD., MICA GEOMATICS LTD. KRAKIWSKY CONSULTANTS LTD.,
JFM GEOMATICS LTD. AND NCS INTERNATIONAL INC.
(herein called the "Security Holders") OF THE FOURTH PART
WHEREAS in furtherance of complying with the requirements of the Issuer, the
Security Holders are desirous of depositing in escrow certain securities in
the Issuer owned or to be received by them;
AND WHEREAS certain of the Security Holders in addition to escrowed shared
held pursuant to this agreement, have a portion of their securities subject to
an Escrow Agreement dated April 1, 1997 (the "Mandatory Escrow Agreement"),
which is required to be entered into by Alberta Securities Commission Policy
4.9;
AND WHEREAS the Issuer and the Security Holders desire that the total number
of securities (the "Total Escrowed Shares") held subject to the Mandatory
Escrow Agreement dated and this agreement (collectively the "Escrow
Agreements") be released from escrow commencing on the first anniversary from
the date of the receipt (the "Receipt Date") for the Issuer's prospectus
governing its initial public offering, such that one third of the Total
Escrowed Shares held by a Security Holder shall be released on a pro-rata
basis on each of the first, second and third anniversaries of the Receipt
Date;
AND WHEREAS the Trustee has agreed to undertake and perform its duties
according to the terms and conditions hereof;
NOW THEREFORE this agreement witnesses that in consideration of the sum of ONE
($1.00) DOLLAR paid by the parties to each other, receipt of this sum being
acknowledged by each of the parties, the Security Holders jointly and
severally covenant and agree with the Issuer and with the Trustee and the
Issuer, Agent and the Trustee covenant and agree with the other and with the
Security Holders jointly and severally as follows:
1. Each of the Security Holders hereby places and deposits in escrow with
the Trustee those of his securities of the Issuer which are represented by the
certificates described in Schedule "A" attached to this agreement and the
Trustee hereby acknowledges receipt of those certificates. The Security
Holders agree to deliver promptly to the Trustee any replacement securities or
certificates if and when issued or allotted for deposit in escrow.
2. The Parties agree that, subject to the provisions of paragraph 6 and 10
herein, the securities and the beneficial ownership of or any interest in them
and the certificate 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,
except as may be required by reason of the death or bankruptcy of any Security
Holder, in which cases the Trustee shall hold the said certificates subject
to this agreement, for whatever person or company shall be legally entitled to
become the registered owner thereof, but the securities shall remain in
escrow, subject to this agreement.
3. The Security Holders direct the Trustee to retain their respective
securities 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
there of except as provided in paragraph 6, without the written consent of
the Agent. The Trustee 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 Agent.
4. If during the period in which any of the securities are retained in
escrow pursuant hereto, any dividend is received by the Trustee in respect of
the escrowed securities, any such dividend shall be promptly paid or
transferred to the respective Security Holders entitled thereto.
5. All voting rights attached to the escrowed securities shall at all
times be exercised by the respective registered owners thereof.
6. Subject to paragraph 10, the escrowed securities governed by this
agreement shall be automatically released on a pro-rata basis in accordance
with the terms of Schedule "B" hereto. The intention of this agreement is to
provide for release from escrow, subject to the Mandatory Escrow Agreement,
of one third of the Total Escrowed Shares on each of the first, second and
third anniversaries of the Receipt Date.
7. The Security Holders hereby jointly and severally agree to and do
hereby release and indemnify and save harmless the Trustee and the Agent from
and against all claims, suits, demands, costs, damages and expenses which may
be occasioned by reason of the Trustee's and Agent's compliance in good faith
with the terms hereof.
8. 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 Trustee's proper charges for its services as
trustee of this escrow.
9. If the Trustee should wish to resign, it shall give at least three
months' notice to the Issuer which may, with the written consent of the
Executive Director, by writing appoint another Trustee in its place and such
appointment shall be binding on the Security Holders and the new Trustee
shall assume and be bound by the obligations of the Trustee hereunder.
10. Notwithstanding paragraph 6, upon the receipt by the Trustee of the
written consent of the Agent as to a release from escrow of all or part of
the escrowed securities, such escrowed securities shall be released by the
Trustee and this agreement shall terminate only in respect to those securities
so released. For greater certainty this paragraph does not apply to securities
transferred within escrow.
11. This agreement may be executed in several parts in the same form and
the parts as so executed shall together form 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.
12. Wherever the singular or masculine are used throughout this
agreement, the same shall be construed as being the plural or feminine or
neuter where the context so requires.
13. This agreement may be amended upon agreement in writing of the
Security Holders, the Trustee, the Agent and the Issuer.
14. 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.
15. Signatures received by facsimile are an acceptable form of execution
of this agreement.
IN WITNESS WHEREOF the Issuer, Agent and Trustee have caused their
respective corporate seals to be hereto affixed and the Security Holders have
hereto set their respective hands and seals.
POSITION INC.
Per:
Xxxx X. Xxxxxxxxx
President
Per:
Xxxxxxx X. Xxxxxxxxx
(c/s)
Vice President Business Development
THE R-M TRUST COMPANY
Per:
Per:
(c/s)
XXXXXXXXX SECURITIES LTD
Per:
Per:
(c/s)
SIGNED, SEALED AND DELIVERED by the respective Security Holders whose names
are subscribed in the right-hand column below in the presence of the
respective persons whose names are subscribed in the left-hand column.
WITNESSES SECURITY HOLDERS
Witness to the signature of Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
Witness to the signature of Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Witness to the signature of Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Witness to the signature of Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
CHIP HOME PRODUCTS LIMITED
Per:
Per:
CORPORATE RECOVERY
MANAGEMENT LTD.
Per:
Per:
MICA GEOMATICS LTD.
Per:
Per:
KRAKIWSKY CONSULTANTS LTD.
Per:
Per:
JFM GEOMATICS LTD.
Per:
Per:
NCS INTERNATIONAL INC.
Per:
Per:
SCHEDULE "A" to an Escrow Agreement dated April 1, 1997, and made among
POSITION INC. (therein called the "Issuer"), THE R-M TRUST COMPANY (therein
called the "TRUSTEE"), XXXXXXXXX SECURITIES LTD. (therein called the "Agent")
and some security holders of the Issuer (therein called the "Security
Holders")
Name of registered Number of Certificate Numbers of Signature of
Security Holders Securities Escrowed Securities Escrowed Security Holder
__________________ ___________________ ______________________ _______________
Xxxx X Xxxxxxxxx 67,870 1
Xxxxx X. Xxxxx 407,903 8
Xxxx X. Xxxxxxxx 10,200 26
Xxxxx X. Xxxxxx 312,000 15
Chip Home Products 191,500 2 Per:
Limited
Per:
Corporate Recovery 192,500 4 Per:
Management Ltd.
Per:
Mica Geomatics Ltd. 287,637 5 Per:
Per:
Krakiwsky
Consultants 210,851 7 Per:
Ltd.
Per:
JFM Geomatics Ltd. 547,206 3 Per:
Per:
NCS International
Inc. 288,654 72 Per:
Per:
SCHEDULE "B"
POSITION ESCROW AGREEMENT
Shareholder Anniversary 1 Anniversary 2 Anniversary 3 Total
Xxxx Xxxxxxxxx 48,135 19,735 - 67,870
Xxxx Xxxxxxxx 3,400 3,400 3,400 10,200
Xxxxx Xxxxx 289,295 118,608 - 407,903
Xxxxx Xxxxxx 104,000 104,000 104,000 312,000
Chip Home
Products Ltd. 135,817 55,683 - 191,500
Mica Geomatics
Ltd. 95,879 95,879 95,879 287,637
Corporate
Recovery
Management Ltd. 135,817 55,683 - 191,500
Krakiwsky
Consultants Ltd. 70,284 70,284 70,283 210,851
JFM
Geomatics Ltd. 240,906 98,769 - 339,675
NCS
International,
Inc. 204,721 83,933 - 288,654
