Exhibit 10.38
ESCROW AGREEMENT
THIS AGREEMENT is made as of the 3rd day of July, 2001
AMONG:
VOICE MOBILITY INTERNATIONAL, INC., a company incorporated
under the laws of Nevada having a place of business at Xxxxx
000, 00000 Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx Xxxxxxxx, X0X
0X0;
(the "Issuer");
AND:
COMPUTERSHARE TRUST COMPANY OF CANADA, having a place of
business at 0xx Xxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0;
(the "Escrow Agent");
AND:
THE UNDERSIGNED SECURITY HOLDERS OF THE ISSUER
(the "Securityholders")
(collectively, the "Parties").
WHEREAS:
A. the Issuer is proposing to carry out a distribution to the public of
equity securities of the Issuer pursuant to a prospectus filed with one
or more Canadian securities regulatory authorities;
B. in connection with the proposed distribution to the public, the
Securityholders have agreed to deposit certain of their securities of
the Issuer in escrow, to be held by an escrow agent in accordance with
arrangements acceptable to the Canadian securities regulatory
authorities having jurisdiction in the matter; and
C. the Escrow Agent has agreed to hold such securities in accordance with
the terms of this Agreement.
NOW THEREFORE in consideration of the covenants contained in this agreement and
other good and valuable consideration paid by each party to the others (the
receipt and sufficiency of which are hereby acknowledged), the Parties agree as
follows:
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1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
(a) "ACKNOWLEDGMENT" means an acknowledgment and agreement to be
bound, in the form of Schedule "C" to this Agreement;
(b) "ADDITIONAL SECURITIES" means securities, ownership of or
control or direction over which is acquired by a
Securityholder subsequent to the date on which the
Securityholder executes this Agreement or an Acknowledgement,
that are:
(i) securities of the Issuer, ownership of or control or
direction over which is acquired by a Securityholder
as a dividend or other distribution on Securities,
upon the exercise by a Securityholder of a right of
purchase, conversion or exchange attaching to
Securities, or upon a subdivision or compulsory
conversion or exchange of Securities, or
(ii) New Securities of a Successor Issuer, ownership of or
control or direction over which is acquired by a
Securityholder in consideration for Securities and
which are subject to escrow in accordance with
section 6.4 of this Agreement;
(c) "CANADIAN EXCHANGE" means the CDNX, the WSE, the ME and the
TSE;
(d) "CDNX" means the Canadian Venture Exchange Inc.;
(e) "COMBINATION" means a bona fide formal take-over bid, plan of
arrangement, amalgamation, merger or similar transaction;
(f) "EMERGING ISSUER" means an issuer that:
(i) has equity securities listed on the CDNX and is
classified as a Tier 2 issuer thereon; or
(ii) has equity securities listed on the ME or the WSE and
meets requirements equivalent to the CDNX's Tier 2
requirements but not the CDNX's Tier 1 requirements;
(g) "ESTABLISHED ISSUER" means an issuer that:
(i) has equity securities listed on the TSE and is not
classified as an exempt issuer thereon;
(ii) has equity securities listed on the CDNX and is
classified as a Tier 1 issuer thereon; or
(iii) has equity securities listed on the ME or the WSE and
meets requirements equivalent to the CDNX's Tier 1
requirements;
(h) "EXCHANGE" means the Canadian Exchange on which the Issuer has
its equity securities listed;
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(i) "IPO" means the initial distribution to the public by the
Issuer and/or by securityholders of the Issuer of equity
securities of the Issuer pursuant to a prospectus filed with
one or more Canadian security regulatory authorities;
(j) "IPO PROSPECTUS" means the prospectus or amended prospectus
pursuant to which the IPO was carried out;
(k) "ISSUER'S CERTIFICATE" means a certificate signed by a
director or officer of the Issuer, duly authorized to sign, as
evidenced by a certified copy of a resolution of the board of
directors of the Issuer attached to the certificate;
(l) "LISTING DATE" means the date on which the Securities are
first listed on a Canadian Exchange;
(m) "ME" means Montreal Exchange;
(n) "NEW SECURITIES" means equity securities and options of a
Successor Issuer which are issued to a Securityholder in
consideration for Securities in connection with a Combination;
(o) "RELEASE DATES" mean:
(i) with respect to an Established Issuer, the dates
determined in accordance with clause 5.1(a); and
(ii) with respect to an Emerging Issuer, the dates
determined in accordance with clause 5.1(b);
(p) "SECURITIES" means, in relation to a Securityholder, the
securities of the Securityholder described in Schedule "A" to
this Agreement, together with all Additional Securities of the
Securityholder, at any time prior to their release from escrow
in accordance with this Agreement;
(q) "SECURITYHOLDER" means a holder of securities of the Issuer
who executes this Agreement or an Acknowledgment;
(r) "SENIOR OFFICER" of a person or company means:
(i) the chair or a vice-chair of the board of directors,
the president, the chief executive officer, the chief
financial officer, a vice-president, the secretary,
the treasurer or the general manager of the person or
company, or any individual who performs functions for
the person or company similar to those normally
performed by an individual occupying any such office,
and
(ii) each of the five highest paid employees of the person
or company, including any individual referred to in
clause (a), excluding a commissioned salesperson who
does not act in a managerial capacity;
(s) "SUCCESSOR ISSUER" means an issuer that issues securities to a
Securityholder in connection with a Combination involving the
Issuer;
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(t) "SUCCESSOR ISSUER'S CERTIFICATE" means a certificate signed by
a director or officer of the Successor Issuer, duly authorized
to sign, as evidenced by a certified copy of a resolution of
the board of directors of the Successor Issuer attached to the
certificate;
(u) "TSE" means the Toronto Stock Exchange; and
(v) "WSE" means the Winnipeg Stock Exchange;
1.2 TERMS DEFINED IN NATIONAL INSTRUMENT 14-101 DEFINITIONS
Terms used in this Agreement that are defined in National Instrument 14-101
DEFINITIONS have the meanings ascribed to them in that National Instrument.
1.3 CONTROL OR DIRECTION
For purposes of this Agreement, a person or company that has "control or
direction" over securities includes a person or company that, directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has or shares
(a) voting power, including the power to direct the voting of,
such securities; or
(b) investment power, including the power to acquire or dispose,
or to direct the acquisition or disposition of, such
securities.
In determining whether a person or company owns or has control or direction over
securities carrying a certain percentage of the voting rights attached to
outstanding voting securities, the voting rights attached to securities into
which options (other than incentive options) are exercisable must, for that
person or company, be treated as having been exercised.
2. ESCROW
2.1 APPOINTMENT OF ESCROW AGENT
The Issuer and each Securityholder hereby appoint the Escrow Agent to act as
escrow agent in accordance with the terms and conditions of this Agreement, and
the Escrow Agent hereby accepts such appointment.
2.2 DEPOSIT OF SECURITIES IN ESCROW
Each Securityholder hereby deposits with the Escrow Agent, to be held in escrow
under this Agreement, the Securities of the Securityholder described in Schedule
"A", and agrees to deliver to the Escrow Agent forthwith upon receipt thereof
any certificates evidencing such Securities. Each Securityholder agrees to
deposit in escrow with the Escrow Agent, to be held in escrow under this
Agreement, all Additional Securities, and to deliver to the Escrow Agent
forthwith on receipt thereof any certificates evidencing Additional Securities,
and any replacement certificates which may at any time be issued for any
Securities held in escrow.
2.3 DIRECTION TO ESCROW AGENT
The Issuer and each Securityholder hereby direct the Escrow Agent to retain the
Securities in escrow until the Securities are released from escrow pursuant to
the terms of this Agreement.
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3. DEALING WITH SECURITIES IN ESCROW
3.1 PROHIBITIONS ON TRANSFERS AND ENCUMBRANCES
Except as expressly permitted in this Agreement, a Securityholder may not sell,
assign, transfer, redeem, surrender for consideration, effect or permit a change
in control or direction over, mortgage, hypothecate, charge, pledge, or
otherwise encumber Securities or any interest in, or in the certificate
evidencing, Securities.
3.2 INDIRECT DEALINGS PROHIBITED
No Securityholder that is not an individual will issue securities of its own
issue or effect or permit a transfer of ownership of securities of its own issue
that would have the effect of changing the beneficial ownership of, or control
or direction over, Securities.
3.3 PLEDGE FOR BONA FIDE LOAN
Subject to section 4.3, a Securityholder may pledge Securities to a financial
institution as collateral for a bona fide loan.
3.4 VOTING OF SECURITIES IN ESCROW
Escrow of Securities will not impair any right of a Securityholder to exercise
voting rights attaching to Securities.
3.5 DIVIDENDS ON SECURITIES IN ESCROW
Escrow of Securities will not impair any right of a Securityholder to receive a
dividend or other distribution on Securities, or to elect the form or manner in
which a dividend or other distribution on Securities will be paid. If, during
the period in which any of the Securities are retained in escrow pursuant to
this Agreement, any dividend or other distribution, other than one paid in
securities of the Issuer or in New Securities of a Successor Issuer, is received
by the Escrow Agent in respect of Securities, the Escrow Agent shall pay or
transfer such dividend or other distribution to the respective Securityholders
entitled thereto forthwith.
3.6 EXERCISE OF OTHER RIGHTS ATTACHING TO SECURITIES IN ESCROW
Subject to section 2.2 and Part 6, escrow of Securities will not impair any
right of a Securityholder to exercise a right attaching to a Security that
entitles the Securityholder to purchase or otherwise acquire another security or
to exchange or convert a Security for or into another security. Any security so
acquired by a Securityholder will be an Additional Security and subject to
escrow in accordance with the terms of this Agreement.
3.7 SECURITIES LEGISLATION RESALE RESTRICTIONS
The release of Securities from escrow or a transfer of Securities within escrow
in accordance with this Agreement will not affect or remove any restriction
imposed by the securities legislation of a jurisdiction on a trade in such
Securities by the Securityholder.
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3.8 FILING REQUIREMENTS
The filing requirements in this Agreement are in addition to any other
requirements imposed by the securities legislation of a jurisdiction or the
Exchange.
4. PERMITTED TRANSFERS WITHIN ESCROW
4.1 TRANSFER TO DIRECTORS AND SENIOR OFFICERS
(a) Subject to any legal or other restrictions on transfer and to
the approval of the Issuer's board of directors, Securities
may be transferred within escrow to an individual who is a
director or Senior Officer of the Issuer or of a material
operating subsidiary of the Issuer provided that the Escrow
Agent first receives:
(i) a certified copy of the resolution of the board of
directors of the Issuer approving the transfer;
(ii) an Issuer's Certificate stating that the transfer is
to a director or Senior Officer of the Issuer or of a
material operating subsidiary of the Issuer whose
election or appointment to that position has been
approved by the Exchange accompanied by evidence of
such approval;
(iii) an Acknowledgment signed by the transferee or an
amended Agreement reflecting the transfer;
(iv) copies of the transmittal letters sent to the
securities regulatory authorities and Exchange
pursuant to subsection (b) below; and
(v) a transfer power of attorney, duly executed by the
transferor.
(b) At least 10 days prior to the date of the transfer, the Issuer
shall file with the securities regulatory authorities in the
jurisdictions in which it is a reporting issuer and the
Exchange the documents set out in clauses (a)(i) through
(a)(iii) above.
4.2 TRANSFER UPON BANKRUPTCY
Subject to any legal or other restrictions on transferability, upon the
bankruptcy of a Securityholder, the Securities of the Securityholder may be
transferred within escrow to the trustee in bankruptcy or other person or
company legally entitled to such Securities, provided that the Escrow Agent
first receives:
(a) a certified copy of either:
(i) the assignment in bankruptcy of the Securityholder
filed with the Superintendent of Bankruptcy; or
(ii) the Receiving Order adjudging the Securityholder
bankrupt;
(b) a certified copy of a certificate of appointment of the
trustee in bankruptcy;
(c) a transfer power of attorney, duly executed by the transferor;
and
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(d) an Acknowledgment signed by the trustee in bankruptcy or other
person or company legally entitled to the Securities or an
amended Agreement reflecting the transfer.
Within 10 days after the date of transfer of the Securities pursuant to this
section 4.2, the transferee Securityholder shall file a copy of the amended
Agreement or Acknowledgment with the securities regulatory authorities in the
jurisdictions in which the Issuer is a reporting issuer and the Exchange.
4.3 TRANSFER UPON REALIZATION OF PLEDGED SECURITIES
In the event of the realization of Securities pledged by the Securityholder in
accordance with section 3.3, the Securities may be transferred within escrow to
the financial institution legally entitled to such Securities, provided that the
Escrow Agent first receives:
(a) a statutory declaration of an officer of the financial
institution that the financial institution is legally entitled
to the Securities;
(b) a transfer power of attorney, duly executed by the transferor;
and
(c) an Acknowledgment signed by the financial institution or an
amended Agreement reflecting the transfer.
Within 10 days after the date of transfer of the Securities pursuant to this
section 4.3, the transferee Securityholder shall file a copy of the amended
Agreement or Acknowledgment with the securities regulatory authorities in the
jurisdictions in which the Issuer is a reporting issuer and the Exchange.
4.4 TRANSFER TO CERTAIN PLANS AND FUNDS
Securities may be transferred within escrow by a Securityholder to a registered
retirement savings plan ("RRSP"), a registered retirement income fund ("RRIF")
or any other similar trusteed plan or fund, or subsequently between any such
trusteed plans or funds, provided that the Escrow Agent first receives:
(a) evidence from the trustee of the plan or fund to which the
Securities are being transferred, stating that, to the best of
the trustee's knowledge, the beneficiaries of the plan or fund
do not include any person or company other than the
Securityholder or a spouse or child of the Securityholder;
(b) a transfer power of attorney, duly executed by the transferor;
and
(c) an Acknowledgment signed by the trustee of the plan or fund or
an amended Agreement reflecting the transfer.
Within 10 days after the date of transfer of the Securities pursuant to this
section 4.4, the transferee Securityholder shall file a copy of the amended
Agreement or Acknowledgment with the securities regulatory authorities in the
jurisdictions in which the Issuer is a reporting issuer and the Exchange.
4.5 EFFECT OF TRANSFER WITHIN ESCROW
Upon completion of a transfer of Securities pursuant to this Part 4, the
transferee will be a Securityholder and the Securities transferred will remain
in escrow, to be held in and released from escrow on the same terms and
conditions as were applicable prior to the transfer.
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5. RELEASE OF SECURITIES FROM ESCROW
5.1 RELEASE SCHEDULE
Subject to section 5.4, 5.5, Part 6 and Part 7, each Securityholder's Securities
will be released from escrow under this Agreement as follows:
(a) if the Issuer is an Established Issuer on completion of its
IPO
DATE FREE OF ESCROW CUMULATIVE PERCENTAGE OF SECURITIES
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Listing Date 25% (not subject to escrow)
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6 months from Listing Date 50%
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12 months from Listing Date 75%
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18 months from Listing Date 100%
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(b) if the Issuer is an Emerging Issuer on completion of its IPO
DATE FREE OF ESCROW CUMULATIVE PERCENTAGE OF SECURITIES
------------------------------------------------------------------------------------------------------------
Listing Date 10% (not subject to escrow)
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6 months from Listing Date 25%
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12 months from Listing Date 40%
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18 months from Listing Date 55%
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24 months from Listing Date 70%
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30 months from Listing Date 85%
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36 months from Listing Date 100%
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5.2 DELIVERY OF CERTIFICATES TO SECURITYHOLDER
The Escrow Agent will, as soon as reasonably practicable after the applicable
Release Date, deliver, to or at the direction of the Securityholder,
certificates evidencing the Securities released from escrow on the applicable
Release Date.
5.3 REPLACEMENT CERTIFICATES
Where a Securityholder has, in accordance with section 5.2, provided notice to
the Escrow Agent that the Securityholder wishes to receive a certificate
evidencing Securities released or to be released from escrow, and where the
relevant certificate held by the Escrow Agent evidences a combination of
Securities released from escrow on the applicable Release Date and Securities
that are to remain in escrow, the Escrow Agent will, as soon as reasonably
practicable after the applicable Release Date or
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after receipt by the Escrow Agent of the notice from the Securityholder,
whichever is later, deliver such certificates to the Issuer or its transfer
agent, together with a request that separate replacement certificates be
prepared and delivered to the Escrow Agent. Where certificates evidencing
Securities are delivered to the Issuer in accordance with the foregoing, the
Issuer will, as soon as reasonably practicable, cause separate replacement
certificates to be prepared and delivered to the Escrow Agent. As soon as
reasonably practicable after the receipt by the Escrow Agent of the replacement
certificates, the Escrow Agent will deliver, to or at the direction of the
Securityholder, all replacement certificates evidencing Securities released from
escrow on the applicable Release Date.
5.4 RELEASE UPON DEATH
Upon the death of a Securityholder, the Securities of that Securityholder will
be released from escrow and the Escrow Agent will deliver all certificates
evidencing such Securities to the legal representative of the deceased
Securityholder, provided that the Escrow Agent first receives:
(a) a certified copy of the deceased Securityholder's death
certificate; and
(b) such evidence of the legal representative's status that the
Escrow Agent may reasonably require.
5.5 RELEASE IF MINIMUM IPO PROCEEDS $75,000,000
If the IPO Prospectus does not specify a minimum offering of $75,000,000 or
more, but gross proceeds of at least $75,000,000 are raised in the Issuer's IPO,
whether by way of a primary offering and/or a secondary offering of securities,
all Securities shall be released from escrow upon receipt by the Escrow Agent of
an Issuer's Certificate stating:
(a) the amount of gross proceeds raised in the IPO; and
(b) that the Securities are not required to be escrowed and may be
released to the Securityholders entitled to the same.
If the Escrow Agent has received notice from a Securityholder that the
Securityholder wishes to receive certificates evidencing released Securities,
the Escrow Agent will deliver such certificates in accordance with the procedure
set out in section 5.2.
6. COMBINATIONS
6.1 DELIVERIES TO ESCROW AGENT
A Securityholder who wishes to tender Securities (the "Tendered Securities") to
a Combination will deliver to the Escrow Agent:
(a) a written direction signed by the Securityholder (a
"Direction") that directs the Escrow Agent to deliver to a
specified person or company (the "Depositary") either:
(i) certificates evidencing the Tendered Securities, or
(ii) if the Securityholder has provided the Escrow Agent
with a notice of guaranteed delivery or similar
notice of the Securityholder's intent to tender the
Tendered Securities to the Combination, that notice,
together with a letter of transmittal or similar
document and, where required, transfer power of
attorney duly executed
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for transfer, and any other documentation specified
or provided by the Securityholder and required to be
delivered to the Depositary under the terms of the
Combination; and
(b) such other information concerning or evidence of the
Combination as the Escrow Agent may reasonably require.
6.2 DELIVERIES TO DEPOSITARY
Forthwith after its receipt of the information and documentation specified in
section 6.1, the Escrow Agent will deliver to the Depositary, in accordance with
the Direction, the documentation specified or provided under clause 6.1(a),
together with a letter addressed to the Depositary that:
(a) identifies the Tendered Securities;
(b) states that the Tendered Securities are held in escrow;
(c) states that the Tendered Securities are delivered only for the
purposes of the Combination and that the Tendered Securities
will be released from escrow only upon receipt by the Escrow
Agent of the information described in section 6.3;
(d) if certificates for Securities have been delivered to the
Depositary, requires the Depositary to return to the Escrow
Agent, as soon as practicable, the certificates evidencing
Securities that are not releasable from escrow as described in
clause (c) above; and
(e) where applicable, requires the Depositary to deliver or cause
to be delivered to the Escrow Agent, as soon as practicable,
certificates representing Additional Securities acquired by
the Securityholder under the Combination.
6.3 RELEASE OF SECURITIES TO DEPOSITARY
Tendered Securities will be released from escrow upon receipt by the Escrow
Agent of a declaration signed by the Depositary or, if the Direction identifies
the Depositary as acting on behalf of another person or company in respect of
the Combination, by that other person or company, that:
(a) the terms and conditions of the Combination have been met or
waived; and
(b) the Tendered Securities have either been taken up and paid for
or are subject to an unconditional obligation to be taken up
and paid for under the Combination.
6.4 ESCROW OF NEW SECURITIES
Each Securityholder agrees that New Securities received by the Securityholder
shall be held in escrow in substitution for the Tendered Securities if
(a)
(i) immediately after the completion of the Combination,
the Successor Issuer has no equity securities listed
on the TSE and is not classified as an exempt issuer
thereon;
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(ii) the Securityholder is a Principal of the Successor
Issuer (as defined in section 6.5); and
(iii) immediately after completion of the Combination, the
Securityholder beneficially owns and/or has direction
or control over 1% or more of the Successor Issuer's
outstanding voting securities; or
(b) the Exchange on which the New Securities are listed so
requires.
6.5 MEANING OF "PRINCIPAL"
For the purposes of section 6.4, a "Principal of a Successor Issuer" means a
person or company that, immediately upon completion of the Combination, is:
(a) a Promoter (as defined in section 6.6) of the Successor Issuer
or a material operating subsidiary of the Successor Issuer
whose activities in this regard occurred at any time within
the previous two years;
(b) a director or Senior Officer of the Successor Issuer or of a
material operating subsidiary of the Successor Issuer;
(c) a person or company that
(i) beneficially owns, directly or indirectly;
(ii) has control or direction over; or
(iii) has a combination of direct or indirect beneficial
ownership of and control or direction over
securities of the Successor Issuer carrying more than 20% of
the voting rights attached to all the outstanding voting
securities of the Successor Issuer, calculated immediately
after completion of the Combination;
(d) a person or company that:
(i)
(A) beneficially owns, directly or indirectly;
(B) has control or direction over; or
(C) has a combination of direct or indirect
beneficial ownership of and control or
direction over
securities of the Successor Issuer carrying
more than 10% of the voting rights attached
to all the outstanding voting securities of
the Successor Issuer, calculated immediately
after completion of the Combination, and
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(ii)
(A) has selected, or has the right to select one
or more directors or Senior Officers of the
Successor Issuer; or
(B) one or more directors or Senior Officers of
the Successor Issuer
(a) are directors, officers or
employees of such person or
company; or
(b) beneficially own, directly or
indirectly, or have control or
direction over, or have a
combination of beneficial ownership
of and control or direction over,
more than 10% of the outstanding
voting securities, of such person or
company;
(e) an issuer:
(i) if 20% or more of the voting securities of the issuer
are beneficially owned, directly or indirectly, by
one or more of the persons or companies referred to
in clauses (a) through (d); or
(ii) if one or more of the persons or companies referred
to in clauses (a) through (d) has or have control or
direction over 20% or more of the voting securities
of the issuer; or
(iii) if one or more of the persons or companies referred
to in clauses (a) through (d) has or have a
combination of beneficial ownership of and control or
direction over, 20% of the voting securities of the
issuer; or
(f) an associate of a person or company referred to in clauses (a)
through (d).
6.6 MEANING OF PROMOTER
For the purposes of section 6.5, "Promoter" means:
(a) a person or company that, acting alone or in conjunction with
one or more other persons or companies or a combination
thereof, directly or indirectly takes the initiative in
founding, organizing or substantially reorganizing the
business of a Successor Issuer or material operating
subsidiary thereof; or
(b) a person or company that, in connection with the founding,
organizing or substantial reorganizing of the business of the
Successor Issuer or material operating subsidiary thereof,
directly or indirectly receives, in consideration of services
or property or both, 10% or more of a class of the Successor
Issuer's own securities or 10% or more of the proceeds from
the sale of a class of the Successor Issuer's own securities
of a particular issue;
but does not include a person or company that receives securities or
proceeds solely as underwriting commissions or in consideration for
property, if that person or company does not otherwise take part in
founding, organizing or substantially reorganizing the business of a
Successor Issuer or material operating subsidiary thereof.
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6.7 RELEASE FROM ESCROW OF NEW SECURITIES
Upon receipt by the Escrow Agent of an Issuer's Certificate from the Successor
Issuer:
(a) stating that it is a Successor Issuer;
(b) containing a list of the Securityholders whose New Securities
are subject to escrow pursuant to section 6.4;
(c) containing a list of the Securityholders whose New Securities
are not subject to escrow pursuant to section 6.4;
(d) notices from Securityholders who are on the list described in
clause (c) above that the Securityholder giving the notice
wishes to receive certificates evidencing released New
Securities,
the Escrow Agent will deliver such certificates in accordance with the
procedure set out in section 5.2.
The Escrow Agent will hold any New Securities acquired under a Combination by a
Securityholder who is listed on the list described in clause (b) in escrow on
the same terms and conditions, including release dates, as applied to the
Securities for which they were exchanged, substituted or constituted
consideration, which release dates may be revised pursuant to Part 7.
7. EARLY RELEASE ON GRADUATION
7.1 REQUIREMENTS FOR GRADUATION
For the purposes of this Part 7, "Graduation Requirement" means any one of the
following:
(a) the Issuer's equity securities are listed on the TSE;
(b) the Issuer's equity securities are listed on the CDNX and the
Issuer is classified as a Tier 1 issuer thereon; or
(c) the Issuer's equity securities are listed on the ME or the WSE
and the Issuer meets requirements equivalent to the CDNX's
Tier 1 listing requirements.
7.2 RELEASE OF SECURITIES ON GRADUATION
Notwithstanding section 5.1, Securities of an Emerging Issuer that satisfies a
Graduation Requirement will, subject to section 7.3, be released from escrow as
follows:
(a) if the Issuer has satisfied a Graduation Requirement and
complied with the procedural requirements of section 7.3
within 18 months after its Listing Date:
(i) that number of Securities that would, to that date,
have been eligible for release from escrow if the
issuer had been an Established Issuer on its Listing
Date will immediately be released from escrow; and
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(ii) one-third of each Securityholder's Securities that
are equity securities and one-third of each
Securityholder's Securities that are options, if not
previously released, will be released:
(A) 6 months after the Listing Date;
(B) 12 months after the Listing Date; and
(C) 18 months after the Listing Date; or
(b) if the Issuer satisfies a Graduation Requirement and complies
with section 7.3 18 months or more after its Listing Date, all
Securities will be immediately released from escrow.
7.3 FILING REQUIREMENTS
It is a condition of the release of Securities from escrow in accordance with
section 7.2 that, if the Issuer is an Emerging Issuer on the date of this
Agreement and subsequently meets one of the Graduation Requirements set out in
section 7.1, the Issuer
(a) at least 20 days prior to the date of the initial release of
Securities pursuant to section 7.2, files with the securities
regulatory authorities of the jurisdictions in which it is a
reporting issuer and the Exchange:
(i) an Issuer's Certificate stating that:
(ii) the Issuer has met the Graduation Requirement
specified in the Issuer's Certificate; and
(iii) the Securityholders are entitled to an initial
release of the numbers of Securities specified in
accordance with section 7.2 of this Agreement; and
(iv) a copy of a letter or other evidence from the
Exchange confirming that the Graduation Requirement
has been met; and
(b) at least 10 days prior to the date of the initial release
pursuant to section 7.2, issues and files with the securities
regulatory authorities of the jurisdictions in which it is a
reporting issuer and the Exchange, a news release disclosing
details of the impending release of the Securities and the
change in the release schedule that will be applicable to the
Securities.
If subsection 7.2(a) applies, the Issuer shall, within 10 days after the date of
the initial release of Securities on the new escrow release schedule, file with
the securities regulatory authorities of the jurisdictions in which it is a
reporting issuer and the Exchange, an amended copy of this Agreement.
7.4 AMENDMENT OF RELEASE SCHEDULE
Upon receipt by the Escrow Agent of an Issuer's Certificate:
(a) stating that the Issuer has met one of the Graduation
Requirements specified in section 7.1;
15
(b) stating that the Securityholders are entitled to early release
from escrow of Securities as set out in section 7.2;
(c) stating that the Issuer has issued a news release in
accordance with section 7.3 and specifying the date on which
such news release was issued; and
(d) specifying the new escrow release schedule, in accordance with
section 7.2, applicable to the Securities held in escrow;
Schedule "B" to this Agreement will be deemed to be amended to reflect the new
escrow release schedule referred to in clause 7.4(d) above.
7.5 INITIAL RELEASE PURSUANT TO AMENDED SCHEDULE
If Schedule "B" to this Agreement is amended pursuant to section 7.4, the Escrow
Agent will effect the initial release of Securities in accordance with the
amended Schedule "B" on, or as soon as reasonably practicable after, the later
of the initial release date set forth in the amended Schedule "B" and the date
that is 10 days after the date of the news release specified in the Issuer's
Certificate provided under section 7.4.
8. ESCROW AGENT
8.1 ESCROW AGENT NOT RESPONSIBLE FOR GENUINENESS
The Escrow Agent shall not be responsible or liable in any manner whatever for
the sufficiency, correctness, genuineness or validity of any Security deposited
with it.
8.2 ESCROW AGENT NOT RESPONSIBLE FOR FURNISHING INFORMATION
The Escrow Agent will bear no responsibility for seeking, obtaining, compiling,
preparing or determining the accuracy of any information or document, the Escrow
Agent's receipt of which is a condition to a release from escrow or a transfer
within escrow under this Agreement.
8.3 ESCROW AGENT NOT RESPONSIBLE AFTER RELEASE
The Escrow Agent will have no further responsibility for Securities after it has
delivered Securities to or at the direction of the Securityholder in accordance
with the terms of this Agreement.
8.4 INDEMNIFICATION OF ESCROW AGENT
The Issuer and the Securityholders jointly and severally agree to release and
indemnify and save harmless the Escrow Agent, its successors and assigns, and
its directors, officers, employees and agents (the "Indemnified Parties")
against and from all claims, suits, demands, costs, damages and expenses and
disbursements of every nature and kind which may be brought against or suffered
or incurred by the Indemnified Parties in consequence of , arising out of, or in
any way related to the Escrow Agreement, as amended, modified or supplemented
from time to time.
8.5 REMUNERATION OF ESCROW AGENT
The Issuer will pay the Escrow Agent reasonable remuneration for, and reimburse
the Escrow Agent for its disbursements in connection with, its services under
this Agreement.
16
8.6 RESIGNATION OF ESCROW AGENT
If the Escrow Agent wishes to resign as escrow agent, the Escrow Agent will give
written notice to the Issuer. If the Issuer wishes the Escrow Agent to resign as
escrow agent, the Issuer will give written notice to the Escrow Agent. The
resignation of the Escrow Agent will be effective, and the Escrow Agent will
cease to be bound by this Agreement, on the date that is 60 days after the date
of receipt of the notices referred to above by the Escrow Agent or Issuer, as
applicable, or on such other date as the Escrow Agent and the Issuer may agree
upon (the "resignation date"), provided that the resignation date will not be a
date that is less than 10 business days before a release date set forth in
Schedule "B" and before the resignation date the Issuer has appointed another
escrow agent that is acceptable to the securities regulatory authorities having
jurisdiction in the matter and that has accepted such appointment, which
appointment will be binding on the Issuer and the Securityholders.
9. NOTICES
9.1 NOTICE TO ESCROW AGENT
Documents will be considered to have been delivered to the Escrow Agent on the
next business day following the date of transmission, if delivered by
telecopier, the date of physical delivery, if delivered by hand or by prepaid
courier, or 5 business days after the date of mailing, if delivered by mail, to
the following:
Computershare Trust Company Of Canada
4th Floor, 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: Xxxx Xxxxxxxxxx
Fax Number: (000) 000-0000
9.2 NOTICE TO ISSUER
Documents will be considered to have been delivered to the Issuer on the next
business day following the date of transmission, if delivered by telecopier, the
date of physical delivery, if delivered by hand or by prepaid courier, or 5
business days after the date of mailing, if delivered by mail, to the following:
Voice Mobility International, Inc.
Xxxxx 000, 00000 Xxxxxxxx Xxxxxxx
Xxxxxxxx, XX X0X 0X0
Attention: Xxxxx Xxxxxx
Fax Number: (000) 000-0000
9.3 DELIVERIES TO SECURITYHOLDERS
Subject to section 9.4, documents will be considered to have been delivered to a
Securityholder on the next business day following the date of transmission, if
delivered by telecopier, the date of physical delivery, if delivered by hand or
by prepaid courier, or 5 business days after the date of mailing, if delivered
by mail, to the address noted in Schedule "A". The Escrow Agent will, unless a
Securityholder directs the Escrow Agent in writing otherwise, deliver all
certificates representing Securities of the Securityholder that have been
released from escrow to the address of the Securityholder noted in Schedule "A".
17
9.4 CHANGE OF ADDRESS
A change in an address for delivery of the Escrow Agent or the Issuer under this
Part 9 will be effective upon delivery to each other Party of written notice of
such change. A change in an address for delivery of a Securityholder under this
Part 9 will be effective upon delivery to the Escrow Agent and the Issuer. For
the purpose of section 9.3, Schedule "A" will be deemed to be amended
accordingly.
9.5 POSTAL INTERRUPTION
A Party will not effect a delivery by mail if the Party is aware of an actual or
impending disruption of postal service.
10. GENERAL
10.1 FURTHER ASSURANCES
The Parties will execute and deliver any further documents and perform any
further acts necessary to carry out the intent of this Agreement.
10.2 TIME
Time is of the essence of this Agreement.
10.3 INCOMPLETE IPO
If the Issuer has become a reporting issuer in one or more jurisdictions as a
result of filing and obtaining a receipt for its IPO Prospectus, but does not
complete its IPO, this Agreement shall remain in effect until the securities
regulatory authorities in such jurisdiction or jurisdictions order that the
Issuer has ceased to be a reporting issuer therein.
10.4 JURISDICTION
The securities regulatory authority in each jurisdiction in which the Issuer's
IPO Prospectus is filed has jurisdiction with respect to this Agreement and the
Securities.
10.5 CONSENT OF SECURITIES REGULATORY AUTHORITIES TO AMENDMENT
This Agreement may not be amended without the consent of the securities
regulatory authorities having jurisdiction.
10.6 GOVERNING LAWS
This Agreement will be construed in accordance with and governed by the laws of
British Columbia and the laws of Canada applicable in British Columbia.
10.7 COUNTERPARTS
This Agreement may be executed by facsimile and in two or more counterparts,
each of which will be deemed to be an original and all of which will constitute
one agreement.
18
10.8 SINGULAR AND PLURAL
Wherever a singular expression is used in this agreement, that expression is
deemed to include the plural or the body corporate where required by the
context.
10.9 LANGUAGE
This Agreement has been drawn up in the English language at the request of all
Parties. Cet acte a ete redige en anglais a la demande de toutes les Parties.
10.10 ENUREMENT
This Agreement will enure to the benefit of and b e binding on the Parties and
their heirs, executors, administrators, successors and permitted assigns.
The Parties have executed and delivered this Agreement as of the date set out
above.
SIGNED, SEALED AND DELIVERED BY
COMPUTERSHARE TRUST COMPANY
OF CANADA per:
--------------------------------------------
Authorized Signatory
Name of Signatory:
--------------------------
Title of Signatory:
-------------------------
--------------------------------------------
Authorized Signatory
Name of Signatory:
--------------------------
Title of Signatory:
-------------------------
SIGNED, SEALED AND DELIVERED BY
VOICE MOBILITY INTERNATIONAL,
INC. per:
/s/ Xxxxx Xxxxxx
--------------------------------------------
Authorized Signatory
Name of Signatory: Xxxxx Xxxxxx
--------------------------
Title of Signatory: CFO
-------------------------
19
SIGNED, SEALED AND DELIVERED BY
PACIFIC WESTERN MORTGAGE
CORPORATION per:
/s/ Xxxxxxx Xxxxx
--------------------------------------------
Authorized Signatory
Name of Signatory: Xxxxxxx Xxxxx
--------------------------
Title of Signatory: President
-------------------------
SIGNED, SEALED AND DELIVERED BY
XXXXXXX XXXXX LTD. ITF XXXXXXX
XXXXX RRSP A/C#22-632S-6 per:
/s/ Xxxxxxx Xxxxxx
--------------------------------------------
Authorized Signatory
Name of Signatory: Xxxxxxx Xxxxxx
-------------------------
Title of Signatory: Sr. Vice-President
------------------------
SIGNED, SEALED AND DELIVERED BY
CANACCORD CAPITAL CORPORATION
ITF XXXXX XXXXXX RRSP A/C#260-119-S
-1 per:
/s/ Xxxxxx Xxxxxxx
--------------------------------------------
Authorized Signatory
Name of Signatory: Xxxxxx Xxxxxxx
--------------------------
Title of Signatory: CFO
-------------------------
SIGNED, SEALED & DELIVERED )
by XXXX XXXXXXXX in the presence of: )
)
/s/ Xxxxxx Xxxxxxxx ) /s/ Xxxx Xxxxxxxx
-------------------------------------------- ---------------------------------
Signature of Witness ) XXXX XXXXXXXX
)
Name of Witness: Xxxxxx Xxxxxxxx )
----------------------------
)
Address of Witness: 000 Xxxx Xxx. )
-------------------------
)
XX, XX 00000 )
--------------------------------------------
)
Occupation of Witness: Technical Consultant )
----------------------
20
SIGNED, SEALED AND DELIVERED BY
XXXXXXX XXXXX LTD. ITF XXXXXX
XXXXXXXXXXX RRSP
A/C#22-629S-1 per:
/s/ Xxxxxxx Xxxxxx
--------------------------------------------
Authorized Signatory
Name of Signatory: Xxxxxxx Xxxxxx
--------------------------
Title of Signatory: Sr. Vice-President
-------------------------
SIGNED, SEALED & DELIVERED )
by XXXXX XXXXXX in the presence of: )
)
/s/ Xxxx Xxxxxxx ) /s/ Xxxxx Xxxxxx
-------------------------------------------- ------------------------------
Signature of Witness ) XXXXX XXXXXX
)
Name of Witness: Xxxx Xxxxxxx )
----------------------------
)
Address of Witness: 401 - 000 Xxxx 0xx Xxxxxx )
-------------------------
)
Xxxxx Xxxxxxxxx, X.X. X0X 0X0 )
--------------------------------------------
)
)
--------------------------------------------
Occupation of Witness: Compliance
----------------------
SIGNED, SEALED AND DELIVERED BY
E.W.G. INVESTMENTS LTD. per:
/s/ Xxxxx X. Both
--------------------------------------------
Authorized Signatory
Name of Signatory: E. M. Both
--------------------------
Title of Signatory: President
-------------------------
21
SIGNED, SEALED & DELIVERED )
by XXXXX XXXXXX in the presence of: )
)
/s/ Xxxx Xxxxxxx ) /s/ Xxxxx Xxxxxx
-------------------------------------------- ------------------------------
Signature of Witness ) XXXXX XXXXXX
)
Name of Witness: Xxxx Xxxxxxx )
----------------------------
)
Address of Witness: 401 - 000 Xxxx 0xx Xxxxxx )
-------------------------
)
Xxxxx Xxxxxxxxx, X.X. X0X 0X0 )
--------------------------------------------
)
--------------------------------------------
)
Occupation of Witness: Compliance
----------------------
SCHEDULE "A"
SECURITY HOLDER
Name: Xxxxxxx Xxxxx Ltd. ITF Xxxxxxx Xxxxx
------------------------------------
RRSP A/C# 22-632S-6
------------------------------------
Signature: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Address for Delivery: Xxxxx 0000, 000 Xxxx Xxxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxxxx, X.X.
--------------------------------------------
X0X 0X0
--------------------------------------------
SECURITIES:
-----------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 100,000 (1)
-----------------------------------------------------------------------------------------------------------
Common Shares of the Issuer (legended) 100,000 (1)
-------
-----------------------------------------------------------------------------------------------------------
Total: 200,000
=======
-----------------------------------------------------------------------------------------------------------
(1) These shares are registered to Xxxxxxx Xxxxx Ltd. ITF Xxxxxxx Xxxxx,
RRSP A/C# 22-632S-6.
SECURITY HOLDER
Name: Pacific Western Mortgage Corporation
------------------------------------
Signature: /s/ Xxxxxxx Xxxxx
------------------------------------
Address for Delivery: 000 Xxxxxx Xxxx
---------------------------------
Xxxx Xxxxxx Xxxxxx, XX X0X 0X0
---------------------------------
SECURITIES:
-----------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
-----------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 512,500 (2)
-----------------------------------------------------------------------------------------------------------
Preferred Shares of Voice Mobility Canada 937,500 (3)
Limited ---------
-----------------------------------------------------------------------------------------------------------
Total: 1,450,000
=========
-----------------------------------------------------------------------------------------------------------
2
(2) These shares are registered to Pacific Western Mortgage Corporation
("PWMC"), a company controlled by Xxxxxxx Xxxxx.
(3) PWMC is the registered holder of 937,500 preferred shares (the
"Preferred Shares") of Voice Mobility Canada Limited ("VM Canada").
Pursuant to the rights, privileges, restrictions and conditions to the
Preferred Shares set out in the Articles of VM Canada, each holder of
Preferred Shares can cause VM Canada to redeem each Preferred Share and
upon such redemption each Preferred Share shall be exchanged for one
common share of the Issuer for no additional consideration. Xxxxxxx
Xxxxx, as an authorized signatory of PWMC, hereby agrees to deposit in
escrow with the Escrow Agent the share certificate for the Preferred
Shares and, as and when issued, all share certificates evidencing
common shares of the Issuer issued to PWMC on redemption of the
Preferred Shares held by PWMC to the extent that such shares have not
been released from escrow pursuant to the release schedule contained on
Schedule "B" of this Agreement.
3
SECURITY HOLDER
Name: Canaccord Capital Corporation ITF
--------------------------------------
Xxxxx Xxxxxx RRSP #260-119-S-1
--------------------------------------
Signature: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Address for Delivery: #0000 - 000 Xxxxxxxxx Xxxxxx
-----------------------------------
Vancouver, B.C.
-----------------------------------
X0X 0X0
-----------------------------------
SECURITIES:
----------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
----------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 82,500 (4)
------
----------------------------------------------------------------------------------------------------------
Total: 82,500
======
----------------------------------------------------------------------------------------------------------
(4) These shares are registered to Canaccord Capital Corporation ITF Xxxxx
Xxxxxx RRSP A/C#260-119-S-1.
SECURITY HOLDER
Name: Xxxxx Xxxxxx
--------------------------------------
Signature: /s/ Xxxxx Xxxxxx
--------------------------------------
Address for Delivery: 00000 00xx Xxxxxx
----------------------------------
Xxxxxxx, XX X0X 0X0
----------------------------------
SECURITIES:
----------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
----------------------------------------------------------------------------------------------------------
Preferred Shares of Voice Mobility Canada 1,312,500 (5)
Limited ---------
----------------------------------------------------------------------------------------------------------
Total: 1,312,500
=========
----------------------------------------------------------------------------------------------------------
4
(5) Xxxxx Xxxxxx is the registered holder of 1,312,500 Preferred Shares of
VM Canada and hereby agrees to deposit in escrow with the Escrow Agent
the share certificate for the Preferred Shares and, as and when issued,
all share certificates evidencing common shares of the Issuer issued to
Xxxxx Xxxxxx on redemption of the Preferred Shares held by Xxxxx Xxxxxx
to the extent that such shares have not been released from escrow
pursuant to the release schedule contained on Schedule "B" of this
Agreement.
5
SECURITY HOLDER
Name: Xxxx Xxxxxxxx
--------------------------------------
Signature: /s/ Xxxx Xxxxxxxx
--------------------------------------
Address for Delivery: 0000 Xxxxxxxxx Xxxxxx
----------------------------------
Halifax, Nova Scotia
----------------------------------
X0X 0X0
----------------------------------
SECURITIES:
----------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
----------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 15,000
------
----------------------------------------------------------------------------------------------------------
Total: 15,000
======
----------------------------------------------------------------------------------------------------------
6
SECURITY HOLDER
Name: Xxxxxxx Xxxxx Ltd. ITF
--------------------------------------------
Xxxxxx Xxxxxxxxxxx RRSP A/C# 22-629S-1
--------------------------------------------
Signature: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Address for Delivery: Xxxxx 0000, 000 Xxxx Xxxxxxxx Xxxxxx
----------------------------------------
Xxxxxxxxx X.X.
----------------------------------------
X0X 0X0
----------------------------------------
SECURITIES:
----------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
----------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 257,923 (6)
-------
----------------------------------------------------------------------------------------------------------
Total: 257,923
=======
----------------------------------------------------------------------------------------------------------
(6) These shares are registered to Xxxxxxx Xxxxx Ltd. ITF Xxxxxx
Xxxxxxxxxxx RRSP A/C#22-629S-1.
7
SECURITY HOLDER
Name: Xxxxx Xxxxxx
----------------------------------------
Signature: /s/ Xxxxx Xxxxxx
----------------------------------------
Address for Delivery: 00000 00xx Xxxxxx
------------------------------------
Xxxxxxx, XX
------------------------------------
X0X 0X0
------------------------------------
SECURITIES:
------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
------------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 27,584
------
------------------------------------------------------------------------------------------------------------
Total: 27,584
======
------------------------------------------------------------------------------------------------------------
8
SECURITY HOLDER
Name: E.W.G. Investments Ltd.
----------------------------------------
Per:
/s/ Xxxxx X. Both
----------------------------------------
Authorized Signatory
Address for Delivery: 000 Xxx Xxxx
------------------------------------
Xxxxxxxx, XX
------------------------------------
X0X 0X0
------------------------------------
SECURITIES:
------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION NUMBER CERTIFICATE(S) (IF APPLICABLE)
------------------------------------------------------------------------------------------------------------
Preferred Shares of VM Canada: 1,987,500 (6)
---------
------------------------------------------------------------------------------------------------------------
Total: 1,987,500
=========
------------------------------------------------------------------------------------------------------------
(6) E.W.G. Investments Ltd. is the registered holder of 1,987,500 Preferred
Shares of VM Canada and hereby agrees to deposit in escrow with the
Escrow Agent the share certificate for the Preferred Shares and, as and
when issued, all share certificates evidencing common shares of the
Issuer issued to E.W.G. Investments Ltd. on redemption of the Preferred
Shares held by E.W.G. Investments Ltd to the extent that such shares
have not been released from escrow pursuant to the release schedule
contained on Schedule "B" of this Agreement.
SCHEDULE "B"
------------------------------------------------------------------------------------------------------------
SECURITY HOLDER: XXXXXXX XXXXX LTD. ITF XXXXXXX XXXXX RRSP A/C#22-632S-6
------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION OF NUMBER OF SECURITIES TO BE
ESCROW RELEASE DATES SECURITIES RELEASED
------------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 66,666
------------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 33,334
------------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 33,333
Legended
------------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 66,667
Legended
------------------------------------------------------------------------------------------------------------
The unlegended shares are to be release before the legended shares.
------------------------------------------------------------------------------------------------------------
SECURITY HOLDER: PACIFIC WESTERN MORTGAGE CORPORATION
------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION OF NUMBER OF SECURITIES TO BE
ESCROW RELEASE DATES SECURITIES RELEASED
------------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 170,833
------------------------------------------------------------------------------------------------------------
Preferred Shares of VM Canada 312,500
------------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 170,833
------------------------------------------------------------------------------------------------------------
Preferred Shares of VM Canada 312,500
------------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 170,834
------------------------------------------------------------------------------------------------------------
Preferred Shares of VM Canada 312,500
------------------------------------------------------------------------------------------------------------
2
------------------------------------------------------------------------------------------------------------
SECURITY HOLDER: CANACCORD CAPITAL CORPORATION ITF XXXXX XXXXXX RRSP A/C#260-119-S-1
------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION OF NUMBER OF SECURITIES TO BE
ESCROW RELEASE DATES SECURITIES RELEASED
------------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 27,500
------------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 27,500
Legended
------------------------------------------------------------------------------------------------------------
Common Shares of the Issuer 27,500
Legended
------------------------------------------------------------------------------------------------------------
The unlegended shares are to be released before the legended shares.
------------------------------------------------------------------------------------------------------------
SECURITY HOLDER: XXXXX XXXXXX
------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION OF NUMBER OF SECURITIES TO BE
ESCROW RELEASE DATES SECURITIES RELEASED
------------------------------------------------------------------------------------------------------------
Preferred Shares of VM Canada 437,500
------------------------------------------------------------------------------------------------------------
Preferred Shares of VM Canada 437,500
------------------------------------------------------------------------------------------------------------
Preferred Shares of VM Canada 437,500
------------------------------------------------------------------------------------------------------------
SECURITY HOLDER: XXXX XXXXXXXX
------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION OF NUMBER OF SECURITIES TO BE
ESCROW RELEASE DATES SECURITIES RELEASED
------------------------------------------------------------------------------------------------------------
Common Shares 5,000
------------------------------------------------------------------------------------------------------------
Common Shares 5,000
------------------------------------------------------------------------------------------------------------
Common Shares 5,000
------------------------------------------------------------------------------------------------------------
3
SECURITY HOLDER: XXXXXXX XXXXX LTD. ITF XXXXXX XXXXXXXXXXX RRSP A/C# 22-629S-1
------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION OF NUMBER OF SECURITIES TO BE
ESCROW RELEASE DATES SECURITIES RELEASED
------------------------------------------------------------------------------------------------------------
Common Shares 85,974
------------------------------------------------------------------------------------------------------------
Common Shares 85,974
------------------------------------------------------------------------------------------------------------
Common Shares 85,975
------------------------------------------------------------------------------------------------------------
SECURITY HOLDER: XXXXX XXXXXX
------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION OF NUMBER OF SECURITIES TO BE
ESCROW RELEASE DATES SECURITIES RELEASED
------------------------------------------------------------------------------------------------------------
Common Shares 9,194
------------------------------------------------------------------------------------------------------------
Common Shares 9,194
------------------------------------------------------------------------------------------------------------
Common Shares 9,194
------------------------------------------------------------------------------------------------------------
SECURITY HOLDER: E.W.G. INVESTMENTS LTD.
------------------------------------------------------------------------------------------------------------
CLASS OR DESCRIPTION OF NUMBER OF SECURITIES TO BE
ESCROW RELEASE DATES SECURITIES RELEASED
------------------------------------------------------------------------------------------------------------
Preferred Shares of VM Canada 662,500
------------------------------------------------------------------------------------------------------------
Preferred Shares of VM Canada 662,500
------------------------------------------------------------------------------------------------------------
Preferred Shares of VM Canada 662,500
------------------------------------------------------------------------------------------------------------
SCHEDULE "C"
Acknowledgment and Agreement to be Bound
The undersigned hereby acknowledges that the securities listed in the attached
Schedule "A" (the "Securities") have been or will be transferred to the
undersigned and that such securities are subject to an Escrow Agreement dated
__________________________ (the "Escrow Agreement").
In consideration of $1.00 and other good and valuable consideration (the receipt
and sufficiency of which are acknowledged), the undersigned agrees to be bound
by the Escrow Agreement in respect of the Securities, as if the undersigned was
an original signatory to the Escrow Agreement.
Dated at ____________________ on ______________.
Where the Securityholder is an individual:
SIGNED, SEALED & DELIVERED )
by )
in the presence of: )
)
)
----------------------------------------- ----------------------------------
Signature of Witness )
)
Name of Witness: )
-------------------------
Address of Witness: )
----------------------
)
)
-----------------------------------------
Occupation of Witness: )
-------------------
Where the transferee is a corporation:
SIGNED, SEALED AND DELIVERED BY
per:
-----------------------------------------
Authorized Signatory
Name of Signatory:
-----------------------
Title of Signatory:
----------------------
