ESCROW AGREEMENT
Exhibit 10.1
THIS
AGREEMENT is made effective the 2nd day
of November, 2009.
BETWEEN:
INSIGHTFULMIND LEARNING INC.,
a company incorporated under the laws of Canada and having registered office at
1600 – 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter
called the "Company")
AND:
XXXX XXXXXXX, an individual,
having a place of residence at 00000 Xxxxx Xxxxx Xxxx, Xxxxx Xxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0
(hereinafter
called "MB")
AND:
XXXXXXXXX XXXXXXX, an
individual, having a place of residence at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter
called "JT")
WHEREAS:
A. The
parties hereto are, together with others, parties to a share purchase agreement
(the "Purchase
Agreement") made effective the 10th day
of August, 2009, pursuant to which the Company is to acquire all of the issued
and outstanding share capital of Coronus Energy Corp. ("Coronus");
B.
Pursuant
to the terms of the Purchase Agreement, upon completion of the Acquisition and
the Transfer (each as defined in the Purchase Agreement):
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(a)
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MB
is required to enter into an escrow agreement pursuant to which (i) the
1,000,000 common shares of the Company acquired by him as a result of the
Acquisition, (ii) the 1,012,500 common shares acquired by him as a result
of the Transfer, and (iii) the 250,000 common shares of the Company
currently held by him, will be escrowed (collectively, the "MB Shares");
and
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(b)
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JT
is required to enter into an escrow agreement pursuant to which the
balance of 2,262,500 common shares of the Company held by him, after
giving effect to the Transfer, will be escrowed (the "JT
Shares");
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C. This
Agreement is intended to be the escrow agreement and to give effect to and
govern the escrow set out in Recital B hereto;
NOW THEREFORE, this
Agreement witness that for good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1
Number, gender,
persons. Words importing the singular number shall include the
plural, and vice versa; words importing gender shall include the other gender;
words importing individuals shall include corporations, societies, partnerships,
proprietorships, trusts and other legal constructs and entities, and vice versa;
and words importing any particular form of legal construct or entity shall
include all other forms of legal constructs and entities
interchangeably.
1.2 Time and
currency. Unless otherwise expressly stated, all references to
time are references to Pacific Time, and all references to currency are
references to lawful currency of the United States.
1.3
Headings. The use
of headings in this Agreement and the schedules hereto are solely for ease of
reference and shall not affect the interpretation or the construction of any
provision hereof.
1.4
References. Unless
otherwise stated, a reference to an Article, Section or other organizational
division shall refer to the respective Article, Section or other organizational
division of this Agreement.
ARTICLE 2
ESCROW
2.1
Condition
Precedent. This Agreement and the parties' rights and
obligations hereunder shall be subject to the completion of both the Acquisition
and the Transfer (both as defined in the Purchase Agreement).
2.2 Delivery into
Escrow. Upon completion of both the Acquisition and the
Transfer:
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(a)
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MB
shall immediately deliver to the Company or its designated escrow agent,
certificates representing the MB Shares;
and
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(b)
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JT
shall immediately deliver to the Company or its designated escrow agent,
certificates representing the JT
Shares,
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to be
held in escrow pursuant to the terms hereof until released pursuant to Article 3
hereof. For greater certainty, each of MB and JT (collectively, the
"Escrowed Persons")
irrevocably directs the Company or its designated agent to retain their
respective MB Shares and the JT Shares (collectively, the "Escrowed Shares") pursuant to
the terms of this Agreement.
2.3 Effect of
Escrow. Except as specifically provided herein, no Escrowed
Person shall sell, assign, transfer, encumber or otherwise dispose of or deal
with, in any manner whatsoever, any of the Escrowed Shares or any beneficial
ownership thereof or any interest therein, or otherwise agree to or permit any
of the foregoing, unless, until and to the extent that such Escrowed Shares are
released from escrow pursuant to Article 3 hereof.
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2.4 Corporate Enforcement of
Escrow. Except as specifically provided herein, the Company
shall not accept or acknowledge any sale, assignment, transfer, encumbrance or
other disposition of or dealing with any of the Escrowed Shares, or any
beneficial ownership thereof or any interest therein, unless, until and to the
extent that such Escrowed Shares are released from escrow pursuant to the terms
hereof, including but not limited to any declaration of trust or any other
documents or acts evidencing any change in legal or beneficial ownership of or
any interest in the Escrowed Shares.
2.5
Other Shareholder
Rights. The Escrowed Persons waive no other shareholder rights
or privileges attached to the Escrowed Shares, except as required by section 2.4
herein. For greater certainty, the Escrowed Persons may exercise all
voting rights attached to the Escrowed Shares and are entitled to receive all
dividends and other distributions on the Escrowed Shares if, as and when
declared.
2.6
Death of Escrowed
Person. Upon the death of an Escrowed Person, his respective
Escrowed Shares remaining in escrow may be transferred to the persons legally
entitled thereto, but such Escrowed Shares shall remain in escrow pursuant to
the terms hereof until released from escrow pursuant to Article 3
hereof. For greater certainty, each recipient of Escrowed Shares
shall thereafter be an Escrowed Person bound by the provisions
hereof.
2.7 Termination. This
Agreement shall automatically terminate upon the release from escrow pursuant to
the terms hereof of all Escrowed Shares. This Agreement and the
rights and obligations of the parties hereto shall not otherwise be terminated
without the express written consent of all the parties hereto.
ARTICLE 3
RELEASE FROM
ESCROW
3.1
Release from
Escrow. As soon as practicable after the end of each calendar
quarter (being a three month period ending on March 31, June 30, September 30
and December 31), the Company shall determine the consolidated revenue earned by
it in said calendar quarter, and upon such determination shall immediately
release from escrow hereunder:
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(a)
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one
MB Share to the account of MB; and
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(b)
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one
JT Share to the account of JT,
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for each
$1.00 in consolidated revenue earned by the Company in said calendar
quarter. For greater certainty, in the event that the MB Shares (or
JT Shares) in escrow are held by more than one person, the Escrowed Shares
released to the account of MB or JT, as the case may be, shall be released on a
pro-rata basis amongst the subsequent holders of the MB Shares or JT Shares in
escrow, as the case may be.
3.2
Capital
Adjustments. If at any time during the Term of this Agreement,
there shall be a reclassification of the Issuer's common shares, a change in the
Issuer's common shares into other shares or securities, a subdivision or
consolidation of the Issuer's common shares into a greater or lesser number of
common shares, or any other capital reorganization, the respective number of MB
Shares and JT Shares releasable pursuant to section 3.1 shall be adjusted
proportionately
ARTICLE 4
ESCROW
AGENT
4.1
Escrow Agent. The
Company shall be entitled, but shall not be required, to appoint an agent for
the purpose of implementing and maintaining the escrow provided for
herein. The parties hereto irrevocably and unconditionally
acknowledge and agree with each other that the person from time to time
implementing and maintaining the escrow provided for herein (the "Escrow Agent"), whether it be
the Company or another appointed by it, shall have the following rights and
protections:
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(a)
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The
Escrow Agent shall not have any duties or responsibilities except those
set forth in this Agreement. The Escrow Agent is not a party
to, and is not bound by, any provisions which may be evidenced by, or
arise out of, any agreement or understanding related to the Escrowed
Shares or the escrow thereof other than as herein set
forth.
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(b)
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The
Escrow Agent is not a registrar or transfer agent for any shares, options
or other securities in the capital of the Company and has no obligation to
inquire about the issuance of, ownership of or title to any such
securities.
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(c)
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The
Escrow Agent acts hereunder as a depository only and is not responsible or
liable in any manner whatever for the genuineness, validity, correctness
or sufficiency of any instrument deposited with it, or for the form of
execution of any such instrument, or for the identity or authority or
right of any person or party executing such
instrument.
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(d)
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The
Escrow Agent shall not be responsible for or incur any liability for
acting on any signature, request, consent, waiver, receipt or other
notice, authorizations or documents believed by the Escrow Agent to be
genuine, and the Escrow Agent may, acting reasonably, assume that any
person purporting to give it any notice, authorization or document on
behalf of any party in accordance with the provisions of this Agreement
has been duly authorized and has the right to do
so.
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(e)
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The
Escrow Agent shall be entitled to rely on all documents provided to it
without further investigation or inquiry into the genuineness, validity,
correctness, sufficiency or reasonableness of such
document. The Escrow Agent shall not be required to construe
any contract or instrument deposited with it, if
any.
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(f)
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The
Escrow Agent shall not be required to take notice of any default or to
take any action with respect to such default involving any expense or
liability, unless notice in writing of such default is formally given to
the Escrow Agent and unless it is indemnified, in a manner satisfactory to
it, against such expense or
liability.
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(g)
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The
Escrow Agent may, at its discretion, seek the advice of legal counsel in
the event of any question or dispute as to the construction of any of the
provisions hereof or its duties hereunder, and it shall incur no liability
and shall be entitled to act or refrain from acting in accordance with the
advice or instructions of such legal
counsel.
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(h)
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The
Escrow Agent shall not be answerable for the default or misconduct of any
agent or legal counsel employed or appointed by it if such agent or legal
counsel shall have been selected with reasonable
care.
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(i)
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In
the event of any disagreement between any of the parties to this
Agreement, or between them or any of them and any other person, resulting
in demands or adverse claims being made in connection with or for any
asset involved herein or affected hereby, the Escrow Agent shall be
entitled, at its discretion, to refuse to comply with any demands or
claims on it, so long as such disagreement shall continue, and in so
refusing the Escrow Agent may make no delivery or other disposition of any
asset involved herein or affected hereby, and in so doing the Escrow Agent
shall not be or become liable in any way or to any party or person for its
failure or refusal to comply with such conflicting demands or adverse
claims, and it shall be entitled to continue to so refrain from acting and
to so refuse to act until the right of such party or person shall have
finally been adjudicated in a court assuming and having jurisdiction over
the assets involved herein or affected hereby, or all differences shall
have been resolved and the Escrow Agent shall have been notified thereof
in writing signed by all parties
thereto.
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(j)
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The
Escrow Agent shall be entitled to comply with and obey all judgments or
orders granted, made or issued by any court of the Province of British
Columbia whether the said court shall have jurisdiction to make such
judgment or order or not, and in the event that the Escrow Agent complies
with or obeys any such judgment or order of any such court, it shall not
be liable to any of the parties or to any other person by reason of it
notwithstanding the fact that the judgment or order may have been entered
by a court not having jurisdiction to grant the judgment or order, or the
judgment or order is thereafter modified, reversed, annulled, set aside or
vacated. In the event that the Escrow Agent is made a party to
any such action or proceeding affecting the Escrowed Shares, it shall be
entitled to receive from the Company or any other parties payment of any
reasonable legal fees it may be required to incur, whether the solicitors
were retained by it on a regular basis or are employed for the purpose of
such action or proceeding only, and any other expense which it may have
incurred or become liable to pay because of the deposit with it of the
Escrowed Shares, and the Company agrees to jointly and severally with any
other parties pay to the Escrow Agent on demand all such fees and expenses
incurred by it and any costs or other amounts that may be imposed on it in
any judgment or order granted as stated in this
Agreement.
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(k)
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The
Escrow Agent shall not be responsible for any act or failure to act on its
part except in the case of its own wilful default or gross
negligence. The Escrow Agent shall be automatically released
from all responsibility and liability under this Agreement on the Escrow
Agent's delivery of the Escrowed Shares in accordance with the provisions
of this Agreement.
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(l)
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The
Escrowed Persons and the Company agree to jointly and severally indemnify
and hold harmless the Escrow Agent for any claims, losses, damages, costs
and expenses, including any fees, disbursements and out-of-pocket expenses
of any agent or legal counsel retained by the Escrow Agent, related to the
performance of its obligations
hereunder.
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(m)
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Notwithstanding
anything to the contrary, the Escrow Agent shall have no duty to determine
the performance or non-performance of any term or condition of any
contract or agreement between the parties, including this Agreement, and
the duties and responsibilities of the Escrow Agent are limited to those
specifically stated in this
Agreement.
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4.2
For
greater certainty, upon the Company's appointment from time to time of another
as Escrow Agent, the parties hereto irrevocably and unconditionally acknowledge
and agree with each other and said Escrow Agent (who shall be deemed to be a
party to this Agreement) that the Company's rights and protections as Escrow
Agent hereunder are assigned to said Escrow Agent without further act or
notice.
ARTICLE 5
ESCROWED PERSONS'
REPRESENTATIONS AND WARRANTIES
5.1
Escrowed Persons' representations and
warranties. Each Escrowed Person represents and warrants to
the Company that:
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(a)
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the
Escrowed Person has not sold, assigned, transferred, encumbered or
otherwise disposed of or dealt with, directly or indirectly, in any manner
whatsoever, any of his respective Escrowed Shares or any beneficial
ownership thereof or any interest therein, or otherwise agreed to or
permitted any of the foregoing,
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(b)
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no
person has any option, agreement or other right or privilege to acquire
any of the Escrowed Person's respective Escrowed Shares or any interest
therein;
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(c)
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the
Escrowed Person has the full power and authority and lawful right, and in
the case of a corporation or other legal construct or entity, has taken
all such corporate and other action and received all such authorizations
as are necessary or advisable, to enter into and to perform its
obligations under this Agreement;
and
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(d)
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this
Agreement has been duly and validly executed and delivered by the Escrowed
Person and is binding upon and enforceable against it in accordance with
its terms.
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ARTICLE 6
GENERAL
6.1
Notices. All
notices and communications required or permitted to be given hereunder shall be
in writing and shall be personally delivered or sent by facsimile (with
confirmed receipt) or prepaid mail to the recipient at its respective address
indicated on the face page hereof. Such shall be deemed to be validly
given and received: (i) if personally delivered or sent by facsimile
transmission (with confirmed receipt), on the date of delivery or transmission
if delivered or transmitted during normal business hours and on the next
business day following the date of delivery or transmission if delivered or
transmitted after normal business hours; and (ii) if sent by prepaid mail, on
the date which is five (5) business days after the date of mailing excluding all
days in which postal service is disrupted. Either party may from time
to time change its address by notice to the other in accordance with this
section.
6.2
Entire agreement and
Amendment. This Agreement sets forth the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior communications, understandings and agreements between the parties or any
of them with respect to the subject matter hereof. This Agreement may
only be amended by instrument in writing signed by the parties hereto, including
as applicable the Escrow Agent in respect of any amendment to Article
4.
6.3
Further
Assurances. Each party hereto agrees to execute and deliver,
or cause to be executed and delivered, such further instruments and assurances,
and to do such further acts and things, as may be necessary or desirable to give
effect to this Agreement.
6.4 Assignment and
enurement. This Agreement is personal in nature and shall not
be assigned or otherwise transferred, in whole or in part, without the express
written consent of the parties hereto. This Agreement shall enure to
the benefit of and be binding on the parties and their respective executors,
heirs, administrators, successors and permitted assigns.
6.5 Governing law. This
Agreement and the rights and obligations and relations of the parties shall be
governed by and construed in accordance with the laws of the Province of British
Columbia and the federal laws of Canada applicable therein. The
parties agree that the courts of British Columbia shall have sole jurisdiction
to entertain any action or other legal proceedings based on any provisions of
this Agreement, and the parties agree to attorn to the jurisdiction of such
courts.
6.6 Construction. This
Agreement has been negotiated and approved by the parties hereto and,
notwithstanding any rule or maxim of construction to the contrary, any ambiguity
or uncertainty will not be construed against any party hereto by reason of the
authorship thereof.
6.7 Counterparts and
delivery. This Agreement may be executed in counterparts and
delivered by facsimile, and such counterparts and facsimiles when howsoever
signed or delivered shall be deemed to be originally executed documents and
together constitute one and the same executed instrument bearing the date set
forth above notwithstanding the date of actual execution.
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6.8
Time. Time shall be
of the essence hereof.
IN WITNESS WHEREOF the
parties have executed this Agreement as of the date first above
written.
INSIGHTFULMIND
LEARNING INC.
Per: XXXXX XXXXXX
Authorized
Signatory, Xxxxx Xxxxxx, Director
| Signed by XXXX XXXXXXX | ) | ||
| in the presence of: | ) | ||
| ) | |||
| Xxxxxxxxx Xxxxxxx | ) | ||
| Print Name | ) | ||
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XXXXXXXXX
XXXXXXX
|
) | XXXX XXXXXXX | |
| Signature | ) | XXXX XXXXXXX | |
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0000 Xxxxxx Xx. Xxxxx Xxxx,
X.X.
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) | ||
| Address | ) | ||
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Businessman
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) | ||
| Occupation | ) | ||
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Signed by XXXXXXXXX
XXXXXXX
in the presence
of:
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Xxxx Xxxxxxx
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| Print Name | ) | ||
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XXXX
XXXXXXX
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) | XXXXXXXXX XXXXXXX | |
| Signature | ) | XXXXXXXXX XXXXXXX | |
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00000 Xxxxx Xxxxx Xx, Xxxxx Xxxx,
X.X.
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) | ||
| Address | ) | ||
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Businessman
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) | ||
| Occupation | ) | ||
