EXHIBIT 10.7
The Alberta Stock Exchange Form 10A
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ESCROW AGREEMENT
(Timed Release)
THIS AGREEMENT made in triplicate, as of this 28th day of April, 1998.
AMONG:
INZECO HOLDINGS INC.
(herein called the "Issuer")
OF THE FIRST PART
- and -
MONTREAL TRUST COMPANY OF CANADA
(herein called the "Trustee")
OF THE SECOND PART
- and -
ROGER J. SHORT, WILLIAM R. BEAVERS, GREENSULATE L.L.C.,
SHEILA M. FINN, WARREN D. ARSENEAU, MICHAEL BOYD,
JUNIOR INDUSTRIAL FINANCE CORP., ROBERT H. STIKEMAN,
GUNDYCO IN TRUST FOR SHEILA FINN RRSP ACCOUNT #550-28824-17,
T/D INVESTOR COMPANY IN TRUST FOR MIKE BOYD RRSP
ACCOUNT #140422-S, RBC DOMINION IN TRUST FOR WILLIAM
BEAVERS RRSP ACCOUNT #49380616-1-3
(herein called the "Securityholders")
OF THE THIRD PART
WHEREAS, in order to comply with the requirements of the Alberta
Securities Act, S.A. 1981, c.S-6.1 as amended. The Alberta Stock Exchange (the
"Exchange"), the Securityholders have agreed to deposit certain securities of
the Issuer owned or to be received by them into escrow in accordance with the
terms of this Escrow Agreement (the "Agreement");
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October 1997 10A-1
The Alberta Stock Exchange Form 10A
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AND WHEREAS, the Trustees has agreed to undertake and perform its
duties according to the terms and conditions of this Agreement;
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 Securityholders jointly and
severally covenant and agree with the Issuer and with the Trustee, and the
Issuer and the Trustee covenant and agree each with the other and with the
Securityholders jointly and severally as follows:
1. Each of the Securityholders hereby places and deposits in escrow
with the Trustee those of the Securityholder's securities of the
Issuer described in Schedule "A" (the "Escrowed Securities") and
the Trustee hereby acknowledges receipt of such securities. Each
Securityholder further undertakes and agrees to deposit into
escrow any further securities of the Issuer which the Security
holder may receive as a stock dividend on the Escrowed Securities
and to deliver to the Trustee immediately on receipt thereof the
certificates (if any) for any such further securities and any
replacement certificates which may at any time be issued for any
of the Escrowed Securities.
2. Each of the Securityholders shall be entitled to a letter or receipt
from the Trustee stating the number of securities held for the
Securityholder by the Trustee subject to the terms of this Agreement.
It is expressly understood and agreed by the parties hereto that such
letter or receipt shall not be assignable or transferrable.
3. Each of the Securityholders hereby underakes and agrees to deposit in
escrow with the Trustee any securities of the Issuer owned or acquired
by the Securityholder in accordance with the escrow restrictions
imposed by the Exchange.
4. Except as provided in paragraph 6, the parties agree that the Escrowed
Securities and the beneficial ownership of or interest in them and the
certificates representing them (including any re placement
certificates) shall remain in escrow and shall be released only on the
written consent of the Exchange to the Trustee.
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October 1997 10A-2
The Alberta Stock Exchange Form 10A
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5. The parties direct the Trustee to retain their respective Escrowed
Securities, the beneficial ownership in them and the certificates
representing them (including any replacement securities or certi
ficates) and not to do or cause anything to be done to release them
from escrow or to allow any transfer, hypothecation or alienation
thereof, except in accordance with paragraphs 6, 9 or 10 or on the
written consent of the Exchange where required.
6. The Escrowed Securities shall be released from escrow as to one
third thereof on each of the first, second and third anniversaries
of Completion of the Major Transaction. For greater certainty, the
words "Completion of the Major Transaction", "Major Transaction",
"Junior Capital Pool", or "JCP" shall have the same meaning as
ascribed to them from time to time in Circular 7 and/or Alberta
Securities Commission Rule 46-501. To determine the date of
Completion of the Major Transaction for the purposes of determin
ing the release date of any Escrowed Securities, the Trustee may
rely on the date specified in the Bulletin issued by the Exchange
confirming that the Major Transaction has been completed and the
Issuer is no longer considered a JCP. The responsibility for the
timely delivery to the Trustee of the Bulletin of The Alberta
Stock Exchange lies with the Issuer and/or the Securityholders.
7. Notwithstanding paragraph 6, if the Trustee receives written
notification from the Exchange prohibiting further releases from
escrow, the parties agree that the Trustee shall not permit any further
releases of the Escrowed Securities unless and until the Trustees has
received the written consent of the Exchange.
8. The parties agree that a partial release of the Escrowed Securi
ties shall release from escrow only the securities specified in
it, and this Agreement shall continue in full force and effect in
respect of those securities as may from time to time remain in
escrow until all of the Escrowed Securities have been either
released pursuant to paragraph 6 or on the written consent of the
Exchange where required. For greater certainty, this paragraph
does not apply to securities transferred within escrow.
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October 1997 10A-3
The Alberta Stock Exchange Form 10A
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9. In the event of bankruptcy or death of a Securityholder, the Trustee,
upon receipt of written notification by the Exchange, may transmit the
Securityholder's securities by operation of law to the trustee in
bankruptcy, personal representative or surviving joint tenant as the
case may be but, notwithstanding such trans mission, the securities
shall remain subject to the terms of this Agreement.
10. The Exchange may consent in writing to the transfer within escrow
or hypothecation within escrow of any of the Escrowed Securities,
subject to an agreement in writing by the transferee or mortgagee
to be bound by this Agreement and subject also to such other terms
and conditions as the Exchange may impose, and the Trustee, on
receipt of the written consent of the Exchange and of the agree
ment of the transferee or mortgagee as described, shall permit
such transfer within escrow or hypothecation within escrow.
11. Any Securityholder applying to the Exchange for consent for any
transfer of the Escrowed Securities within escrow shall, before
applying, give reasonable notice in writing of his intention to do so
both the Issuer and the Trustee. The Securityholders hereby acknowledge
that any transferee of any of the Escrowed Securities which are subject
to this Agreement shall be required to become bound by all of the
provisions hereof.
12. All voting rights attached to the Escrowed Securities shall at all
times be exercised by the respective registered owners thereof.
13. The Securityholders agree that, while any of their securities are held
in escrow under this Agreement, they will not, without the prior
written consent of the Exchange, vote any of their securi ties (whether
escrowed or not) in support of any arrangement that would result in a
repayment of capital being made on the Escrowed Securities prior to the
commencement of any winding up of the Issuer.
14. The Securityholders hereby renounce and release any right to receive
payment of any dividend (other than a stock dividend) which may be
payable on any Escrowed Securities with the intent that the dividend
shall not be paid on securities which are in escrow on the record date
set for the dividend.
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October 1997 10A-4
The Alberta Stock Exchange Form 10A
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15. If the Issuer is wound up and any securities remain in escrow
under this Agreement at the time when assets of the Issuer are
distributed to securityholders pursuant to the winding up, the
Securityholders do hereby assign their right to receive that part
of the distribution which is attributable to the Escrowed Securi
ties to the Trustee, for the benefit of, and in trust for the
persons and companies who are then securityholders of the Issuer
whose securities are not subject to this Agreement, rateably in
proportion of their holdings.
16. The Trustees hereby accepts the responsibilities placed upon it by this
Agreement and agrees to perform them in accordance with the terms of
this Agreement and the written consents, orders or directions of the
Exchange.
17. The Issuer hereby acknowledges the terms and conditions of this
Agreement and agrees to take all reasonable steps to facilitate the
Issuer's performance under this Agreement and to pay the Trustee's
proper charges for its services under this Agreement.
18. The Securityholders and the Issuer hereby jointly and severally agree
to and do hereby release and indemnify and save harmless the Trustee
from and against all claims, suits, demands, costs, damages and
expenses which may be occasioned by reason of the Trustee's compliance
in good faith with the terms hereof.
19. The Securityholders and the Issuer hereby jointly and severally agree
to and do hereby release and indemnify the Exchange, its governors,
officers and employees from and against all claims, suits, demands,
costs, damages and expenses which may be occasioned by reason of the
enforcement by the Exchange of any provision or provisions of this
Agreement.
20. In the event the Trustee wishes to resign, retire or otherwise
terminate its obligations pursuant to this Agreement, it shall be
required to provide at least ninety (90) days written notice to
the Issuer. Upon receipt of such notice, the Issuer may, with the
written consent of the Exchange, by writing, appoint another
Trustee in its place and such appointment shall be binding on the
Securityholders, and the new Trustee shall assume and be bound by
the obligations of the Trustee hereunder.
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October 1997 10A-5
The Alberta Stock Exchange Form 10A
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21. The covenants of the Securityholders with the Issuer in this agreement
are made with the Issuer both in its own right and as trustee for the
holders from time to time of free securities in the Issuer, and may be
enforced not only by the Issuer but also by any holder of free
securities.
22. This Agreement may be executed in several parts of the same form and
the parts as so executed shall together constitute 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.
23. This Agreement may be amended upon agreement of the Issuer, the Trustee
and the Securityholders and upon the written consent having been
obtained from the Exchange.
24. This Agreement, Schedule "A" and all notes and instructions
referred to herein constitute the entire understanding between the
parties hereto with respect to the subject matter hereof and
supersede all prior agreements, understandings, negotiations and
discussions, whether oral or written, between the parties and
there are no warranties, representations or other agreements
between the parties in connection with this Agreement, except as
specifically set forth herein.
25. No waiver, modification or termination of this Agreement shall be
binding on any of the parties unless executed in writing by all parties
hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision (whether
similar or not), nor shall any waiver constitute a continuing waiver,
unless expressly provided.
26. This Agreement shall be interpreted in accordance with and governed in
all respects by the laws of the Province of Alberta. The courts of
Alberta shall have non-exclusive jurisdiction to entertain any action
or proceeding brought by or against the Exchange or any of the parties.
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October 1997 10A-6
The Alberta Stock Exchange Form 10A
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27. This Agreement shall be read with all changes in gender or number
as the context may require, and the word "person" or "persons" as
used in this Agreement shall be deemed to include firms, partner
ships, corporations and associations as well as natural persons.
Further, the term "Securityholders" shall include any permitted
transferees within escrow and any person to whom the interest of
a Securityholder may be transmitted by operation of law as
provided in paragraph 9 and the term "Trustee" shall include a new
Trustee appointed under paragraph 20, and whenever the singular or
masculine is used, the same shall be construed to include the
plural, feminine, neuter or a corporate or other entity where the
context so requires.
28. Any provision or any portion of any provision or provisions of
this Agreement determined by a court of competent jurisdiction to
be invalid, illegal or unenforceable shall be deemed stricken to
the extent necessary to eliminate any invalidity, illegality or
unenforceability and the rest of the Agreement and all other
provisions and parts thereof shall remain in full force and effect
and be binding upon the parties hereto as though the said illegal
and/or unenforceable provision or provisions or part or parts
thereof had never been included in this Agreement.
29. This Agreement shall enure to the benefit of and be binding on each of
the parties to this Agreement and each of their heirs, executors,
administrators, successors and assigns.
IN WITNESS WHEREOF, the Issuer, the Trustee and the Security holders
have executed this Agreement as of the date and year first above written.
INZECO HOLDINGS INC.
Per: /s/ Roger Short
--------------------------
Per:
-------------------------- (corporate seal)
MONTREAL TRUST COMPANY OF CANADA
Per: /s/ Gloria Collins
--------------------------
Per:
-------------------------- (corporate seal)
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October 1997 10A-7
The Alberta Stock Exchange Form 10A
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SIGNED by the respective Securityholders whose names are specified in
the right hand column below in the presence of the witness to such signature as
indicated opposite the signature of each Securityholder as specified in the
left hand column below.
Securityholders
/s/ Roger J. Short
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/s/ William R. Beavers
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/s/ Sheila M. Finn
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/s/ Warren D. Arseneau
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/s/ Michael Boyd
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/s/ Robert H. Stikeman
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GREENSULATE L.L.C.
Per: /s/ name of signatory illegible
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JUNIOR INDUSTRIAL FINANCE CORP.
Per: /s/ Michael Boyd
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October 1997 10A-8
The Alberta Stock Exchange Form 10A
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RBC DOMINION IN TRUST FOR WILLIAM
BEAVERS RRSP ACCOUNT #49380616-1-3
Per: /s/ name of signatory illegible
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GUNDYCO IN TRUST FOR SHEILA FINN
RRSP ACCOUNT #550-28824-17
Per: /s/ name of signatory illegible
--------------------------------
T/D INVESTOR COMPANY IN TRUST FOR
MIKE BOYD RRSP ACCOUNT #140422-S
Per: /s/ name of signatory illegible
--------------------------------
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October 1997 10A-9
The Alberta Stock Exchange Form 10A
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SCHEDULE "A"
to the Escrow Agreement dated as of the 28th day of April,
1998. Between the Issuer, the Trustee and the Securityholders
noted herein.
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Name of Securityholders Type of Securities Number of Securities
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ROGER J. SHORT Common Shares 123,753
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WILLIAM R. BEAVERS Common Shares 49,000
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RBC DOMINION IN TRUST Common Shares 28,270
FOR WILLIAM BEAVERS RRSP
ACCOUNT #49380616-1-3
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GREENSULATE L.L.C. Common Shares 612,482
(a corporation controlled
by Martin H. Beck)
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SHEILA M. FINN Common Shares 54,527
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GUNDYCO IN TRUST FOR Common Shares 24,500
SHEILA FINN RRSP
ACCOUNT #550-28824-17
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WARREN D. ARSENEAU Common Shares 597,197
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MICHAEL BOYD Common Shares 43,974
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T/D INVESTOR COMPANY IN Common Shares 18,846
TRUST FOR MIKE BOYD RRSP
ACCOUNT #140422-S
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JUNIOR INDUSTRIAL FINANCE Common Shares 48,245
CORP. (a corporation
wholly owned by Michael
Boyd)
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ROBERT H. STIKEMAN Common Shares 40,204
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October 1997 10A-10