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EXHIBIT 99.1
ESCROW AGREEMENT
THIS AGREEMENT is dated for reference the 8th day of April, 1994
and made
AMONG:
PACIFIC CORPORATE TRUST COMPANY, a trust company having its
principal place of business in the City of Vancouver at 830 - 625
Howe Street, Vancouver, British Columbia; (the "Escrow Agent")
AND:
CONSOLIDATED NEWJAY RESOURCES LTD., a company incorporated under
the laws of British Columbia and having an office at 1200 - 1090
West Pender Street, Vancouver, British Columbia; (the "Issuer")
AND:
EACH SHAREHOLDER, as defined in this Agreement; (collectively the
"Parties").
WHEREAS the Shareholder has acquired or is about to acquire
shares of the Issuer;
AND WHEREAS the Escrow Agent has agreed to act as escrow agent in
respect of the shares upon the acquisition of the shares by the
Shareholder;
NOW THEREFORE in consideration of the covenants contained in this
agreement and other good and valuable consideration (the receipt
and sufficiency of which is acknowledged), the Parties agree as
follows:
1. INTERPRETATION
In this agreement:
(a) "Acknowledgement" means the acknowledgement and
agreement to be bound in the form attached as Schedule A to this
agreement;
(b) "Act" means the Securities Act, S.B.C. 1985, C. 183;
(c) "Exchange" means the Vancouver Stock Exchange;
(d) "Local Policy Statement 3-07" means the Local Policy
Statement 3-07 in effect as of the date of reference of this
agreement and attached, not including its appendices, as Schedule
B to this agreement;
(e) "Shareholder" means a holder of shares of the Issuer
who executes this agreement or an Acknowledgement;
(f) "Shares" means the shares of the Shareholder
described in Schedule C to this agreement, as amended from time
to time in accordance with section 9;
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(g) "Superintendent" means the Superintendent of Brokers
appointed under the Act; and
(h) "Superintendent or the Exchange" means the
Superintendent, if the shares of the Issuer are not listed on the
Exchange, or the Exchange, if the shares of the Issuer are listed
on the Exchange.
2. PLACEMENT OF SHARES IN ESCROW
The Shareholder places the Shares in escrow with the Escrow Agent
and shall deliver the certificates representing the Shares to the
Escrow Agent as soon as practicable.
3. VOTING OF SHARES IN ESCROW
Except as provided by section 4(a), the Shareholder may exercise
all voting rights attached to the Shares.
4. WAIVER OF SHAREHOLDERS' RIGHTS
The Shareholder waives the rights attached to the Shares
(a) to vote the Shares on a resolution to cancel any of
the Shares
(b) to receive dividends, and
(c) to participate in the assets and property of the
Issuer on a winding up or dissolution of the Issuer.
5. ABSTENTION FROM VOTING AS A DIRECTOR
A Shareholder that is or becomes a director of the Issuer shall
abstain from voting on a directors' resolution to cancel any of
the Shares.
6. TRANSFER WITHIN ESCROW
(1) The Shareholder shall not transfer any of the Shares
except in accordance with Local Policy Statement 3-07 and with
the consent of the Superintendent or the Exchange.
(2) The Escrow Agent shall not effect a transfer of the
Shares within escrow unless the Escrow Agent has received
(a) a copy of an Acknowledgement executed by the person
to whom the Shares are to be transferred, and
(b) a letter from the Superintendent or the Exchange
consenting to the transfer.
(3) Upon the death or bankruptcy of a Shareholder, the
Escrow Agent shall hold the Shares subject to this agreement for
the person that is legally entitled to become the registered
owner of the Shares.
(4) Should the Shareholder(s) Kim Morris or Lana Ko cease
to be a "principal" (as that term is defined in Local Policy
Statement 3-07) of the Issuer, die or become bankrupt, the
Shareholder or whatever other person is legally entitled to
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become the registered owner of the Shares shall, within 60 days
of the Shareholder(s) ceasing to be a principal, dying or
becoming bankrupt, either complete the transfer of Shares
pursuant to section 6 or surrender the Shares for cancellation
pursuant to section 8.
(5) Should the Shareholder 437581 B.C. Ltd.
(a) cease to be a "principal" (as that term is defined in
Local Policy Statement 3-07) of the Issuer or become bankrupt,
the Shareholder or whatever other person that is legally entitled
to become the registered owner of the Shares shall, within 60
days of the Shareholder ceasing to be a principal or becoming
bankrupt, either complete the transfer of Shares pursuant to
section 6 or surrender the Shares for cancellation pursuant to
section 8, or
(b) No longer be controlled by Peter Loretto by virtue of
the death of Peter Loretto then the benefits and obligations of
this Agreement shall pass to the estate of Peter Loretto.
7. RELEASE FROM ESCROW
(1) The Shareholder irrevocably directs the Escrow Agent
to retain the Shares until the Shares are released from escrow
pursuant to subsection (2) or surrendered for cancellation
pursuant to section 8.
(2) The Escrow Agent shall not release the Shares from
escrow unless the Escrow Agent has received a letter from the
Superintendent or the Exchange consenting to the release.
(3) The approval of the Superintendent or the Exchange to
a release from escrow of any of the Shares shall terminate this
agreement only in respect of the Shares so released.
8. SURRENDER FOR CANCELLATION
The Shareholder shall surrender the Shares for cancellation and
the Escrow Agent shall deliver the certificates representing the
Shares to the Issuer
(a) at the time of a major reorganization of the Issuer,
if required as a condition of the consent to the reorganization
by the Superintendent or the Exchange,
(b) where the Issuer's shares have been subject to a
cease trade order issued under the Act for a period of 2
consecutive years,
(c) 5 years from the date that the Exchange accepts this
Agreement for filing, or
(d) where required by sections 6 (4) (5) and (6).
9. AMENDMENT OF AGREEMENT
(1) Subject to subsection (2), this agreement may be
amended only by a written agreement among the Parties and with
the written consent of the Superintendent or the Exchange.
(2) Schedule C to this agreement shall be amended upon
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(a) a transfer of Shares pursuant to section 6,
(b) a release of Shares from escrow pursuant to section
7, or
(c) a surrender of Shares for cancellation pursuant to
section 8,
and the Escrow Agent shall note the amendment on the
Schedule C in its possession.
10. INDEMNIFICATION OF ESCROW AGENT
The Issuer and the Shareholders, jointly and severally, release,
indemnify and save harmless the Escrow Agent from all costs,
charges, claims, demands, damages, losses and expenses resulting
from the Escrow Agent's compliance in good faith with this
agreement.
11. RESIGNATION OF ESCROW AGENT
(1) If the Escrow Agent wishes to resign as escrow agent
in respect of the Shares, the Escrow Agent shall give notice to
the Issuer.
(2) If the Issuer wishes the Escrow Agent to resign as
escrow agent in respect of the Shares, the Issuer shall give
notice to the Escrow Agent.
(3) A notice referred to in subsection (1) or (2) shall
be in writing and delivered to
(a) the Issuer at its address stated above, or
(b) the Escrow Agent at its address stated above,
and the notice shall be deemed to have been received on
the date of delivery. The Issuer or the Escrow Agent may change
its address for notice by giving notice to the other party in
accordance with this subsection.
(4) A copy of a notice referred to in subsection (1) or
(2) shall concurrently be delivered to the Superintendent or the
Exchange.
(5) The resignation of the Escrow Agent shall be
effective and the Escrow Agent shall cease to be bound by this
agreement on the date that is 180 days after the date of receipt
of the notice referred to in subsection (1) or (2) or on such on
other date as the Escrow Agent and the Issuer may agree upon (the
"resignation date").
(6) The Issuer shall, before the resignation date and
with the written consent of the Superintendent or the Exchange,
appoint another escrow agent and that appointment shall be
binding on the Issuer and the Shareholders.
12. FURTHER ASSURANCES
The Parties shall execute and deliver all documents and perform
any acts necessary to carry out the intent of this agreement.
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13. TIME
Time is of the essence of this agreement.
14. GOVERNING LAWS
This agreement shall be construed in accordance with and governed
by the laws of British Columbia and the laws of Canada applicable
in British Columbia.
15. COUNTERPARTS
This agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which shall
constitute one agreement.
16. LANGUAGE
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.
17. ENUREMENT
This agreement enures to the benefit of and is 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 of reference of this agreement.
The Corporate/Common Seal of )
PACIFIC CORPORATE TRUST COMPANY )
was affixed in the presence of: )
)
/s/ illegible ) C/S
Authorized Signatory )
/s/ Yasmin Juma )
Authorized Signatory )
The Corporate/Common Seal of )
CONSOLIDATED NEWJAY RESOURCES )
LTD. was affixed in the )
presence of: )
/s/ Kim Morris ) C/S
Authorized Signatory )
/s/ Lana Ko )
Authorized Signatory )
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Signed, sealed and delivered by )
KIM MORRIS in the presence of: )
/s/ Nance McCollom )
Name )
838 Riverside Drive ) /s/ Kim Morris
Address ) KIM MORRIS
North Vancouver, B.C. )
Landman )
Occupation )
Signed, sealed and delivered by )
LANA KO in the presence of: )
/s/ Nance McCollom )
838 Riverside Drive ) /s/ Lana Ko
North Vancouver, B.C. )
Landman )
Occupation )
The Corporate/Common Seal of )
437581 B.C. LTD. was affixed )
in the presence of: )
) C/S
/s/ Peter Loretto )
Authorized Signatory )
SCHEDULE C TO ESCROW AGREEMENT
NAME OF SHAREHOLDER NUMBER OF SHARES HELD IN ESCROW
Kim Morris 10,000 Common
Lana Ko 5,000 Common
437581 B.C. Ltd. 453,750 Common
SCHEDULE D TO ESCROW AGREEMENT
UNDERTAKING REQUIRED FROM NON-REPORTING
OR CLOSELY HELD COMPANY
To: Superintendent of Brokers or Vancouver Stock Exchange
1100 - 865 Hornby Street 609 Granville Street
Vancouver, B.C. Vancouver, B.C.
V6Z 2H4 V7Y 1H1
(if the shares are not (if the shares are
listed on the Vancouver listed on the Vancouver
Stock Exchange) Stock Exchange)
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437581 B.C. LTD. (the "Company") undertakes, for the duration of
the time that the Company is the registered owner of escrowed
shares of CONSOLIDATED NEWJAY RESOURCES LTD. (the "Issuer"),
(a) to effect or permit transfer of ownership in the shares of
the Company, or
(b) to allot and issue further shares of any class of shares
of the Company only upon receipt of the written consent of the
Superintendent of Brokers, if the Issuer's shares are not listed
on the Vancouver Stock Exchange (the "Exchange"), or the
Exchange, if the Issuer's shares are listed on the Exchange.
Dated at Vancouver, B.C. on April 8, 1994.
The Corporate/Common Seal of )
437581 B.C. LTD. was affixed )
in the presence of: )
) C/S
/s/ Peter Loretto )
- - ------------------------------ )
Authorized Signatory )