EXHIBIT NO. 3.7
ESCROW AGREEMENT
THIS AGREEMENT is dated for reference the 15th day of August, 1994.
BETWEEN: MONTREAL TRUST COMPANY, having an office located
at ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(the "Escrow Agent")
AND: STIRRUP CREEK GOLD LTD., having an office
located at ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(the "Issuer")
AND: EACH SHAREHOLDER, as defined in this Agreement
(individually referred to as the "Shareholder" and collectively
referred to as the "Shareholders")
(the Escrow Agent, Issuer and Shareholders are herein
collectively referred to as the "Parties")
WHEREAS the Shareholders have acquired or are 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 Shareholders;
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 acknowledgment 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.83;
(c) "Exchange" means the Vancouver Stock Exchange;
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(d) "IPO" means the initial public offering of common shares of the Issuer
under a prospectus which has been filed with, and for which a receipt
has been obtained from, the Superintendent under section 42 of the Act;
(e) "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 as
Schedule "B" to this Agreement;
(f) "Shareholder" means a holder of shares of the Issuer who executes this
Agreement or an Acknowledgement;
(g) "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;
(h) "Superintendent" means the Superintendent of Brokers appointed under the
Act; and
(i) "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.
1.02 Any reference in this Agreement to a designated "Paragraph", "Section",
"Schedule" or other subdivision refers to the designated Paragraph, Section,
Schedule or subdivision of this Agreement.
2. PLACEMENT OF SHARES IN ESCROW
2.01 The Shareholders place 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
3.01 Except as provided by Paragraph 4.01(a), the Shareholders may exercise
all voting rights attached to the Shares.
4. WAIVER OF SHAREHOLDERS' RIGHTS
4.01 The Shareholders waive 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.
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5. ABSTENTION FROM VOTING AS A DIRECTOR
5.01 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
6.01 The Shareholders shall not transfer any of the Shares except in
accordance with Local Policy 3-07 and with the consent of the Superintendent
or the Exchange.
6.02 The Escrow Agent shall not effect a transfer of the Shares within
escrow unless the Escrow Agent has received:
(a) a copy of an Acknowledgment 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.
6.03 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.
7. RELEASE FROM ESCROW
7.01 The Shareholders irrevocably direct the Escrow Agent to retain the
Shares until the Shares are released from escrow pursuant to Paragraph 7.02
or surrendered for cancellation pursuant to Section 8.
7.02 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.
7.03 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
8.01 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 two consecutive years; or
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(c) 10 years from the later of the date of issue of the Shares and the date
of the receipt for the Issuer's prospectus on its IPO.
9. AMENDMENT OF AGREEMENT
9.01 Subject to Paragraph 9.02, this Agreement may be amended only by a
written agreement among the Parties and with the written consent of the
Superintendent or the Exchange.
9.02 Schedule "C" to this agreement shall be amended upon:
(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
10.01 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
11.01 If the Escrow Agent wishes to resign as escrow agent in respect of the
Shares, the Escrow Agent shall give notice to the Issuer.
11.02 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.
11.03 A notice referred to in Paragraphs 11.01 and 11.02 shall be in writing
and delivered to:
(a) the Issuer at the address specified on the first page of this agreement,
with a copy to Forth & Company, Barristers and Solicitors, ▇▇▇▇ - ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇; or
(b) the Escrow Agent at 4th Floor, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, and 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 Paragraph.
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11.04 A copy of a notice referred to in Paragraph 11.01 shall concurrently
be delivered to the Superintendent or the Exchange.
11.05 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 Paragraph 11.01 or
11.02 or on such other date as the Escrow Agent and the Issuer may agree upon
(the "Resignation Date").
11.06 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
12.01 The Parties shall execute and deliver any documents and perform any
acts necessary to carry out the intent of this Agreement.
13. TIME
13.01 Time is of the essence of this Agreement.
14. GOVERNING LAWS
14.01 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
15.01 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
16.01 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
17.01 This Agreement enures to the benefit of and is binding on the Parties
and their heirs, executors, administrators, successors and permitted assigns.
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IN WITNESS WHEREOF the Parties have executed and delivered this Agreement as
of the date of reference of this Agreement notwithstanding its actual date of
execution.
THE CORPORATE SEAL of MONTREAL
TRUST COMPANY was hereunto affixed
in the presence of:
C/S
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THE CORPORATE SEAL of STIRRUP
CREEK GOLD LTD. was hereunto affixed
in the presence of:
C/S
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SIGNED, SEALED AND DELIVERED
BY THE SHAREHOLDERS BY THEIR
EXECUTION OF SCHEDULE "C"
HERETO.
SCHEDULE "A" TO ESCROW AGREEMENT
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
To: Vancouver Stock Exchange
4th Floor, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
I acknowledge that:
(a) I have entered into an Agreement with _________________ under which
_________ shares of _____________________ (the "Shares") will be
transferred to me upon receipt of regulatory approval; and
(b) the Shares are held in escrow subject to an escrow agreement dated for
reference ___________, 19__ (the "Escrow Agreement"), a copy of which is
attached as Schedule "A" to this Acknowledgement.
In consideration of $1.00 and other good and valuable consideration (the
receipt and sufficiency of which is acknowledged) I agree, effective upon
receipt of regulatory approval of the transfer to me of the Shares, to be
bound by the Escrow Agreement in respect of the Shares as if I were an
original signatory to the Escrow Agreement.
Dated at on , 19 .
--------- --------- ----
Where the transferee is an individual:
SIGNED, SEALED AND DELIVERED by
in the presence of:
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Name
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Address
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Occupation
SCHEDULE "B" - LOCAL POLICY 3-07
SCHEDULE "C" TO ESCROW AGREEMENT
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NAME OF SHAREHOLDER NO. OF SHARES SIGNATURE OF SHAREHOLDER
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▇▇▇▇▇ ▇▇▇▇▇▇ 480,000
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▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 200,000
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ 50,000
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▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ 20,000
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