Exhibit 2.2
LOCK-UP AGREEMENT
THIS AGREEMENT made as of the 16th day of February 2000.
BETWEEN:
MED-EMERG INTERNATIONAL INC., a corporation incorporated under the laws
of the Province of Ontario (hereinafter referred to as "MEII")
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(collectively, the "SHAREHOLDERS" and individually, a
"SHAREHOLDER")
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LASER REJUVENATION CLINICS LTD., a corporation incorporated under
the laws of the Province of Alberta (hereinafter referred to
as "LRC")
- and -
OLYMPIA TRUST COMPANY, a trust company incorporated pursuant to the
laws of the Province of Alberta (hereinafter referred to as
the "ESCROW AGENT")
WHEREAS MEII, LRC and the Shareholders Coren and Woo entered
into the Business Combination Agreement pursuant to which MEII has agreed, among
other things, to make an offer to purchase all of the LRC Common Shares;
AND WHEREAS the Shareholders are at the present time the
holders of the number of LRC Common Shares as set out in Schedule "A" hereto;
AND WHEREAS the Shareholders have mutually agreed with each
other and with MEII and LRC to deposit all of their LRC Common Shares in escrow
with the Escrow Agent pursuant to the terms hereof, such that such LRC Common
Shares will be deposited under the Offer;
NOW THEREFORE in consideration of the mutual covenants and
agreements contained in this Agreement and other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged by each of the
parties), the parties hereto do hereby agree as follows:
ARTICLE 1
INTERPRETATIONS
1.1 DEFINITIONS. In this Agreement the following capitalized terms shall have
the following respective meanings ascribed thereto:
"AGREEMENT" means this agreement and all schedules attached
hereto, in each case as they may be supplemented or amended
from time to time and the expressions "HEREOF", "HEREIN",
"HERETO", "HEREUNDER", "HEREBY" and similar expressions refer
to this agreement and, unless otherwise indicated, references
to Articles and Sections are to the specified Articles and
Sections in this Agreement;
"BUSINESS COMBINATION AGREEMENT" means the agreement made as
of February 16, 2000 between MEII, LRC, Coren and Woo relating
to, among other things, the Offer;
"BUSINESS DAY" means a day that is not a Saturday, Sunday or
statutory holiday in the Province of Ontario or the Province
of Alberta;
"DEPOSITED SECURITIES" means, prior to completion of the
Offer, the LRC Common Shares deposited by the Shareholders
pursuant to Section 3.1;
"ESCROW AGREEMENT" means the agreement made as of February 16,
2000 between MEII, Coren, Woo, Nathanail and the Escrow Agent
relating to the escrow and release terms of the MEII common
shares received in exchange for the Deposited Securities;
"LRC COMMON SHARES" means common shares of LRC, as constituted
on the date hereof;
"MEII COMMON SHARES" means common shares of MEII, as
constituted on the date hereof;
"MEII SERIES C WARRANTS" means non-assignable, redeemable
Series C Warrants of MEII, such that one whole Series C
Warrants entitles the holder thereof to acquire one MEII
Common Share at an exercise price of US $3.00 per share for a
period of three (3) years from the date of issue of such
warrants;
"MEII SECURITIES" means MEII Common Shares and MEII Series C
Warrants in the proportions set out in the Business
Combination Agreement; and
"OFFER" means the offer to be made by MEII to purchase, among
other things, all of the LRC Common Shares in exchange for
MEII Securities, as contemplated by the Business Combination
Agreement.
1.2 MUTATIS MUTANDIS. The provisions of this Agreement relating to the Deposited
Securities shall apply MUTATIS MUTANDIS to any other securities into which the
Deposited Securities or any of them may be exchanged, converted, changed,
reclassified, subdivided or consolidated.
1.3 GENDER AND NUMBER. In this Agreement, unless the context otherwise requires,
words importing the singular include the plural and vice versa and words
importing gender include all genders.
1.4 INVALIDITY OF PROVISIONS. Each of the provisions of this Agreement is
distinct and severable and a declaration of invalidity or unenforceability of
any such provision by a court of competent jurisdiction shall not affect the
validity or enforceability of any other provision hereof.
1.5 ENTIRE AGREEMENT. This Agreement, the Business Combination Agreement, the
Non-Competition Agreement between MEII, LRC and Coren and the Escrow Agreement
constitute the entire agreement between the parties pertaining to the subject
matter of this Agreement.
1.6 AMENDMENT, WAIVER. Except as expressly provided in this Agreement, no
amendment of this Agreement shall be binding unless executed in writing by all
of the parties hereto. No waiver of this Agreement shall be binding unless
executed in writing and no such waiver shall constitute a waiver of any other
provision, nor shall any waiver of any provision of this Agreement constitute a
continuing waiver, unless otherwise expressly provided.
1.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein, and shall in all respects be treated as an Ontario contract.
1.8 TERMINATION. This Agreement and all obligations of the Shareholders, MEII
and LRC hereunder shall terminate on the earlier of: (a) June 16, 2000 if the
Offer has not been made; or (b) the termination of the Business Combination
Agreement. In such event, MEII, LRC and the Shareholders shall jointly provide a
notice to the Escrow Agent of the termination and the Deposited Securities shall
be returned by the Escrow Agent to the Shareholders forthwith.
ARTICLE 2
RELEASE FROM REGULATORY ESCROW
2.1 APPLICATION. The Shareholders will, forthwith after the execution of this
Agreement, make an application to the Alberta Securities Commission, the Alberta
Stock Exchange and the Canadian Venture Exchange, whichever is applicable, for
the release of all of the LRC Common Shares subject to the escrow arrangements
with such commissions and exchanges.
2.2 PURSUE DILIGENTLY. The Shareholders agree to cause such application to be
pursued diligently and expeditiously.
2.3 KEEP INFORMED. The Shareholders agree to keep MEII and its counsel fully
informed as to the status of the application for the release of the LRC Common
Shares from such escrow and to fully consult with MEII's counsel with respect
thereto.
ARTICLE 3
ESCROW
3.1 DEPOSITED SECURITIES. The Shareholders hereby agree, subject in the case of
the LRC Common Shares subject to the escrow agreement attached at Schedule "B"
receipt of regulatory approval of the release from escrow as contemplated in
Article 2, to place and deposit with the Escrow Agent the LRC Common Shares held
by the Shareholders as set forth in Schedule "A" to this Agreement and the
Shareholders hereby undertake and agree forthwith to deliver certificates
(including any replacement securities or certificates to which this Agreement
applies by virtue of Section 1.2 if and when such are issued or allotted)
representing such shares together with the required duly completed and executed
powers of attorney permitting the transfer of such shares in blank (with
signatures guaranteed by a Canadian chartered bank, Canadian trust company or a
member of a recognized Medallion guarantee program) to the Escrow Agent to
tender under the Offer, such documentation to be in a form acceptable to LRC's
transfer agent and/or depository under the Offer.
3.2 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇. Subject to regulatory approval, the Escrow Agent shall
deliver the LRC Common Shares of Shareholder Coren to LRC's transfer agent to
effect the transfer of fifty (50%) percent of the LRC Common Shares as set forth
opposite Shareholder Coren in Schedule "A" to Shareholder Nathanail pursuant to
a divorce agreement. Shareholder Nathanail agrees to bound by all of the terms
and obligations of this Agreement. Shareholder Coren hereby agrees to
complete and execute a separate power of attorney permitting the transfer to
Shareholder Nathanail.
ARTICLE 4
THE OFFER
4.1 AGREEMENT TO DEPOSIT UNDER THE OFFER. Each of the Shareholders hereby
irrevocably and unconditionally agrees to deposit all of the LRC Common Shares
owned by such Shareholder under the Offer. Each of the Shareholders hereby
irrevocably authorizes and directs the Escrow Agent to deposit all of the LRC
Common Shares deposited hereunder under the Offer and to execute and deliver for
and on behalf of such Shareholder all instruments and documents as may be
required to be executed or delivered by such Shareholder in connection with the
Offer. The Shareholders agree to provide and execute any and all documentation
as reasonably required by the Escrow Agent to allow it to perform its duties
hereunder. The Shareholders further agree not to withdraw their LRC Common
Shares deposited under the Offer except in accordance with Section 1.8 or upon
termination of the Offer.
ARTICLE 5
ESCROW TERMS AND RELEASES FROM ESCROW
5.1 TRANSFER OF DEPOSITED SECURITIES. Any Deposited Securities deposited under
this Agreement shall be transferred to MEII in accordance with the terms of the
Offer.
5.2 ESCROW AGENT. The Shareholders hereby direct the Escrow Agent to retain
their respective securities and the certificates or agreements representing the
same (including any replacement securities, agreements or certificates) and not
to do or cause anything to be done to release the same from escrow or to allow
any transfer, hypothecation or alienation thereof, except with and as directed
by a written consent, order or direction as contemplated herein. The Escrow
Agent hereby accepts the responsibilities placed on it hereby and agrees to
perform the same in accordance with the terms hereof and the written consents,
orders or directions as contemplated herein.
5.3 TRANSFER OF SECURITIES. The Escrow Agent shall at all times hold the
certificates and agreements representing the Deposited Securities held by the
Shareholders on behalf of the
Shareholders. The Shareholders hereby irrevocably appoint the Escrow Agent as
their attorney for the purpose of transferring their Deposited Securities in
accordance with the terms of this Agreement and hereby undertake to deliver
to the Escrow Agent any and all documentation, as reasonably required by the
transfer agent, to effect such a transfer.
5.4 RESTRICTIONS ON TRANSFER. The Shareholders hereby agree that the Deposited
Securities and the beneficial ownership of or any interest in them and the
certificates and agreements representing them (including any replacement
securities, agreements or certificates) shall not be sold, assigned, pledged,
mortgaged, hypothecated, alienated or otherwise in any manner dealt with except
in accordance with this Agreement or except as may be required by reason of the
death or bankruptcy of one of the Shareholders, in which case, the Escrow Agent
shall hold the said certificates or agreements, subject to this Agreement, for
whatever persons, firms or corporations shall be legally entitled to be or
become the registered owner thereof. Notwithstanding the foregoing, there shall
be no restriction or prohibition on any transfer of any Deposited Securities for
estate or tax planning or other similar purposes, provided that MEII's prior
written approval to such transfer is obtained (which approval will not be
unreasonably withheld), and further provided that the transferee agrees to be
bound by the terms and conditions of this Agreement and to execute such further
documents or instruments as MEII and the Escrow Agent considers necessary or
desirable. Subject to regulatory approval, Shareholder Coren shall be permitted
to transfer fifty (50%) of his Deposited Securities to Shareholder Nathanail,
subject to the terms of this Agreement.
5.5 RIGHTS OF SHAREHOLDERS. If during the period in which any of the said
Deposited Shares are retained in escrow pursuant hereto, any dividend is
received by the Escrow Agent in respect of the Deposited Securities, any such
dividend shall be forthwith paid or transferred to the respective Shareholders
entitled thereto. All voting rights attached to the Deposited Securities shall
at all times be exercised by the respective registered owners thereof.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES.
3.2.1.1(a) Shareholder Coren represents and warrants to MEII that he is
the registered and beneficial owner of the LRC Common Shares set forth
opposite his name in Schedule "A" annexed hereto and he owns such
shares, save and except the obligation to transfer 50% of his LRC
Common Shares to Shareholder Nathanail pursuant to a divorce agreement
and the escrow contemplated by Article 2, free and clear of all
encumbrances of any nature or kind and no person has any right to
purchase any such shares, except pursuant to the terms hereof and the
Offer.
(b) Shareholder Woo represents and warrants to MEII that he is the
registered and beneficial owner of the LRC Common Shares set forth
opposite his name in Schedule "A" annexed hereto and he owns such
shares, save and except the escrow contemplated
by Article 2, free and clear of all encumbrances of any nature or
kind and no person has any right to purchase any such shares, except
pursuant to the terms hereof and the Offer.
ARTICLE 7
GENERAL CONTRACT PROVISIONS
7.1 NOTICES. Any notice herein required or permitted to be given by any party to
the others shall be in writing and shall be delivered or sent by telex or
facsimile transmission, personal delivery or pre-paid registered mail to the
applicable address set forth below:
in the case of MEII, to the following:
Med-Emerg International Inc.
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Attention: The President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Suite 2800, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
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Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
in the case of ▇▇▇▇▇▇ ▇▇▇▇▇, to:
Suite ▇▇▇▇
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Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
in the case of LRC, to:
Laser Rejuvenation Clinics Ltd.
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Attention: The President
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with a copy to:
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Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Escrow Agent, to:
Olympia Trust Company
Corporate & Shareholder Services
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Attention: Manager, Client Services
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Any such communication so given or made shall be deemed to have been given or
made and to have been received on the day of delivery if delivered, or on the
day of faxing or sending by other means of recorded electronic communication,
provided that such day in either event is a Business Day and the communication
is so delivered, faxed or sent before 4:30 p.m. (local time at place of receipt)
on such day, with a confirmation of receipt printed from the sender's machine.
Otherwise, such communication shall be deemed to have been given and made and to
have been received on the next following Business Day. Any such communication
sent by mail shall be deemed to have been given and made and to have been
received on the fifth Business Day following the mailing thereof; provided,
however, that no such communication shall be mailed during any actual or
apprehended disruption of postal services. Any such communication given or made
in any other manner shall be deemed to have been given or made or to have been
received only upon actual receipt.
7.2 TIME OF THE ESSENCE. Time shall be of the essence of this Agreement.
7.3 FURTHER ACTS. The parties hereto agree to sign such other papers, cause
such meetings to be held, resolutions (including special resolutions)
passed, by-laws enacted, exercise their vote and influence and do and
perform and cause to be done and performed such further and other acts
and things as may be necessary to give full effect and force to this
Agreement.
7.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an
original and such counterparts together shall constitute one and the
same document.
7.5 SUCCESSORS AND ASSIGNS. This Agreement shall enure to the benefit of
and be binding upon the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns. No party
can assign this Agreement without the written consent from each of the
other parties, other than MEII to an affiliate provided that the
affiliate is the party making the Offer.
7.6 ESCROW AGENT.
a) The Escrow Agent may, at the joint and several expense of MEII and LRC,
employ or retain such counsel or other experts or advisers as it
reasonably requires for the purpose of discharging its duties hereunder
and may pay reasonable remuneration for all services so performed by
any of them, without taxation of costs of any counsel, and will not be
responsible for any misconduct or negligence on the part of any of them
who has been selected with due care by the Escrow Agent or for any
actions taken by the Escrow Agent in reliance on the advice provided.
b) If at any time, a dispute shall exist, or the Escrow Agent concludes in
its sole discretion that there is a bona fide question, confusion or
dispute, in respect to the Escrow Agent's duties under this Agreement
or the holding or delivery of the Deposited Securities, the Escrow
Agent may, in its sole discretion, deliver the Deposited Securities
then remaining to the Clerk of the Superior Court of Ontario and
interplead each of the parties to this Agreement. Upon so delivering
the Deposited Securities then remaining, and interpleading the parties,
the Escrow Agent shall be released from all obligations under this
Agreement.
c) MEII and LRC agree to pay the Escrow Agent's proper charges for the
services as Escrow Agent under this Agreement.
d) The Escrow Agent and its directors, officers, agents and employees will
at all times be indemnified and saved harmless by MEII, LRC and the
Shareholders from and against all claims, demands, losses, actions,
causes of actions, costs, charges, expenses, damages and liabilities
whatsoever arising in connection with this Agreement, including,
without limitation, those arising out of or related to actions taken or
omitted to be taken by the Escrow Agent contemplated hereby, legal fees
and disbursements on a solicitor and client basis, and costs and
expenses incurred in connection with the enforcement of this indemnity,
which the Escrow Agent may suffer or incur, whether at law or in
equity, in any way caused by or arising, directly or indirectly, in
respect of any act, deed, matter or thing whatsoever made, done,
acquiesced in or omitted in or about or in relation to the execution of
its duties as Escrow Agent and including any deed, matter or thing in
relation to the execution of its duties as Escrow Agent and including
any deed, matter or thing in relation to the registration, perfection,
release or discharge of security. The foregoing provisions of this
Section do not apply to the extent that in any circumstances there has
been a failure by the Escrow Agent or its employees or agents to act
honestly and in good faith or where the Escrow Agent or its employees
or agents have acted with gross negligence or in wilful disregard to
the Escrow Agent's obligations hereunder.
e) The Escrow Agent shall not be liable for or by reason of any statement
of fact or recitals in this Agreement or be required to verify the
same, but all statements or recitals are and shall be deemed to be made
by the parties hereto.
f) The Escrow Agent shall not incur any liability or responsibility
whatsoever or be in any way responsible for the consequence of any
breach on the part of MEII, LRC or Shareholders of any of the covenants
herein contained.
IN WITNESS WHEREOF the parties hereto have executed these
presents as of the day and year first above-written.
MED-EMERG INTERNATIONAL INC.
By: -------------------------------------------------
Name: -------------------------------------------------
Title:-------------------------------------------------
By: -------------------------------------------------
Name: -------------------------------------------------
Title:-------------------------------------------------
LASER REJUVENATION CLINICS LTD.
By: -------------------------------------------------
Name: -------------------------------------------------
Title:-------------------------------------------------
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Witness ) ▇▇▇▇▇▇ ▇▇▇▇▇
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Witness ) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
) OLYMPIA TRUST COMPANY
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)
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) By: -------------------------------------------------
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) Name: -------------------------------------------------
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) Title:-------------------------------------------------
)
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) By: -------------------------------------------------
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) Name: -------------------------------------------------
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) Title:-------------------------------------------------
SCHEDULE "A"
SHAREHOLDERS
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NAME OF SHAREHOLDER ADDRESS CLASS OF SHARES NUMBER OF SHARES
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▇▇▇▇▇▇ ▇▇▇▇▇ Suite E101, Eau Claire Common 1,967,667
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▇▇▇ ▇▇▇ Suite 401, Common 3,959,333
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