ESCROW AGREEMENT
Schedule C to Shareholders Agreement
Between:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
of the City of Vancouver,
Province of British Columbia,
Canada
(hereinafter referred to as "▇▇▇▇▇▇▇")
OF THE FIRST PART,
And
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
of the City of Toronto,
Province of Ontario,
Canada
(hereinafter referred to as "Austin")
OF THE SECOND PART,
And
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
of the City of Toronto, Province of Ontario,
Canada
(hereinafter referred to as "▇▇▇▇▇▇▇▇▇")
OF THE THIRD PART,
And
▇▇▇▇▇ 14. ▇▇▇▇▇▇▇▇
of the City of Toronto, Province of Ontario,
Canada
(hereinafter referred to as "▇▇▇▇▇▇▇▇")
OF THE FOURTH PART,
And
MENTOR ON CALL, INC.
A corporation existing under the laws of Nevada, U.S.A.
(hereinafter referred to as "Mentor")
OF THE FIFTH PART,
And
MENTOR OF CALLHOLDINGS, INC.
An I. .B.C. under the laws of Barbados, W.I.
(hereinafter referred to as "Holdings or Corporation")
OF THE SIXTH PART.
And
___________TRUST CORPORATION
A corporation incorporated pursuant to the laws of Canada
(hereinafter referred to as "Depositary")
OF THE SEVENTH PART
RECITALS
WHEREAS THE AUTHORIZED CAPITAL OF MENTOR CONSISTS OF 100,000,000 COMMON
SHARES OF which 4,500,000 free trading common shares are issued and outstanding;
AND WHEREAS HOLDINGS WILL BE THE REGISTERED OWNER OF 9,350,000
RESTRICTED SHARES;
AND WHEREAS RODGERS, AUSTIN, ▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ (OR NOMINEES) own
in equal amounts as the registered and beneficial owners all of the issued and
outstanding and authorized shares of Holdings;
AND WHEREAS RODGERS, AUSTIN, PRITCHARD, FIGUEROA, MENTOR AND HOLDINGS
WISH TO deposit these shares in escrow with a suitable Trust Company in Canada
who will attorn to the provisions of this Agreement which is attached as
Schedule C to a Shareholders Agreement amongst the same six parts outlined
herein, in respect of other matters set forth in this Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT IN CONSIDERATION OF THE
respective covenants and agreements of the parties contained herein and for
other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged by each of the parties) it is hereby agreed as follows:
1. DEFINIT1ONS
In this Agreement, unless there is something in the context
inconsistent therewith, terms used herein and not defined herein shall have the
meanings respectively ascribed to them in the Unanimous Shareholder Agreement.
2. SHARES TO BE DEPOSITED WITH THE DEPOSITARY
All share certificates representing Shares shall be delivered to the
Depositary and shall be held by the Depositary to be dealt with in accordance
with the terms hereof and in accordance with the relevant provisions of the
Unanimous Shareholder Agreement.
3. ISSUANCE OF DEPOSIT RECEIPTS
The Depositary will issue in the name of and deliver to each
Shareholder who deposits with the Depositary a certificate or certificates
representing Shares a receipt (the "Deposit Receipt") in a valid and legally
binding form.
4. TRANSFER OF SHARES
Deposit Receipts shall not be transferrable. In the event of a transfer
of Shares that has been made in accordance with the provisions of the Unanimous
Shareholder Agreement, upon delivery to the Depositary of:
(a) the relevant Deposit Receipt; and
(b) written evidence satisfactory to the Depositary that the transfer
of Shares has been made in accordance with the provisions of the Unanimous
Shareholder Agreement,
the certificate representing such Shares shall be returned by the Depositary to
the relevant Company for cancellation and the relevant Company shall cancel such
Share certificate and issue in the name of the transferee a new Share
certificate evidencing the transferred Shares, which Share certificate shall be
delivered by such Company to the Depositary to be dealt with in accordance with
the terms of this Agreement and the relevant provisions of the Unanimous
Shareholder Agreement. Upon receipt by the Depositary of such new Share
certificate, it shall issue in the name of and deliver to such transferee a
Deposit Receipt evidencing such transferee's rights to the deposited Share
certificate, subject to the terms of this Agreement and the Unanimous
Shareholder Agreement.
5. REGISTER OF HOLDERS OF DEPOSIT RECEIPTS
The Depositary shall at all times treat and consider the registered
holder of a Deposit Receipt
on the books of the Depositary as the holder thereof for all purposes. The
Depositary shall keep at its principal office in the City of Toronto a register
of the names and addresses of the holders of all Deposit Receipts issued.
The Depositary shall at all times ensure that the aggregate number of
Shares of any Company represented by Share certificates held by it hereunder is
equivalent to the aggregate number of Shares of such Company represented by the
outstanding Deposit Receipts with respect to Shares of such Company issued by
the Depositary.
6. RIGHT TO RECEIVE SHARES
On the termination of the Unanimous Shareholder Agreement, each Deposit
Receipt shall entitle the registered holder thereof, or his executors,
administrators, legal personal representatives or successors, or his or their
attorney duly appointed by an instrument in writing in form and execution
satisfactory to the Depositary, as the case maybe, to certificates representing
the number of Shares represented thereby on surrender of such Deposit Receipt,
duly endorsed with signature guaranteed by a Canadian chartered bank, at the
principal office of the Depositary in the City of Toronto.
7. RELEASE OF SHARES AND PROCEEDS OF SALE
Each party agrees that, except as otherwise expressly provided herein,
the Shares represented by certificates deposited with the Depositary in
accordance with the terms hereof shall not be released by the Depositary except
on termination of the Unanimous Shareholder Agreement and that each such party
will not request nor be entitled to the release of certificates except on such
basis.
However, by Unanimous Instruction of All Shareholders, in writing, (the
"Instructions")with signatures guaranteed by a Canadian chartered bank, the
Preference Rights after conversion to Common Shares of Mentor may be sold, in
amounts and at prices, as directed in writing by said Instructions with proceeds
of sale deposited in the account of Holdings, with banking co-ordinates as
directed by the Instructions.
8. ACCEPTANCE OF TRUSTS
The Depositary hereby accepts the trust imposed upon it hereunder and
acknowledges, declares and confirms that:
(a) it will hold the certificates representing Shares subject to the
provisions hereof;
(b) it does not and will not have any beneficial interest in the Shares
in respect of which certificates have been delivered to it pursuant to this
Agreement; and
(c) beneficial ownership of the Shares of each Company and all other
rights of
ownership with respect thereto shall remain with the Shareholders of such
Company.
9. COMPENSATION
The Depositary shall be reimbursed by the Corporation for its
reasonable disbursements incurred in carrying out its obligations under this
Agreement and, in addition, shall be paid a fee by the Corporation in such
amount as may be agreed upon from time to time by the Depositary and the
Corporation. The Depositary shall be entitled from time to time to consult legal
counsel in connection with its obligations hereunder and the Depositary shall be
entitled to be reimbursed by the Corporation for the reasonable disbursements
incurred and reasonable fees charged by such counsel.
10. INDEMNITY
Except as hereinafter provided, the Corporation agrees to indemnify and
save the Depositary harmless from and against any and all claims, demands,
actions, causes of action and liabilities that may be made or commenced against
or incurred by the Depositary and that arise directly from the performance of
its obligations hereunder (except such as arise from negligence or a breach of
any duty of the Depositary). The indemnity provided in this section shall not
apply unless:
(a) as soon as is practicable after the Depositary has received notice
of any such claim, demand, action, cause of action or liability, the Depositary
gives notice thereof to each of the persons who is registered at that time as a
holder of Deposit Receipts of the register maintained by the Depositary
hereunder;
(b) the Depositary authorizes the Corporation to settle, compromise or
defend such claim, demand, action, cause of action or liability as the
Corporation, in its sole discretion, considers advisable without any
interference or prejudicial action by the Depositary; and
(c) in connection with any such settlement, compromise or defense, the
Depositary cooperates fully with the Corporation.
The Depositary shall be deemed to have received notice of a demand,
claim or proceeding when the Manager, Corporate Trust Department, of the
Depositary is notified thereof.
11. DEPOSITARY' S RESIGNATION OR REMOVAL
The Depositary may resign and discharge itself from the obligations
assumed by it hereunder by giving three months' notice in writing thereof to
each of the persons who is registered at that time as a holder of Deposit
Receipts on the register maintained by the Depositary hereunder. Mentor or
Holdings may remove the Depositary from its position as Depositary hereunder by
giving to the Depositary notice in writing to that effect signed by each of the
persons who is registered at that time as a holder of Deposit Receipt on the
register maintained by the Depositary hereunder, such
removal to be effective upon the latest of
(A) THE DAY THE NOTICE IS GIVEN;
(b) if so specified in the notice, the date of the appointment of a new
depositary hereunder; and
(c) any other date specified in the notice.
The Depositary hereby agrees to execute all such transfers and other
documents and to do all such other acts and things as may reasonably be
requested by the Corporation in order that a new depositary may be substituted
hereunder for the Depositary. Upon a new depositary acceptable to the
Corporation executing and delivering a counterpart of this Agreement, or
otherwise agreeing to be bound by the provisions hereof; such new depositary
shall be deemed to be the Depositary for all purposes of this Agreement.
12. PROTECTION OF DEPOSITARY
By way of supplement to the provisions of law or of any statute for the
time being in effect, it is agreed that:
(a) the Depositary shall not incur any liability nor responsibility by
reason of any error of law or mistake of fact or by reason of any matter or
thing done or omitted to be done under or in relation to this Agreement unless
such error, mistake, matter or thing constitutes or arises from negligence, lack
of good faith or wilful or wrongful neglect or default on the part of the
Depositary; and
(b) the Depositary may act in good faith on the opinion or advice of
any lawyer, broker or other expert and shall not be responsible for any loss
occasioned by so acting, and shall incur no liability or responsibility for
deciding in good faith not to act upon any such opinion or advice.
13. CHANGE OF DEPOSITED SECURITIIE S
The parties hereto agree that the provisions of this Agreement relating
to the deposited certificates representing Shares shall apply, mutatis mutandis,
to any certificates or other instruments representing shares or securities into
which such Shares may be converted, changed, reclassified, redivided,
redesignated, subdivided or consolidated, or representing any shares or other
securities that are received by the registered holder of such Shares as a stock
dividend or distribution payable in shares or other securities or representing
any shares or other securities of any successor or continuing Company or
corporation that may be received by the registered holder of such Shares on a
reorganization, amalgamation, consolidation or merger, statutory or otherwise.
14. AMENDMENTS
This Agreement may not be amended except with the approval of all of
the parties hereto from time to time, signified in writing.
15. COUNTERPARTS AND FACSIMILE
This Agreement may be executed in several counterparts, each of which
when executed by any of the parties shall be deemed to be an original, and such
counterparts shall together constitute one and the same instrument.
16. GOVERNING LAW
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE PROVINCE OF ONTARIO, AND EACH PARTY HEREBY IRREVOCABLY ATTORNS TO
THE JURISDICTION OF THE COURTS OF SUCH Province.
17. HEADINGS, SEVERABILITY, SUCCESSORS, NOTICE, NUMBER AND GENDER
AS DEFINED IN THE SHAREHOLDERS AGREEMENT TO WHICH THIS ESCROW AGREEMENT
IS ATTACHED AS Schedule C.
IN WITNESS WHEREOF THIS AGREEMENT HAS BEEN EXECUTED BY THE PARTIES ON THE 18TH
DAY OF JANUARY, 2000.
SIGNED, SEALED AND DELIVERED
BY:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 14. ▇▇▇▇▇▇▇▇
THE CORPORATE SEAL OF MENTOR INTERNET, INC.
was attached and signed by a duly authorized officer of same:
C/S
THE CORPORATE SEAL OF MENTOR HOLDINGS, INC.
was attached and signed by a duly authorized officer of same:
C/S
THE CORPORATE SEAL OF
TRUST COMPANY WAS ATTACHED
and duly signed by a duly authorized officer of same:
C/S
