EXHIBIT 2.5
THIS AGREEMENT made this ______ day of _________________,
1999.
AMONG:
MED-EMERG INTERNATIONAL INC., a corporation incorporated
pursuant to the laws of the Province of Ontario
(herein called the "Issuer")
- and -
MONTREAL TRUST COMPANY OF CANADA, a trust company authorized
to carry on business in each province of Canada
(herein called the "Escrow Agent")
- and -
THOSE PERSONS LISTED IN SCHEDULE "A" HERETO
(herein called the "Securityholders")
WHEREAS the Securityholders wish to deposit in escrow certain common
shares (the "Escrowed Shares") of the Issuer owned by them and have for that
purpose delivered to the Escrow Agent the security certificate(s) described
in SCHEDULE "A", the receipt of which certificates the Escrow Agent hereby
acknowledges;
AND WHEREAS the Escrow Agent has agreed to undertake and perform its
duties according to the terms and conditions hereof;
NOW THEREFORE this agreement witnesses that, in consideration of the sum
of one dollar ($1.00) 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 Escrow Agent, and
the Issuer and the Escrow Agent covenant and agree each with the other and
with the Securityholders jointly and severally, as follows:
1. In this Escrow Agreement, or in any amendment or agreement supplemental
hereto, unless the context otherwise requires, the term "Direction" means
a direction of the Issuer in the form attached as SCHEDULE "B" hereto.
2. Each of the Securityholders hereby places and deposits in escrow with the
Escrow Agent those of the Securityholder's securities of the Issuer
described in SCHEDULE "A" and the Escrow Agent hereby acknowledges receipt
of those certificates. Each of the Securityholders agrees to deposit in
escrow any replacement securities or certificates which may at any time be
issued for any escrowed securities.
3. Each of the Securityholders shall be entitled to a letter or receipt from
the Escrow Agent stating the number of securities represented by
certificates held for the Securityholder by the Escrow Agent subject to
the terms of this agreement. It is expressly understood and agreed by the
parties to this Escrow Agreement that such letter or receipt shall not be
assignable.
4. Except as provided in Sections 5 and 6, the securities deposited in escrow
as described shall remain in escrow and shall not be sold, assigned,
hypothecated, pledged, charged, alienated, released from escrow,
transferred within escrow or otherwise in any manner dealt with, without
the prior written consent of the Issuer to the Escrow Agent. Any release
may be either total or partial; a partial release shall release from
escrow only the securities specified in it, and this agreement shall
continue in force with respect to those securities as may from time to
time remain in escrow until all the escrowed securities have been either
released pursuant to Sections 5 and 6, or on the written consent of the
Issuer. The foregoing shall not prevent any transfer or assignment which
may be required by reason of the death or bankruptcy of any
Securityholder, in which case the Escrow Agent shall hold the said
securities and certificates in escrow, subject to the provisions of this
agreement, for whatever person or company shall be legally entitled to be
or become the registered owner thereof.
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5. Subject to Section 6, the Escrowed Shares deposited with the Escrow Agent
pursuant to this agreement shall be automatically released as to one-third
(1/3) of the securities of each Securityholder subject to the escrow
requirements under this agreement on each of February 9, 2000, August 9,
2000 and February 9, 2001.
6. Notwithstanding the provisions of Section 5, the Issuer has agreed with
the Securityholders that, if at any time after the date of this agreement,
the 20 day weighted average share price of the Issuer's common shares
exceeds US $3.50, the Issuer shall release immediately 20% of the Escrowed
Shares to the Securityholders. In such circumstance, the Issuer shall
provide the Direction to the Escrow Agent, and the Escrow Agent shall
immediately release to the Securityholders 20% of the number of Escrowed
Shares of each Securityholder originally held in escrow such that, if the
20% release occurs:
a. prior the date which is February 9, 1999, 13-1/3% of the Escrowed
Shares will be released on February 9, 2000;
b. after the date which is February 9, 2000 and prior to August 9, 2000,
13-1/3% of the Escrowed Shares will be released on August 9, 2000; and
c. after the date which is August 9, 2000 and prior to the date which is
February 9, 2001, 13-1/3% of the Escrowed Shares will be released on
February 9, 2001.
7. If during the period in which any of the Escrowed Shares are retained in
escrow pursuant hereto any cash dividend is received by the Issuer in
respect of the Escrowed Shares, any such cash dividend shall be forthwith
paid or transferred to the respective Securityholders entitled thereto. If
during the period in which any of the Escrowed Shares are retained in
escrow pursuant hereto, any share dividend or other distribution of
securities is received by the Escrow Agent in respect of the Escrowed
Shares, any certificates representing such share dividend or securities
will be held by the Escrow Agent on and subject to the terms of this
agreement. If during the period in which any of the Escrowed Shares are
retained in escrow pursuant hereto, any share dividend or other
distribution of securities is received by a Securityholder in respect of
the Escrowed Shares, any certificates representing such share dividend or
securities must be forthwith deposited by the securityholders with the
Escrow Agent to be held by the Escrow Agent on and subject to the terms of
this agreement.
8. Any Securityholder may hypothecate, pledge or charge any or all securities
owned by it and deposited in escrow hereunder to a financial institution,
provided that prior to such hypothecation, pledge or charge, such
financial institution enters into an agreement with the particular
Securityholder and the Issuer whereby it agrees to be bound by the
provisions of this agreement and acknowledges that the securities so
hypothecated, pledged or charged may not be sold, transferred or otherwise
dealt with except in accordance with the provisions of this agreement, and
provided that the Securityholder provides to the Escrow Agent any and all
documents that the Escrow Agent deems necessary or required in order to
effect to such hypothecation, pledge or charge.
9. All voting rights attached to the escrowed securities shall at all times
be exercised by the respective registered owners thereof and the Issuer
and the Escrow Agent shall take all necessary steps from time to time to
permit the registered owners to exercise such rights.
10. The Escrow Agent accepts the responsibilities placed on the Escrow Agent
by this agreement and agrees to perform them in accordance with the terms
hereof and with the applicable consent of the Issuer or the Direction of
the parties hereto.
11. The Issuer hereby acknowledges the terms and conditions of this agreement
and agrees to take all reasonable steps to facilitate the Issuer's
performance of this agreement and to pay the Escrow Agent's proper charges
for the Escrow Agent's services as trustee of this escrow.
12. The Securityholders and the Issuer hereby jointly and severally agree to
and do hereby release and indemnify and save harmless the Escrow Agent and
its employees, officers, directors and
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agents from and against all claims, suits, demands, costs, damages and
expenses which may be occasioned by any of them by reason of the Escrow
Agent's compliance in good faith with the terms hereof.
13. If the Escrow Agent should wish to retire, the Escrow Agent shall provide
ninety (90) days' notice to the Issuer, and the Issuer may by writing
appoint another trustee in the Escrow Agent's place and such appointment
shall be binding on the Securityholders, and the new trustee shall assume
and be bound by the obligations of the Escrow Agent hereunder.
14. This agreement may be amended upon agreement of the Issuer, the Escrow
Agent and the Securityholders.
15. This agreement may be executed in several counterparts in the same form
and the counterparts as so executed shall together constitute one original
agreement, and the parts, if more than one, shall be read together and
shall be construed as if all the signing parties hereto had executed one
copy of this agreement.
16. This agreement constitutes the entire understanding between the parties to
this agreement with respect to the subject matter of this agreement and
supersedes 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 in this
agreement.
17. This agreement shall be interpreted in accordance with and governed in all
respects by the laws of the Province of Ontario.
18. 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 of this agreement
shall remain in full force and effect and be binding on the parties to
this agreement as though the illegal or unenforceable provision or
provisions or part or parts of the agreement had never been included in
this agreement.
19. In this agreement, the expression "the Securityholders" shall include the
Securityholders' respective permitted transferees within escrow and any
person to whom the interest of a Securityholder may be transmitted by
operation of law as provided herein, and the expression "the Escrow Agent"
shall include a new trustee appointed hereunder, and wherever the singular
or masculine is used, the same shall be construed to include the plural or
feminine or neuter where the context so requires.
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20. This agreement shall enure to the benefit of and be binding on the parties
to this agreement and each of their heirs, executors, administrators,
successors and permitted assigns.
IN WITNESS WHEREOF the Issuer, the Escrow Agent and the Securityholders
have executed this Escrow Agreement as of the date and year first above
written.
MED-EMERG INTERNATIONAL INC.
Per: __________________________________
Per: __________________________________
MONTREAL TRUST COMPANY OF CANADA
Per: __________________________________
Per: __________________________________
SIGNED, SEALED AND DELIVERED by the respective Securityholder set
out below.
977675 ONTARIO INC.
Per: __________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
PAGE ▇▇▇▇▇▇▇ & ASSOCIATES LTD.
Per: __________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SCHEDULE "A" to the Escrow Agreement dated the _____ day of
________________, 1999 and made among Med-Emerg International Inc.,
Montreal Trust Company of Canada and the parties listed on the execution
page to the Escrow Agreement (therein called the "Securityholders")
----------------------------------------------------------------------------------
NAME OF SECURITYHOLDERS TYPE OF SECURITIES NUMBER OF SECURITIES
----------------------------- ------------------ --------------------
977675 ONTARIO INC. Common Shares -
(▇▇▇▇▇▇ ▇▇▇▇▇▇)
PAGE ▇▇▇▇▇▇▇ & ASSOCIATES LTD. Common Shares -
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇)
SCHEDULE "B" to the Escrow Agreement dated the _____ day of
________________, 1999 and made among Med-Emerg International Inc.,
Montreal Trust Company of Canada and the parties listed on the execution
page to the Escrow Agreement (therein called the "Securityholders")
DIRECTION
TO: Montreal Trust Company of Canada
Reference is made to the escrow agreement dated -, 1999 (the "Escrow
Agreement") among Med-Emerg International Inc., Montreal Trust Company of
Canada, 977675 Ontario Inc. and Page ▇▇▇▇▇▇▇ & Associates Ltd. Capitalized
terms which are not otherwise defined herein shall have the meaning ascribed
to such terms in the Escrow Agreement.
Montreal Trust Company of Canada is hereby authorized and directed to
proceed with an immediate release of 20% of the original number of Escrowed
Shares of each Securityholder held in escrow under the Escrow Agreement.
DATED this ___________ day of ___________________, 1999.
MED-EMERG INTERNATIONAL INC.
Per: __________________________________