ESCROW
AGREEMENT
BETWEEN
6707157
CANADA INC.
AND
LORUS
THERAPEUTICS INC.
AND
EQUITY
TRANSFER & TRUST COMPANY
MADE
AS OF
July
10, 2007
McCarthy
Tétrault LLP
ESCROW
AGREEMENT
THIS
AGREEMENT is made as of July 10, 2007
BETWEEN
6707157
CANADA INC., a corporation incorporated under the laws of Canada (the
“Purchaser”)
- and -
LORUS
THERAPEUTICS INC., a corporation incorporated under the laws of Canada
(“New Lorus” and, together with the Purchaser, the
“Parties”)
- and -
EQUITY
TRANSFER & TRUST COMPANY, a trust company governed under the
Trust and Loan Companies Act (Canada) (“Escrow
Agent”).
WHEREAS
pursuant to the terms of the share purchase agreement (the “Purchase
Agreement”) dated as of the date hereof between the Purchaser and New
Lorus (as the same may be amended or modified from time to time in accordance
with its terms), the Parties have agreed to enter into this Agreement with
respect to a portion of the Purchase Price equal to Cdn. $600,000 (the
“Escrow Amount”) as security for and a partial, but not
exclusive, source of satisfaction of Lorus’s indemnification obligations under
the Purchase Agreement;
AND
WHEREAS the Parties desire to more specifically set forth their rights and
obligations with respect to the Escrow Amount and the release and distribution
thereof;
AND
WHEREAS the execution and delivery of this Agreement is a condition to the
obligations of the Parties to complete the transactions contemplated under
the
Purchase Agreement;
AND
WHEREAS unless otherwise defined herein or the context clearly indicates
to the
contrary, capitalized terms used in this Agreement (including the recitals
hereto) will have the meanings given to them in the Purchase
Agreement;
NOW
THEREFORE, in consideration of the covenants and agreements herein contained,
the Parties and the Escrow Agent agree as follows:
1. Establishment
of Escrow Account.
(a) Simultaneously
with or promptly following the execution and delivery of this Agreement by
each
of the Parties, New Lorus irrevocably authorizes and directs the Purchaser
to
withhold from the Purchase Price an amount equal to the Escrow Amount
and
deposit or cause to be deposited with the Escrow Agent the Escrow Amount
to be
held in escrow by the Escrow Agent, such deposit to be made by the wire transfer
of immediately available funds to an account specified by the Escrow
Agent. The Escrow Agent agrees to accept the Escrow Amount and to
establish and maintain a separate account (the “Escrow
Account”) in its capacity as escrow agent pursuant to the terms of this
Agreement.
(b) Each
of the Parties will execute and deliver to the Escrow Agent the applicable
certificate of incumbency in the form attached hereto as Schedule A and Schedule
B, respectively, for the purpose of establishing the identity of the
representatives of the each Party entitled to issue instructions or directions
to the Escrow Agent on behalf of each Party. In the event of any
change in the identity of such representatives, a new certificate of incumbency
will be executed and delivered to the Escrow Agent by the appropriate
Party. Until such time as the Escrow Agent receives a new certificate
of incumbency, the Escrow Agent will be fully protected in relying without
further inquiry on the then current certificate of incumbency on file with
the
Escrow Agent.
(c) Each
of the Parties will furnish to the Escrow Agent appropriate Canada Revenue
Agency forms for tax identification number certification.
2. Interest-Bearing
Account. Pending the release and distribution in accordance with
the terms of this Agreement and subject to Section 4(h) hereof, all collected
and available funds held by the Escrow Agent pursuant to this Agreement will
be
deposited in an interest-bearing account or as otherwise indicated in a written
direction delivered to the Escrow Agent and executed by an authorized
representative of each Party (a “Joint Direction”), any
such Joint Direction, unless received by the Escrow Agent by 9:00 a.m. (Toronto
time) on a Business Day, will be deemed received by the Escrow Agent on the
next following Business Day. All interest earned will be retained in the
Escrow
Account and reinvested from time to time in accordance with this
provision. Interest earned on the Escrow Amount will be for the
benefit of and allocated to New Lorus. The Parties hereto will not hold the
Escrow Agent liable for any investment related loss including any loss resulting
from the sale of an investment prior to its maturity date. Unless
invested, funds in the Escrow Account will earn interest at the annual rate
of
the prime rate offered by the bank at which the Escrow Deposit is being held,
less 4%.
3. Release
of Escrow Account. The Escrow Amount will be released and
distributed only as follows:
(a) Indemnification
Claims. The Purchaser will notify the Escrow Agent and New Lorus
in writing of any claim for indemnification by a Purchaser Indemnified Party
pursuant to the Purchase Agreement specifying the nature of, the specific
basis
for and the amount of such claim, the method used for the delivery of such
notice and the date on which such notice will be deemed effectively given
to the
Escrow Agent (as determined pursuant to Section 8 hereof) (a “Claim
Notice”). If the Escrow Agent does not receive a Dispute
Notice (as defined below) prior to 5:00 p.m. (Toronto time) on the date that
is
15 Business Days following the date on which a particular Claim Notice was
received (or deemed to have been received) by the Escrow Agent (as determined
pursuant to Section 8
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hereof)
(the “Dispute Deadline”), the Escrow Agent will forthwith
release from the Escrow Account and distribute or cause to be distributed
to the
Purchaser that portion of the Escrow Account as specified in the applicable
Claim Notice. If a Dispute Notice is received by the Escrow Agent
prior to the Dispute Deadline, such claim will be resolved pursuant to Section
3(b) hereof.
(b) Disputes
and Unresolved Claims. If the Escrow Agent receives (or is deemed
to have received) from New Lorus a written objection to any Claim Notice
(or
portion thereof) made in accordance with Section 3(a) hereof prior to the
Dispute Deadline (a “Dispute Notice”), then, except as
otherwise provided in Section 3(c) below, the Escrow Agent will not
distribute to the Purchaser or New Lorus any of the Escrow Account that is
the
subject of such Dispute Notice until the Escrow Agent receives
either:
(i) a
Joint Direction authorizing the release to either the Purchaser or New Lorus
of
all or a portion of the Escrow Account that is the subject of such Dispute
Notice; or
(ii) a
copy of a final, non-appealable order of a court of competent jurisdiction
(together with a legal opinion of counsel for the presenting party satisfactory
to the Escrow Agent that such order is final and non-appealable) directing
the
release to either the Purchaser or New Lorus of all or a portion of the Escrow
Account that is the subject of such Dispute Notice.
Promptly
upon the Escrow Agent’s receipt (or deemed receipt) of such Joint Direction or
such final order of a court (any such Joint Direction or final order of a
court,
a “Final Determination”) with respect to a Dispute Notice, the
Escrow Agent will forthwith release from the Escrow Account and distribute
or
cause to be distributed (x) to the Purchaser the appropriate portion of the
Escrow Account to be released to the Purchaser pursuant to such Final
Determination, and (y) if applicable, to New Lorus in accordance with
Section 3(d) hereof the appropriate portion of the Escrow Account not so
released to the Purchaser that had been held back to cover Pending Claims
(as
defined below) subject to such Final Determination. In the
event that New Lorus is the prevailing party in whole or in part in connection
with any dispute governed by this Section 3(b), the portion of the Escrow
Account that was the subject of the applicable Dispute Notice and that is
not
subject to release to the Purchaser or New Lorus as provided in the immediately
preceding sentence will remain in the Escrow Account and will be available
to
satisfy subsequent claims hereunder until released in accordance with Section
3(d) hereof. New Lorus will not object to a Claim Notice unless it in
good faith believes that all or a portion (as the case may be) of the claim
made
under such Claim Notice is not payable to the Purchaser pursuant to the Purchase
Agreement. Any Dispute Notice will describe in reasonable detail the
specific basis for any objection to the matters set forth in the Claim Notice,
the portion of such claim (if less than all) which is the subject of such
Dispute Notice, the method used for the delivery of such Dispute Notice and
the
date on which such notice will be deemed effectively given to the Escrow
Agent
(as determined pursuant to Section 8 hereof). New Lorus will send a
copy of any Dispute Notice to the Purchaser contemporaneously with the giving
of
such notice to the Escrow Agent.
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(c) Partial
Release. If any Dispute Notice includes an objection to only a
portion of a claim set forth in a Claim Notice, the Escrow Agent will forthwith
release from the Escrow Account and distribute or cause to be distributed
to the
Purchaser the amount of the Escrow Account equal to the portion of such claim
for which there is no objection; provided, however, that no such
partial release by the Escrow Agent will terminate or otherwise prejudice
the
Purchaser’s rights with respect to any amount claimed in any Claim Notice which
is in excess of any amount so released.
(d) Release
of Remaining Escrow Account. The Escrow Agent will release the
Escrow Account to New Lorus as follows:
(i) at
5:00 p.m. (Toronto time) on July 10, 2008, all of the remaining Escrow Account
in excess of any amounts with respect to which any Purchaser Indemnified
Party
(A) is entitled to (as a result of a resolved claim), but has not yet received,
disbursement from the Escrow Account pursuant to this Agreement, and
(B) has in good faith asserted a claim for but not yet obtained a Final
Determination pursuant to this Agreement (“Pending Claims”);
and
(ii) promptly
upon resolution pursuant to Section 3(b) hereof of all Pending Claims, all
of
the Escrow Account that is not payable to a Purchaser Indemnified Party in
accordance with such resolution.
(e) No
Limitation of Remedies. New Lorus hereby acknowledges and agrees
that the payment of all or any portion of the Escrow Account to the Purchaser
pursuant to this Agreement will not limit or otherwise affect any right of
indemnification that any Purchaser Indemnified Party may otherwise have pursuant
to the Purchase Agreement or otherwise and that the Escrow Account does not
constitute an exclusive remedy for Claims of any Purchaser Indemnified Party
pursuant to the Purchase Agreement.
(f) Termination. This
Agreement will terminate when all of the Escrow Account has been released
and
distributed in accordance with this Section 3. Upon such
termination, this Agreement will have no further force and effect, except
that
the provisions of Section 4 and Sections 8 through 16 below will survive
such
termination.
4. Concerning
the Escrow Agent. Notwithstanding any other provision of this
Agreement, the Escrow Agent (and each of its officers, directors, employees
and
agents) will:
(a) not
be liable for any action taken or omitted under this Agreement so long as
it
will have acted in good faith and without gross negligence or wilful
misconduct;
(b) have
no responsibility to inquire into or determine the genuineness, authenticity,
or
sufficiency of any securities, cheques, or other documents or instruments
submitted to it in connection with its duties hereunder;
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(c) be
fully protected in acting or refraining from acting or relying upon any written
notice, direction, request, waiver, consent, receipt or other document or
instrument that the Escrow Agent in good faith reasonably believes to have
been
signed and presented by the authorized party or parties;
(d) be
entitled to compensation for its services hereunder as set forth on Schedule
C
hereto, which is made a part hereof, and for reimbursement of its reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
lawyers or agents which it may find necessary to engage in performance of
its
duties hereunder, all of such expenses, fees and disbursements to be borne
equally between the Purchaser and New Lorus, and the Escrow Agent will have,
and
is hereby granted, a prior lien upon any property, cash, or assets of the
Escrow
Account, with respect to its unpaid fees and nonreimbursed out-of-pocket
expenses, superior to the interests of any other persons or
entities;
(e) be
obliged to provide an account or invoice only to the Purchaser and New Lorus
from time to time during the term of this Agreement in connection with any
services rendered by it under this Agreement on behalf of any of the parties
hereto;
(f) be
entitled and is hereby granted the right to set off and deduct any unpaid
fees
and/or nonreimbursed out-of-pocket expenses from amounts on deposit in the
Escrow Account;
(g) be,
and hereby is, jointly and severally indemnified and saved harmless by the
Parties from all losses, liabilities, costs and expenses, including reasonable
legal fees and expenses, which may be incurred by it as a result of its
acceptance of the Escrow Amount or arising from the performance of its duties
hereunder, unless such losses, liabilities, costs and expenses resulted from
the
bad faith, gross negligence or wilful misconduct of the Escrow Agent,
and such indemnification will survive its resignation or removal, or the
termination of this Agreement;
(h) in
the event that (i) any dispute will arise between the Parties with respect
to
the release or disbursement of any of the assets held hereunder or (ii) the
Escrow Agent will be uncertain as to how to proceed in a situation not
explicitly addressed by the terms of this Agreement, whether because of
conflicting demands by the Parties or otherwise, be entitled, at its option,
to
refuse to comply with any claims or demands on it with respect thereto as
long
as such dispute or uncertainty shall continue, and in so refusing, the Escrow
Agent may elect to make no delivery of the Escrow Amount and any
interest received thereon, other than to interplead all of the assets held
hereunder into a court of competent jurisdiction, and thereafter be fully
relieved from any and all liability or obligation with respect to such
interpleaded assets. The Parties further agree to pursue any redress
or recourse in connection with such a dispute without making the Escrow Agent
a
party to same;
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(i) have
only those duties as are specifically provided herein, which will be deemed
purely ministerial in nature, and will under no circumstance be deemed a
fiduciary for any of the parties to this Agreement. The Escrow Agent
will neither be responsible for, nor chargeable with, knowledge of the terms
and
conditions of any other agreement, instrument or document between the Parties
in
connection herewith, including without limitation the Purchase
Agreement. This Agreement sets forth all matters pertinent to the
escrow contemplated hereunder and no additional obligations of the Escrow
Agent
will be inferred from the terms of this Agreement or any other
agreement. In no event will the Escrow Agent be liable, directly or
indirectly, for any damages or expenses arising out of the services provided
hereunder, including for special, indirect or consequential damages, or lost
profits or loss of business, other than with respect to liability, damages
and/or expenses resulting from its own bad faith, gross negligence or wilful
misconduct;
(j) have
the right, but not the obligation, to consult with counsel of its choice
and
will not be liable for action taken or omitted to be taken by the Escrow
Agent
either in accordance with the advice of such counsel;
(k) have
the right to perform any of its duties hereunder through agents, attorneys,
custodians or nominees; and
(l) disburse
funds only to the extent that funds have been deposited with it and, for
greater
certainty, will not at any time have any duty to expend its own
funds.
5. Attachment
of Escrow Fund; Compliance with Legal Orders. In the event that
the Escrow Account will be attached, garnished or levied upon by any court
order, or the delivery thereof will be stayed or enjoined by an order of
a
court, or any order, judgment or decree will be made or entered by any court
order affecting the Escrow Amount deposited under this Agreement, the Escrow
Agent is hereby expressly authorized to obey and comply with all writs, orders
or decrees so entered or issued, which it is advised by legal counsel of
its own
choosing is binding upon it, whether with or without jurisdiction, and in
the
event that the Escrow Agent obeys or complies with any such writ, order or
decree it will not be liable to any of the Parties or to any other person,
firm
or corporation, by reason of such compliance notwithstanding such writ, order
or
decree be subsequently reversed, modified, annulled, set aside or
vacated.
6. Tax
Matters. The parties agree that the Escrow Agent does not have
any interest in the Escrow Amount, but is serving only as escrow agent
hereunder. All taxes in respect of earnings on the Escrow Amount will
be the obligation of and will be paid when due by the recipient of such
earnings, who shall indemnify and hold the Escrow Agent harmless from and
against any liability arising from such taxes, including the failure to pay
such
taxes. To the extent required by law, the Escrow Agent will perform
its withholding, remittance and reporting obligations under the Income Tax
Act (Canada), as amended, and the regulations promulgated thereunder and
any relevant provincial legislation. New Lorus represents and warrants in
favour
of the Escrow Agent that it is not a non-resident of Canada for the purposes
of
the Income Tax Act (Canada).
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7. Resignation
or Removal of Escrow Agent.
(a) The
Escrow Agent may resign as such following the giving of thirty days prior
written notice to the Purchaser and New Lorus. Similarly, the Escrow
Agent may be removed and replaced following the giving of thirty days prior
written notice to the Escrow Agent signed by the Purchaser and New
Lorus. In either event, the duties of the Escrow Agent will, subject
to its prior payment of its fees and expenses, terminate thirty days after
receipt of such notice (or as of such earlier date as may be mutually
agreeable); and the Escrow Agent will then deliver the balance of the Escrow
Account then in its possession to a successor escrow agent as will be appointed
by the Purchaser and New Lorus as evidenced by a Joint Direction filed with
the
Escrow Agent.
(b) If
the Purchaser and New Lorus have failed to appoint a successor escrow agent
prior to the expiration of thirty days following receipt of the notice of
resignation or removal, the Escrow Agent may, but will not be obligated to,
appoint a successor escrow agent or petition a court of competent jurisdiction
for the appointment of a successor escrow agent or for other appropriate
relief,
and any such resulting appointment will be binding upon all of the parties
hereto.
8. Notices. Any
demand, notice or other communication to be given in connection with this
Agreement must be given in writing and will be given by personal delivery,
by
registered mail or by electronic means of communication addressed to the
recipient as follows:
To
New Lorus:
Lorus
Therapeutics Inc.
2
Meridian Road
Toronto,
ON M9W 4Z7
Fax
No.: 416.798.2200
Attention: Director
of Finance
To
the Purchaser:
6707157
Canada Inc.
c/o
Pinnacle International Lands, Inc.
Suite
300 - 911 Homer Street
Vancouver,
BC V6B 2W6
Fax
No.: 604.688.7749
Attention: Vice
President Finance
To
the Escrow Agent:
Equity
Transfer & Trust Company
200
University Avenue, Suite 400
Toronto,
Ontario, M5H 4H1
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Fax:
No.: (416)
361-0470
Attention: Corporate
Trust Department
or
to such other street address, individual or electronic communication number
or
address as may be designated by notice given by either party to the
other. Any demand, notice or other communication given by personal
delivery will be conclusively deemed to have been given on the day of actual
delivery thereof and, if given by registered mail, on the fifth Business
Day
following the deposit thereof in the mail and, if given by electronic
communication, on the day of transmittal thereof if given during the normal
business hours of the recipient and on the Business Day during which such
normal
business hours next occur if not given during such hours on any
day. If the party giving any demand, notice or other communication
knows or ought reasonably to know of any difficulties with the postal system
that might affect the delivery of mail, any such demand, notice or other
communication may not be mailed but must be given by personal delivery or
by
electronic communication.
9.
Governing Law; Counterparts; Facsimile. This Agreement is
governed by and will be construed in accordance with the laws of the Province
of
Ontario and the laws of Canada applicable therein. This Agreement may
be executed in any number of counterparts, each of which will be deemed to
be an
original and all of which taken together will be deemed to constitute one
and
the same instrument. Delivery of an executed signature page to this
Agreement by electronic transmission will be as effective as delivery of
a
manually executed copy of this Agreement.
10. Amendment,
Modification and Waiver. This Agreement may be amended or
modified and any term of this Agreement may be waived if such amendment,
modification or waiver is in writing and signed by all parties.
11. Assignment
of Interests. No assignment of the interest of any of the parties
hereto will be binding upon the Escrow Agent unless and until written evidence
of such assignment in form satisfactory to the Escrow Agent will be filed
with
and accepted by the Escrow Agent.
12. Headings. The
division of this Agreement into Articles and Sections and the insertion of
a
table of contents and headings are for convenience of reference only and
do not
affect the construction or interpretation of this Agreement. The
terms “hereof”, “hereunder” and similar expressions refer to this Agreement and
not to any particular Article, Section or other portion
hereof. Unless something in the subject matter or context is
inconsistent therewith, references herein to Articles, Sections and Schedules
are to Articles and Sections of and Schedules to this Agreement.
13. Extended
Meanings. In this Agreement words importing the singular number
include the plural and vice versa, words importing any gender include all
genders and words importing persons include individuals, corporations, limited
and unlimited liability companies, general and limited partnerships,
associations, trusts, unincorporated organizations, joint ventures and
Governmental Authorities. The term “including” means “including
without limiting the generality of the foregoing”.
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14. Statutory
References. In this Agreement, unless something in the subject
matter or context is inconsistent therewith or unless otherwise herein provided,
a reference to any statute is to that statute as now enacted or as the same
may
from time to time be amended, re-enacted or replaced and includes any
regulations made thereunder.
15. Currency. All
references to currency herein are to lawful money of Canada.
16. Time
of the Essence. Time is of the essence of this
Agreement.
[The
remainder of this page has been intentionally left blank.]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
above written.
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6707157
CANADA INC.
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By:
|
“Michael
De Cotiis”
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Michael
De Cotiis
President
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LORUS
THERAPEUTICS INC.
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By:
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“Aiping
Young”
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Name:
Aiping Young
Title:
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By:
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“Graham
Strachan”
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Name:
Graham Strachan
Title:
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EQUITY
TRANSFER & TRUST COMPANY
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By:
|
“Derrice
Richards”
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Name:
Derrice Richards
Title:
Senior Advisor
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By:
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“Shelley
Martin”
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Name:
Shelley Martin
Title:
Corporate Trust Officer
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SCHEDULE
A
CERTIFICATE
OF INCUMBENCY
To: Equity
Transfer & Trust Company
The
undersigned, Secretary of 6707157 Canada Inc. (the “Purchaser”), a corporation
incorporated under the laws of Canada, hereby certifies that the following
named
officer is duly appointed, qualified and acting in the capacity set forth
opposite such officer’s name, and the following signature is the true and
genuine signature of such officer.
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Name
|
Title
|
Signature
|
||
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Michael
De Cotiis
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President
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Such
officer is hereby authorized to furnish the Escrow Agent with directions
on
behalf of the Purchaser relating to any matter concerning the escrow agreement
dated on or about the date hereof between the Purchaser, Lorus Therapeutics
Inc.
and Equity Transfer & Trust Company, and the monies held pursuant
thereto.
IN
WITNESS WHEREOF, the undersigned has caused this Certificate of Incumbency
to be
executed this _____ day of ___________, 2007.
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6707157
CANADA INC.
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By:
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Michael
De Cotiis
President
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SCHEDULE
B
CERTIFICATE
OF INCUMBENCY
To: Equity
Transfer & Trust Company
The
undersigned, Chief Executive Officer of Lorus Therapeutics Inc. (“New Lorus”), a
corporation incorporated under the laws of Canada, hereby certifies that
the
following named officer is duly appointed, qualified and acting in the capacity
set forth opposite such officer’s name and the following signature is the true
and genuine signature of such officer.
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Name
|
Title
|
Signature
|
||
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Aiping
Young
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Chief
Executive Officer
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Such
officer is hereby authorized to furnish the Escrow Agent with directions
on
behalf of New Lorus relating to any matter concerning the escrow agreement
dated
on or about the date hereof between 6707157 Canada Inc., New Lorus and Equity
Transfer & Trust Company, and the monies held pursuant thereto.
IN
WITNESS WHEREOF, the undersigned have caused this Certificate of Incumbency
to
be executed by their respective officers duly authorized this _____ day of
_________, 2007.
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LORUS
THERAPEUTICS INC.
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By:
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Name:
Title:
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SCHEDULE
C
SCHEDULE
OF ESCROW FEES
[attached]
Lorus
Therapeutics Inc. and 6707157 Canada Inc.
Fee
Schedule
For
Acting as Escrow Agent for Cash
|
Acceptance
Fee for all services relating to the review of the draft
escrow
agreement and the giving of comments thereon to legal counsel,
attendance
at closing and the receipt of escrowed property, deposit of
the escrowed
property in safekeeping and the set up of the administration
of the
agreement. (Up to 10 hours, thereafter at
$250/hour).
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$
3,000.00*
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Annual
Retainer Fee as escrow agent, for each year or part thereof,
including the holding of the escrowed funds and one investment
transaction
per month.
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6,500.00*
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Each
Additional investment purchase/sale
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65.00
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Releases:
review of each notice, pursuant to the agreement,
confirming
satisfaction of the conditions for the release of
funds
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100.00
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| Disbursements, subject to a minimum of $300 |
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| each cheque |
5.00
|
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each
EFT, wire transfer or certified cheque
|
100.00
|
| Tax reporting, each supplementary form ($340.00 minimum) |
5.00
|
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Tax
reporting, each summary
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150.00
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Professional
Services: Fees for additional services, not previously described,
will be charged on the basis of time, effort and responsibility
involved.
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Disbursements:
Disbursements
are in addition to our fees. These may include postage, long distance
telephone,
telecopier, storage, couriers, stationery and photocopies.
Terms:
*Payment
is due at Closing. The fees provided are effective for 2 years, after
which
time, we reserve the right to increase the fees based on our assessment
of the
work and responsibility involved in the administration of the
file.
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Interest
on unpaid bills:
2.0%
per month will be charged on any unpaid balances after 30 days. If your
account
is 60 days in arrears, we reserve the right to withdraw
services.
Accepted
this_____day of____________, 2007
LORUS
THERAPEUTICS INC.
6707157 CANADA INC.
Authorized Signatory
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