PLEDGE AND ESCROW AGREEMENT
THIS
PLEDGE AND ESCROW AGREEMENT
(the
“Escrow
Agreement”)
is
made and entered into as of June 22, 2007 (the “Effective
Date”)
by and
among XXXXXXXX
URANIUM CORP.,
a
corporation organized and existing under the laws of the State of Nevada (the
“Pledgee”),
XXXXXXXX
URANIUM HOLDINGS, INC.,
a
corporation organized and existing under the laws of the State of Arizona (the
“Borrower”),
Xxxxxx XxXxxxxx (the “Stockholder”) (each of the Borrower and the Stockholder
are sometimes hereinafter referred to individually as a “Pledgor”
and
collectively as the “Pledgors”),
and
GOTTBETTER
& PARTNERS, LLP,
a New
York limited liability partnership, as escrow agent (the “Escrow
Agent”).
RECITALS:
WHEREAS,
in
order
to secure the Borrower’s obligations under a
certain
Bridge Loan and Control Share Pledge and Security Agreement, together with
the
related Bridge Loan Promissory Note, all of even date herewith (collectively
referred to as the “Loan
Documents”)
(capitalized terms not otherwise defined in this Escrow Agreement shall have
the
meanings ascribed to them in the other Loan Documents), the Stockholder has
agreed to pledge to the Pledgee 100 shares of the common stock of the Borrower
owned by such Stockholder, which constitute the Borrower Control Shares and
are
sometimes hereinafter referred to as the “Pledged
Shares”.
NOW,
THEREFORE,
in
consideration of the mutual covenants, agreements, warranties, and
representations herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
TERMS
AND CONDITIONS
1. Pledge
and Transfer of Pledged Shares.
The
Pledgors hereby grant to the Pledgee a security interest in all Pledged Shares
as security for the Borrower’s obligations under the Loan Documents.
Simultaneously with the execution of the Loan Documents, the Pledgors shall
deliver to the Escrow Agent stock certificates representing the Pledged Shares,
together with duly executed stock powers or other appropriate transfer documents
executed in blank by the Pledgors (the “Transfer
Documents”),
and
such stock certificates and Transfer Documents shall be held by the Escrow
Agent
until the full payment of all amounts due to the Pledgee under the Loan
Documents and through repayment in accordance with the terms of the Loan
Documents, or the termination or expiration of this Escrow
Agreement.
2. Rights
Relating to Pledged Shares.
2.1. The
Pledgors shall have the right to vote the Pledged Shares at all meetings of
the
Borrower’s stockholders to the same extent as if such Pledged Shares were held
by Pledgors; provided that no Event of Default (as defined herein) has occurred
and is continuing and that the Pledgors are not in default in the performance
of
any term of the Loan Documents.
2.2. Upon
the
occurrence of an Event of Default and for so long as an Event of Default is
continuing, the Pledgee shall be entitled to vote the Pledged Shares, to receive
dividends and other distributions thereon, and to enjoy all other rights and
privileges incident to the ownership of the Pledged Shares.
3. Release
of Pledged Shares from Pledge.
Upon
the payment of all amounts due to the Pledgee under the Loan Documents by
repayment in accordance with the terms of the Note, the parties hereto shall
notify the Escrow Agent to such effect in writing. Upon receipt of such written
notice, the Escrow Agent shall return to the Pledgors the Transfer Documents
and
the certificates representing the Pledged Shares, (collectively the
“Pledged
Materials”),
whereupon any and all rights of Pledgee in the Pledged Materials shall be
terminated. Notwithstanding anything to the contrary contained herein, upon
full
payment of all amounts due to the Pledgee under the Loan Documents, by repayment
in accordance with the terms of the Note, this Escrow Agreement and Pledgee’s
security interest and rights in and to the Pledged Shares shall
terminate.
4. Event
of Default.
An
“Event
of Default”
shall be deemed to have occurred under this Escrow Agreement upon an Event
of
Default under the Transaction Documents.
5. Remedies.
Upon
the occurrence of an Event of Default, the Pledgee shall provide written notice
of such Default (the “Default
Notice”)
to the
Escrow Agent, with a copy to the Pledgors. As soon as practicable after receipt
of the Default Notice, the Escrow Agent shall deliver to the Pledgee the Pledged
Materials held by the Escrow Agent hereunder, whereupon the Pledgee may exercise
all rights and remedies of a secured party with respect to such property as
may
be available under the Uniform Commercial Code as in effect in the State of
New
York.
6. Concerning
the Escrow Agent.
6.1. The
Escrow Agent undertakes to perform only such duties as are expressly set forth
herein and no implied duties or obligations shall be read into this Escrow
Agreement against the Escrow Agent.
6.2. The
Escrow Agent may act in reliance upon any writing or instrument or signature
which it, in good faith, believes to be genuine, may assume the validity and
accuracy of any statement or assertion contained in such a writing or
instrument, and may assume that any person purporting to give any writing,
notice, advice or instructions in connection with the provisions hereof has
been
duly authorized to do so. The Escrow Agent shall not be liable in any manner
for
the sufficiency or correctness as to form, manner, and execution, or validity
of
any instrument deposited in this escrow, nor as to the identity, authority,
or
right of any person executing the same; and its duties hereunder shall be
limited to the safekeeping of such certificates, monies, instruments, or other
document received by it as such escrow holder, and for the disposition of the
same in accordance with the written instruments accepted by it in the
escrow.
6.3. The
Pledgee and the Pledgors hereby agree, to defend and indemnify the Escrow Agent
and hold it harmless from any and all claims, liabilities, losses, actions,
suits, or proceedings at law or in equity, or any other expenses, fees, or
charges of any character or nature
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which
it
may incur or with which it may be threatened by reason of its acting as Escrow
Agent under this Escrow Agreement; and in connection therewith, to indemnify
the
Escrow Agent against any and all expenses, including attorneys’ fees and costs
of defending any action, suit, or proceeding or resisting any claim (and any
costs incurred by the Escrow Agent pursuant to Sections 6.4 or 6.5 hereof).
The
Escrow Agent shall be vested with a lien on all property deposited hereunder,
for indemnification of attorneys’ fees and court costs regarding any suit,
proceeding or otherwise, or any other expenses, fees, or charges of any
character or nature, which may be incurred by the Escrow Agent by reason of
disputes arising between the makers of this escrow as to the correct
interpretation of this Escrow Agreement and instructions given to the Escrow
Agent hereunder, or otherwise, with the right of the Escrow Agent, regardless
of
the instructions aforesaid, to hold said property until and unless said
additional expenses, fees, and charges shall be fully paid. Customary fees
and
costs charged by the Escrow Agent for serving hereunder shall be paid by the
Pledgors.
6.4. If
any of
the parties shall be in disagreement about the interpretation of this Escrow
Agreement, or about the rights and obligations, or the propriety of any action
contemplated by the Escrow Agent hereunder, the Escrow Agent may, at its sole
discretion deposit the Pledged Materials with the Clerk of the United States
District Court for the Southern District of New York, sitting in New York,
New
York, and, upon notifying all parties concerned of such action, all liability
on
the part of the Escrow Agent shall fully cease and terminate. The Escrow Agent
shall be indemnified by the Pledgors and the Pledgee for all costs, including
reasonable attorneys’ fees in connection with the aforesaid proceeding, and
shall be fully protected in suspending all or a part of its activities under
this Escrow Agreement until a final decision or other settlement in the
proceeding is received.
6.5. The
Escrow Agent may consult with counsel of its own choice (and the costs of such
counsel shall be paid by the Pledgors and the Pledgee) and shall have full
and
complete authorization and protection for any action taken or suffered by it
hereunder in good faith and in accordance with the opinion of such counsel.
The
Escrow Agent shall not be liable for any mistakes of fact or error of judgment,
or for any actions or omissions of any kind, unless caused by its willful
misconduct or gross negligence.
6.6. The
Escrow Agent may resign upon ten (10) days’ written notice to the parties in
this Escrow Agreement. If a successor Escrow Agent is not appointed within
this
ten (10) day period, the Escrow Agent may petition a court of competent
jurisdiction to name a successor.
6.7 Conflict
Waiver.
The
Pledgors hereby acknowledge that the Escrow Agent is counsel to the Pledgee
in
connection with the transactions contemplated and referred to herein. The
Pledgors agree that in the event of any dispute arising in connection with
this
Escrow Agreement or otherwise in connection with any transaction or agreement
contemplated and referred herein, the Escrow Agent shall be permitted to
continue to represent the Pledgee and the Pledgors will not seek to disqualify
such counsel and waives any objection the Pledgors might have with respect
to
the Escrow Agent acting as the Escrow Agent pursuant to this Escrow Agreement.
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6.8 Notices.
Unless
otherwise provided herein, all demands, notices, consents, service of process,
requests and other communications hereunder shall be in writing and shall be
delivered in person or by overnight courier service, or mailed by certified
mail, return receipt requested, addressed:
If
to
Borrower or to the Stockholder:
Xxxxxxxx
Uranium Holdings, Inc.
0000
Xxxx
Xxx Xx Xxxxxxx, Xxxxx X0000
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxxx XxXxxxxx, Chief Executive Officer
Facsimile:[insert]
with
a
copy to:
[insert
info re counsel]
If
to
Pledgee:
Xxxxxxxx
Uranium Corp.
0000
Xxxxxxx Xxx
Xxxxxx
Xxxxx, XX 00000
Attn:
Xxxxx Xxxxxx, President and Chief Executive Officer
Facsimile:
(000) 000-0000
with
a
copy to:
Gottbetter
& Partners, LLP
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxx X. Xxxxxxxxxx, Esq.
Facsimile:
(000) 000-0000
If
to the
Escrow Agent:
Gottbetter
& Partners, LLP
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxx X. Xxxxxxxxxx, Esq.
Facsimile:
(000) 000-0000
Any
such
notice shall be effective (a) when delivered, if delivered by hand delivery
or overnight courier service, or (b) five (5) days after deposit in the
United States mail, as applicable.
7. Binding
Effect.
All of
the covenants and obligations contained herein shall be binding upon and shall
inure to the benefit of the respective parties, their successors and
assigns.
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8. Governing
Law; Venue; Service of Process.
The
validity, interpretation and performance of this Escrow Agreement shall be
determined in accordance with the laws of the State of New York applicable
to
contracts made and to be performed wholly within that state except to the extent
that Federal law applies. The parties hereto agree that any disputes, claims,
disagreements, lawsuits, actions or controversies of any type or nature
whatsoever that, directly or indirectly, arise from or relate to this Escrow
Agreement, including, without limitation, claims relating to the inducement,
construction, performance or termination of this Escrow Agreement, shall be
brought in the state supreme courts located in New York County, New York or
the
United States District Court for the Southern District of New York located
in
New York, New York, and the parties hereto agree not to challenge the selection
of that venue in any such proceeding for any reason, including, without
limitation, on the grounds that such venue is an inconvenient forum. The parties
hereto specifically agree that service of process may be made, and such service
of process shall be effective if made, pursuant to Section 8
hereto.
9. Enforcement
Costs.
If any
legal action or other proceeding is brought for the enforcement of this Escrow
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any provisions of this Escrow Agreement,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorneys’ fees, court costs and all expenses even if not taxable as
court costs (including, without limitation, all such fees, costs and expenses
incident to appeals), incurred in that action or proceeding, in addition to
any
other relief to which such party or parties may be entitled.
10. Remedies
Cumulative.
No
remedy herein conferred upon any party is intended to be exclusive of any other
remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing
at
law, in equity, by statute, or otherwise. No single or partial exercise by
any
party of any right, power or remedy hereunder shall preclude any other or
further exercise thereof.
11. Counterparts.
This
Escrow Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute the
same
instrument.
12. No
Penalties.
No
provision of this Escrow Agreement is to be interpreted as a penalty upon any
party to this Escrow Agreement.
13. JURY
TRIAL.
EACH OF
THE PLEDGEE AND THE BORROWER AND THE STOCKHOLDER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES THE RIGHT WHICH IT MAY HAVE TO A TRIAL BY JURY OF
ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION BASED HEREON, OR ARISING OUT OF, UNDER
OR IN ANY WAY CONNECTED WITH THE DEALINGS BETWEEN PLEDGEE AND THE PLEDGORS,
THIS
PLEDGE AND ESCROW AGREEMENT OR ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH,
OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF ANY PARTY HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING
OR
HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE.
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IN
WITNESS WHEREOF,
the
parties hereto have duly executed this Pledge and Escrow Agreement as of the
date first above written.
|
ARBUTUS
RESOURCES, INC.
By:
/s/ Xxxxx Xxxxxx
Name: Xxxxx
Xxxxxx
Title: Chief
Executive Officer
XXXXXX
XXXXXXXX
/s/
Xxxxxx Xxxxxxxx
Number
of Pledged Shares 100
|
XXXXXXXX
URANIUM HOLDINGS, INC.
By:
/s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx
XxXxxxxx
Title: Chief
Executive Officer
GOTTBETTER
& PARTNERS, LLP
As
Escrow Agent
By:
/s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx
X. Xxxxxxxxxx, Esq.
|
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