ESCROW AGREEMENT
THIS made as of the 27 day of February, 2014.
AMONG:
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BLOX,
INC., a corporation incorporated under the laws of the State of
Nevada
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AND:
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XXXXXX
XXXXXXXX, an individual having an address of 600 – 000 Xxxxxxx
Xxxxxx, XX X0X 0X0 |
AND:
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XXXXX XXXXXX LLP, of 900 –
000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, XX X0X 0X0 |
WHEREAS:
A. The Company has
entered into a Consulting Agreement (the “Consulting Agreement”) with
the Consultant, whereby the Consultant has agreed to provide certain services
in consideration for, among other things, the issuance of:
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(a) |
9,233,860 shares of common stock in the capital of the Company (the “Initial
Share”) and warrants (the “Warrants”) to purchase up to 8,000,000 shares
(the “Warrant Shares”), and |
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(b) |
up to 10% of the total number of shares of common stock in the capital
of the Company (the “Quivira Shares”) and securities of the Company (the
“Quivira Securities”) that are otherwise exercisable or convertible into
shares (the “Quivira Securities Shares”) that are issued in
connection with the acquisition by the Company of Quivira Gold Ltd. from the
shareholder thereof (the “Quivira Transaction”) on a fully-diluted basis
which issuance will occur on the closing date of the Quivira Transaction (the “Quivira
Closing Date”); |
B.
Pursuant to the terms of the Consulting Agreement, the Company and the
Consultant have agreed that the Initial Shares, the Warrant Shares, and any
Quivira Shares or Quivira Securities Shares issuable to the Consultant (the “Escrowed
Securities”) are to be held in escrow pursuant to the terms of this
Agreement;
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C.
The Company and the Consultant wish to appoint the Escrow Agent to
accept, hold and deliver the Escrowed Securities pursuant to the terms of this
Agreement; and
D.
The Company and the Consultant have agreed that the Escrowed Securities
will be held by the Escrow Agent and released only in accordance with the terms
of this Agreement.
THEREFORE, in consideration of the mutual
covenants and agreements herein contained and other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties covenant and agree as follows:
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(a) |
the headings have been inserted for convenience
of reference only and in no way define, limit, or enlarge the scope or meaning
of the provisions of this Agreement; |
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(b) |
all references to any party, whether a party to
this Agreement or not, will be read with such changes in number and gender as
the context or reference requires; and |
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(c) |
when the context hereof makes it possible, the
word “person” includes in its meaning any firm and any body corporate or
politic. |
| 2.1 |
The Company and the Consultant will undertake
all acts to deliver the Escrowed Securities and the requisite number of stock
power of attorneys to reflect the number of share certificates deposited,
signature guaranteed as required by the transfer agent of the Company
(the “PAs”) to the Escrow Agent. The Escrow Agent will hold the
Escrowed Securities and the PAs in escrow subject to
the terms and conditions of this Agreement. |
| 2.2 |
The Consultant and the Company agree that any
Warrant Shares issued upon the exercise of the Warrants that have not been
released from escrow will be delivered to the Escrow Agent. |
| 2.3 |
The Consultant and the Company agree that any
Quivira Securities Shares issued upon the exercise of the Quivira Securities
that have not been released from escrow will be delivered to the Escrow Agent. |
| 3.1 |
The Company and the Consultant hereby direct the
Escrow Agent to retain the Escrowed Securities and the
PAs and not to cause anything to be done to release the same from escrow except
in accordance with this Agreement. The Escrow Agent accepts its
responsibilities hereunder and agrees to perform them in accordance with the
terms hereof. |
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| 3.2 |
Unless prohibited by an order of a court of
competent jurisdiction and subject to Section 3.4, the Escrow Agent will release from
escrow and deliver to the Consultant the number of Initial Shares and Warrant
Shares as equal to: |
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(a) |
25% of the Initial Shares and Warrant Shares, if
any, on the Start Date (as defined in the Consulting Agreement); |
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(b) |
25% of the Initial Shares and Warrant Shares, if
any, on the date that is six months from the Start Date; |
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(c) |
25% of the Initial Shares and Warrant Shares, if
any, on the date that is 12 months from the Start Date; and |
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(d) |
25% of the Initial Shares and Warrant Shares, if
any, on the date that is 18 months from the Start Date. |
| 3.3 |
Unless prohibited by an order of a court of
competent jurisdiction and subject to Section 3.4, the Escrow Agent will release from
escrow and deliver to the Consultant the number of Quivira Shares and Quivira Securities
Shares as equal to: |
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(a) |
25% of the Quivira Shares and Quivira Securities
Shares, if any, on the Quivira Closing Date; |
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(b) |
25% of the Quivira Shares and Quivira Securities
Shares, if any, on the date that is six months from the Quivira Closing Date; |
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(c) |
25% of the Quivira Shares and Quivira Securities
Shares, if any, on the date that is 12 months from the Quivira Closing Date;
and |
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(d) |
25% of the Quivira Shares and Quivira Securities
Shares, if any, on the date that is 18 months from the Quivira Closing Date. |
| 3.4 |
In the event that the Company informs the Escrow
Agent that the Consultant does not hold the position of Chief Executive Officer
of the Company, or another executive officer position or director with the
Company or an affiliate of the Company, then: |
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(a) |
all Escrowed Securities and the PAs not released
from escrow shall be delivered by the Escrow Agent to the Company and upon
receipt thereof, the Company shall promptly return such shares to treasury for
cancellation without consideration in accordance with NRS 78.211; and |
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(b) |
all Warrants or Quivira Securities shall be
terminated and the Consultant may not exercise the Warrants or Quivira
Securities. |
| 3.5 |
The Escrow Agent will release any remaining PAs
to the Consultant when all of the Escrowed Securities have been released. |
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| 4.1 |
In exercising the rights, duties and obligations
prescribed or confirmed by this Agreement, the Escrow Agent will act honestly
and in good faith and will exercise that degree of care, diligence and skill
that a reasonably prudent person would exercise in comparable circumstances. |
| 4.2 |
The Company and the Consultant agree from time
to time and at all times hereafter well and truly to save, defend and keep
harmless and fully indemnify the Escrow Agent, its successors and assigns from
and against all loss, costs, charges, suits, demands, claims, damages and
expenses which the Escrow Agent, its successors or assigns may at any time or
times hereafter bear, sustain, suffer or be put unto for or by reason or on
account of its acting pursuant to this Agreement or anything in any manner
relating thereto or by reason of the Escrow Agent’s compliance in good faith
with the terms hereof. |
| 4.3 |
In case proceedings should hereafter be taken in
any court respecting the Escrowed Securities, the Escrow Agent will not be
obliged to defend any such action or submit its rights to the court until it
has been indemnified by other good and sufficient security in addition to the
indemnity given in section 4.2 against its costs of such proceedings. |
| 4.4 |
The Escrow Agent will have no responsibility in
respect of loss of the Escrowed Securities except the duty to exercise such
care in the safekeeping thereof as it would exercise if the Escrowed Securities
belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel
but will not be responsible for acting or failing to act on the advice of
counsel. |
| 4.5 |
The Escrow Agent will not be bound in any way by
any contract between the other parties hereto whether or not it has notice
thereof or of its terms and conditions and the only duty, liability and
responsibility of the Escrow Agent will be to hold the Escrowed Securities and
the PAs as herein directed and to pay and deliver the same to such persons and
other such conditions as are herein set forth. The Escrow Agent will not be
required to pass upon the sufficiency of any of the Escrowed Securities to
ascertain whether or not the person or persons who have executed, signed or
otherwise issued or authenticated the said documents have authority to so
execute, sign or authorize, issue or authenticate the said documents or any of
them, or that they are the same persons named therein or otherwise to pass upon
any requirement of such instruments that may be essential for their validity,
but it shall be sufficient for all purposes under this Agreement insofar as the
Escrow Agent is concerned that the said documents are deposited with it as
herein specified by the parties executing this Agreement with the Escrow Agent. |
| 4.6 |
In the event that the Escrowed Securities are
attached, garnished or levied upon under any court order, or if the delivery of
such property is stayed or enjoined by any court order or if any court order,
judgment or decree is made or entered affecting such property or affecting any
act by the Escrow Agent, the Escrow Agent may, in its sole discretion, obey and
comply with all writs, orders, judgments or decrees so entered or issued,
whether with or without jurisdiction, notwithstanding any provision of this
Agreement to the contrary. If the Escrow Agent obeys and complies with any
such writs, orders, judgments or decrees, it will not be liable to any of the
parties hereto or to any other person, form or corporation by reason of such
compliance, notwithstanding that such writs, orders, judgments or decrees may
be subsequently reversed, modified, annulled, set aside or vacated. |
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| 4.7 |
Except as herein otherwise provided, the Escrow
Agent is authorized and directed to disregard in its sole discretion any and
all notices and warnings which may be given to it by any of the parties hereto
or by any other person, firm, association or corporation. It will, however, at
its sole discretion, obey the order, judgment or decree of any court of
competent jurisdiction, and it is hereby authorized to comply with and obey
such orders, judgments or decrees and in case of such compliance, it shall not
be liable by reason thereof to any of the parties hereto or to any other
person, firm, association or corporation, even if thereafter any such order,
judgment or decree may be reversed, modified, annulled, set aside or vacated. |
| 4.8 |
If the Escrow Agent receives any valid court
order contrary to the instructions contained in this Agreement, the Escrow
Agent may continue to hold the Escrowed Securities and the PAs until the lawful
determination of the issue between the parties hereto. |
| 4.9 |
If written notice of protest is made by the
Company or the Consultant to the Escrow Agent to any action contemplated by the
Escrow Agent under this Agreement, and such notice sets out reasons for such
protest, the Escrow Agent may at its sole discretion continue to hold the
Escrowed Securities and the PAs until the right to the documents is legally
determined by a court of competent jurisdiction or otherwise. |
| 4.10 |
The Escrow Agent may resign as Escrow Agent by
giving not less than five (5) days’ notice thereof to the Company and the
Consultant. The Company and the Consultant may
terminate the Escrow Agent by giving not less than five (5) days’ notice to the
Escrow Agent. The resignation or termination of the Escrow Agent will be effective
and the Escrow Agent will cease to be bound by this Agreement on the date that
is five (5) days after the date of receipt of the termination notice given
hereunder or on such other date as the Escrow Agent, the Company and the
Consultant may agree upon. All indemnities granted to the
Escrow Agent herein will survive the termination of this Agreement or the
termination or resignation of the Escrow Agent. In the event of termination or
resignation of the Escrow Agent for any reason, the Escrow Agent shall, within
that five (5) days’ notice period deliver the Escrowed Securities and the PA to
the new escrow agent to be named by the Company and the Consultant. |
| 4.11 |
Notwithstanding anything herein to the contrary,
the Escrow Agent may act upon any written instructions given jointly by the
Company and the Consultant. |
| 4.12 |
Notwithstanding anything to the contrary
contained herein, in the event of any dispute arising between the Company and
the Consultant, this Agreement or any matters arising thereto, the Escrow Agent
may in its sole discretion deliver and interplead the Escrowed Securities and
the PAs into court and such delivery and interpleading will be an effective
discharge to the Escrow Agent. |
| 5.1 |
The Company will pay all of the compensation of
the Escrow Agent and will reimburse the Escrow Agent for any and all reasonable
expenses, disbursements and advances made by the Escrow Agent in the
performance of its duties hereunder, including reasonable fees, expenses and
disbursements incurred by its counsel. |
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| 6.1 |
Except as herein otherwise provided, no
subsequent alteration, amendment, change, or addition to this Agreement will be
binding upon the parties hereto unless reduced to writing and signed by the
parties. |
| 6.2 |
This Agreement will enure to the benefit of and
be binding upon the parties and their respective heirs, executors,
administrators and successors. |
| 6.3 |
The parties will execute and deliver all such
further documents, do or cause to be done all such further acts and things, and
give all such further assurances as may be necessary to give full effect to the
provisions and intent of this Agreement. |
| 6.4 |
This Agreement will be governed by and construed
in accordance with the laws of the Province of British Columbia and applicable
federal laws related thereto. |
| 6.5 |
Any notice required or permitted to be given
under this Agreement will be in writing and may be given by delivering, sending
by electronic facsimile transmission or other means of electronic communication
capable of producing a printed copy, or sending by prepaid registered mail, the
notice to the following address: |
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Blox,
Inc.
600 – 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0 |
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Attention: President
Telephone: 0 000 000 0000
Facsimile: 1 604 688 3896 |
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(b) |
If to the Consultant: |
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Xxxxxx Xxxxxxxx
600 – 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0 |
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Attention: Xxxxxx Xxxxxxxx
Telephone: 0 000 000 0000
Facsimile: 1 604 688 3896 |
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(c) |
If to the Escrow Agent: |
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Xxxxx
Xxxxxx LLP
Barristers and Solicitors
900 – 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0 |
(or to such
other address as any party may specify by notice in writing to another party).
Any notice delivered or sent by electronic facsimile transmission or other
means of electronic communication capable of producing a printed copy on a
business day will be deemed conclusively to have been effectively given on the
day the notice was delivered, or the electronic communication was successfully
transmitted, as the case may be. Any notice sent by prepaid registered mail
will be deemed conclusively to have been effectively given on the third
business day after posting; but if at the time of posting or between the time
of posting and the third business day thereafter there is a strike, lockout, or
other labour disturbance affecting postal service, then the notice will not be
effectively given until actually delivered.
| 6.6 |
Time is of the essence of this Agreement. |
| 6.7 |
It is understood and agreed by the parties to
this Agreement that the only duties and obligations of the Escrow Agent are
those specifically stated herein and no other. |
| 6.8 |
This
Agreement may be executed in one or more counterparts, all of which will be
considered one and the same agreement and will become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart. This Agreement may be executed by delivery of executed signature pages by fax and such fax execution will be
effective for all purposes. |
[Signature
page to follow]
IN WITNESS WHEREOF the parties have caused this Escrow Agreement
to be executed as of the day and year first written above.
BLOX, INC.
| Per: |
“Xxxxxx Xxxxx”
Name: Xxxxxx Xxxxx
Title: President and CEO |
SIGNED by XXXXXX
XXXXXXXX in the presence of:
“signed”
Signature
Print Name
Address
Occupation |
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“Xxxxxx Xxxxxxxx”
Xxxxxx Xxxxxxxx
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XXXXX XXXXXX LLP
