Contract
STOCK
ESCROW AGREEMENT
dated as
of January 31, 2008 among IDCentrix, Inc., a Delaware corporation (the
“Company”),
Sterling Gold Corp., a Nevada Corporation (“Sterling”),
Fortress Paper Ltd., a company organized pursuant to the laws of the Province
of
British Columbia (“Fortress”),
and
Xxxxxx Xxxx & Xxxxxx LLP as escrow agent (the “Escrow
Agent”).
WITNESSETH:
WHEREAS,
this Agreement is being entered into contemporaneously with the consummation
of
the transactions contemplated by (i) that certain Amended and Restated
Technology SubLicense Agreement, dated the date hereof, between Fortress
and the
Company (the “Restated
SubLicense"),
(ii)
that certain Technology SubLicense Agreement (US), dated the date hereof,
between Fortress and the Company (the “SubLicense")
and
(iii) that certain Share Exchange Agreement, dated the date hereof, among
the
Company, Sterling, the shareholders of the Company (including Fortress) and
the
Shareholders Representative (as defined therein) (the “Exchange
Agreement");
and
WHEREAS,
pursuant to the Restated SubLicense and the SubLicense, the Company will
have
issued to Fortress an aggregate of Ten Million (10,000,000) shares of common
stock of the Company; and
WHEREAS,
pursuant to the Exchange Agreement, Fortress will have exchanged the 10,000,000
shares of the Company common stock issued to it pursuant to the Restated
SubLicense and the SubLicense for 10,000,000 shares of common stock of Sterling
(the “Shares”);
WHEREAS,
Fortress has agreed as a condition of the Company’s obligation to issue the
shares of common stock pursuant to the SubLicense, to deposit 4,875,000 of
the
Shares (collectively, the “Escrow
Shares”)
in
escrow as hereinafter provided;
WHEREAS,
the Company and Fortress desire that the Escrow Agent accept the Escrow Shares,
in escrow, to be held and disbursed as hereinafter provided.
NOW,
THEREFORE, in consideration of the premises, representations and warranties
and
the mutual covenants and agreements contained herein and other good, valuable
and sufficient consideration, the receipt of which is hereby acknowledged,
the
parties, intending to be legally bound, agree as follows:
ARTICLE
1
APPOINTMENT
1.1 Appointment
of Escrow Agent.
The
Company, Sterling and Fortress hereby appoint the Escrow Agent to act in
accordance with and subject to the terms and conditions of this Agreement
and
the Escrow Agent hereby accepts such appointment and agrees to act in accordance
with and subject to such terms and conditions.
ARTICLE
2
ESCROW
SHARES
2.1 Deposit.
On the
date hereof, Sterling shall deliver to the Escrow Agent certificates
representing the Escrow Shares, to be held and disbursed subject to the terms
and conditions of this Agreement. Fortress acknowledges that the certificates
representing the Escrow Shares is legended to reflect the deposit of such
Escrow
Shares under this Agreement.
2.2 Scheduled
Release of Escrow Shares During the Escrow Period.
The
Escrow Agent shall hold and disburse the Escrow Shares during the period
starting on the date hereof and ending on January 31, 2011 (the “Escrow
Period”)
as
follows:
(a) On
July
31, 2008, the Escrow Agent shall disburse 812,500 shares of the Escrow Shares
to
Fortress.
(b) On
January 31, 2009, the Escrow Agent shall disburse 812,500 shares of the
remaining Escrow Shares to Fortress.
(c) On
July
31, 2009, the Escrow Agent shall disburse 812,500 shares of the remaining
Escrow
Shares to Fortress.
(d) On
January 31, 2010, the Escrow Agent shall disburse 812,500 shares of the
remaining Escrow Shares to Fortress.
(e) On
July
31, 2010, the Escrow Agent shall disburse 812,500 shares of the remaining
Escrow
Shares to Fortress.
(f) On
January 31, 2011, the Escrow Agent shall disburse the remaining 812,500 shares
of the Escrow Shares to Fortress.
All
numbers contained in, and all calculations required to be made pursuant to,
this
Agreement (including any amounts payable or distributable as cash or non-cash
dividends) shall be adjusted as appropriate to reflect any stock split, reverse
stock split or similar transaction effected by Sterling after the date
hereof.
2.3 Rights
of Fortress in Escrow Shares.
(a) Voting
Rights as a Stockholder.
Except
as herein provided, Fortress shall retain all of its rights as a stockholder
of
Sterling during the Escrow Period, including, without limitation, the right
to
vote such shares.
(b) Dividends
and Other Distributions in Respect of the Escrow Shares.
During
the Escrow Period, any cash or non-cash dividends payable or distributable
with
respect to the Escrow Shares shall be paid to Fortress. Such dividends shall
not
be subject to the terms of this Escrow Agreement.
2
(c) Restrictions
on Transfer.
During
the Escrow Period, Fortress shall not pledge or grant a security interest
in the
Escrow Shares or grant a security interest in its rights under this Agreement,
unless any such pledge or security interest is expressly made subject to
the
terms of this Agreement.
ARTICLE
3
CONCERNING
THE ESCROW AGENT
3.1 Good
Faith Reliance.
The
Escrow Agent shall not be liable for any action taken or omitted by it in
good
faith and in the exercise of its own best judgment, and may rely conclusively
and shall be protected in acting upon any order, notice, demand, certificate,
opinion or advice of counsel (including counsel chosen by the Escrow Agent),
statement, instrument, report or other paper or document (not only as to
its due
execution and the validity and effectiveness of its provisions, but also
as to
the truth and acceptability of any information therein contained) which is
believed by the Escrow Agent to be genuine and to be signed or presented
by the
proper person or persons. The Escrow Agent shall not be bound by any notice
or
demand, or any waiver, modification, termination or rescission of this Agreement
unless evidenced by a writing delivered to the Escrow Agent signed by the
proper
party or parties and, if the duties or rights of the Escrow Agent are affected,
unless it shall have given its prior written consent thereto.
3.2 Indemnification.
The
Escrow Agent shall be indemnified and held harmless by the Company and Sterling,
jointly and severally, from and against any expenses, including reasonable
counsel fees and disbursements, or loss suffered by the Escrow Agent in
connection with any action, claim or proceeding brought against the Escrow
Agent
involving any claim, or in connection with any claim or demand which in any
way,
directly or indirectly, arises out of or relates to this Agreement, the services
of the Escrow Agent hereunder, or the Escrow Shares held by it hereunder,
other
than expenses or losses arising from the gross negligence, bad faith or willful
misconduct of the Escrow Agent. Promptly after the receipt by the Escrow
Agent
of notice of any demand or claim or the commencement of any action, claim
or
proceeding pursuant to which the Escrow Agent intends to seek indemnification
under this Section 3.2, it shall promptly give the Company and Sterling written
notice of such claim, specifying in reasonable detail the nature and all
known
particulars related to such claim. In the event of the receipt of such notice,
the Escrow Agent, in its sole discretion, may commence an action in the nature
of interpleader in an appropriate court to determine ownership or disposition
of
the Escrow Shares or it may deposit the Escrow Shares with the clerk of any
appropriate court or it may retain the Escrow Shares pending receipt of a
final,
non-appealable order of a court having jurisdiction over all of the parties
hereto directing to whom and under what circumstances the Escrow Shares are
to
be disbursed and delivered. The provisions of this Section 3.2 and Section
3.7
shall survive in the event the Escrow Agent resigns or is discharged pursuant
to
Sections 3.5 or 3.6 below.
3
3.3 Compensation.
The
Escrow Agent shall be entitled to reasonable compensation from Sterling and
the
Company, jointly and severally, for all services rendered by the Escrow Agent
hereunder as set forth in Exhibit
A.
The
Escrow Agent shall also be entitled to reimbursement from Sterling and the
Company, jointly and severally, for all expenses paid or incurred by it in
the
administration of its duties hereunder including, but not limited to, all
counsel, advisors’ and agents’ fees and disbursements and all taxes or other
governmental charges.
3.4 Further
Assurances.
From
time to time on and after the date hereof, the Company, Sterling and Fortress
agree to perform, execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and other acts,
instruments, documents and assurances as may reasonably be required by the
Escrow Agent for the carrying out or performing of the provisions and purposes
of this Agreement, to evidence compliance herewith or to assure itself that
it
is protected in acting hereunder.
3.5 Resignation.
The
Escrow Agent may resign at any time and be discharged from its duties as
escrow
agent hereunder by its giving the other parties hereto written notice and
such
resignation shall become effective as hereinafter provided. Such resignation
shall become effective at such time that the Escrow Agent shall turn over
to a
successor escrow agent appointed by Sterling with the consent by Fortress
(such
consent not to be unreasonably withheld), the Escrow Shares held hereunder.
If
no new escrow agent is so appointed within the sixty (60) day period following
the giving of such notice of resignation, the Escrow Agent may deposit the
Escrow Shares with any court it reasonably deems appropriate.
3.6 Discharge
of Escrow Agent.
The
Escrow Agent shall resign and be discharged from its duties as escrow agent
hereunder if so requested in writing at any time by Sterling and Fortress,
jointly, provided, however, that such resignation shall become effective
only
upon acceptance of appointment by a successor escrow agent as provided in
Section 3.5.
3.7 Liability.
Notwithstanding anything herein to the contrary, the Escrow Agent shall not
be
relieved from liability hereunder for its own gross negligence, bad faith
or
willful misconduct.
3.8 Acknowledgement.
Each of
the parties to this Agreement hereby acknowledges that the Escrow Agent acts
as
counsel to the Company and shall have the right to continue to represent
the
Company and to represent Sterling in the future, including in any action,
proceeding, claim, litigation, dispute, arbitration or negotiation arising
hereunder, and Fortress hereby consents thereto and waives any objection
to the
representation of the Company and Sterling by the Escrow Agent in connection
therewith based upon the services of the Escrow Agent hereunder, or otherwise,
without waiving any duty or obligation the Escrow Agent may have to the parties
under this Agreement.
ARTICLE
4
MISCELLANEOUS
PROVISIONS
4.1 Notices.
All
notices and demands required or permitted to be given pursuant to this Agreement
shall be transmitted by personal delivery, by a nationally recognized courier
service, by registered or certified mail, return receipt requested, postage
prepaid, or by facsimile and shall be addressed as follows:
4
When
the
Company is the intended recipient:
IDCentrix,
Inc.
0000
Xxxxxxxxx Xxxxxx
Xxxxx
0000
Xx
Xxxxxxx, XX 00000
Attention:
Chief Executive Officer
Facsimile:
(000) 000-0000
With
a
copy to:
Xxxxxx
Xxxx & Xxxxxx LLP
000
Xxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Attention: X.
Xxxxxxx Xxxxxx, Esq.
Facsimile: (000)
000-0000
When
Sterling is the intended recipient:
c/o
iDcentrix, Inc.
0000
Xxxxxxxxx Xxx.
Xxxxx
0000
Xx
Xxxxxxx, XX 00000
Attention:
Chief Executive Officer
Telephone:
(000)-000-0000
Facsimile:
(000)-000-0000
With
a
copy to:
Xxxxxx
Xxxx & Xxxxxx LLP
000
Xxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
X. Xxxxxxx Xxxxxx
Telephone:
(000)-000-0000
Facsimile:
(000)-000-0000
When
Fortress is the intended recipient:
Fortress
Paper Ltd.
000
Xxxxxxxx Xxxxx
Xxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X
0X0
Xxxxxx
Attention:
Xxxxxxxx Xxxxxxxxxxx
Facsimile:
(000)-000-0000
5
With
a
copy to:
Sangra
Moller LLP
Barristers
& Solicitors
0000
Xxxxxxxxx Xxxxx
000
Xxxx
Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx
X0X
0X0
Xxxxxx
Attention:
Xxxxxxx Xxx
Facsimile:
(000)-000-0000
When
the
Escrow Agent is the intended recipient:
Xxxxxx
Xxxx & Xxxxxx LLP
000
Xxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
Xx. Xxxxxxx Xxxxxx
Telephone:
(000)-000-0000
Facsimile:
(000)-000-0000
A
party
may designate a new address to which notices required or permitted to be
given
pursuant to this Agreement shall thereafter be transmitted by giving written
notice to that effect to the other parties. Each notice transmitted in the
manner described in this Section 4.1 shall be deemed to have been given,
received and become effective for all purposes at the time it shall have
been
(a) delivered to the addressee as indicated by the affidavit of the messenger
(if transmitted by personal delivery), the receipt of the courier service
(if
transmitted by courier service), the return receipt (if transmitted by mail)
or
the answer back or call back (if transmitted by facsimile) or (b) presented
for
delivery to the addressee as so indicated during normal business hours, if
such
delivery shall have been refused for any reason.
4.2 Governing
Law; Forum; Jury Trial.
THE
VALIDITY, INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS ESCROW AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE. Each party agrees
that
any action, claim or proceeding arising out of this Agreement or the breach
or
threatened breach of this Agreement shall be commenced and prosecuted in
a court
in the State of Delaware. Each party consents and submits to the non-exclusive
personal jurisdiction of any court in the State of Delaware in
respect of any such action, claim or proceeding. Each party consents to service
of process upon it with respect to any such action, claim or proceeding by
registered mail, return receipt requested, and by any other means permitted
by
applicable laws. Each party waives any objection that it may now or hereafter
have to the laying of venue of any such action, claim or proceeding in any
court
in the State of Delaware and
any
claim that it may now or hereafter have that any such action, claim or
proceeding in any court in the State of Delaware has
been
brought in an inconvenient forum. EACH PARTY WAIVES TRIAL BY JURY IN ANY
SUCH
ACTION,
CLAIM OR PROCEEDING.
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4.3 Binding
Effect; Assignment; Third Party Beneficiaries.
This
Agreement shall be binding upon the parties and their respective heirs,
executors, administrators and other successors and assigns and shall inure
to
the benefit of the parties and their respective heirs, executors, administrators
and other successors and permitted assigns. No party shall assign any of
its
rights or delegate any of its duties under this Agreement (by operation of
law
or otherwise) without the prior written consent of the other parties. Any
assignment of rights or delegation of duties under this Agreement by a party
without the prior written consent of another other party or parties, if such
consent is required hereby, shall be void. No such assignment or delegation
shall relieve the assignor or delegator of its obligations hereunder, except
that if a party assigns or delegates as permitted hereunder with the prior
written consent of the other parties, then it shall be relieved of those
obligations assumed by its transferee. Any such transferee shall be deemed
a
third party beneficiary of this Agreement. Except as otherwise provided herein,
no other person shall be, or be deemed to be, a third party beneficiary of
this
Agreement.
4.4 Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties with respect
to the
subject matter hereof and cancels and supersedes all of the previous or
contemporaneous agreements, representations, warranties and understandings
(whether oral or written) by, between or among the parties with respect to
the
subject matter hereof.
4.5 Amendments.
No
addition to, and no cancellation, renewal, extension, modification or amendment
of, this Agreement shall be binding upon a party unless such addition,
cancellation, renewal, extension, modification or amendment is set forth
in a
written instrument that states that it adds to, amends, cancels, renews,
extends
or modifies this Agreement and that is executed and delivered on behalf of
each
party.
4.6 Waivers.
No
waiver of any provision of this Agreement shall be binding upon a party,
unless
such waiver is expressly set forth in a written instrument that is executed
and
delivered by such party. Such waiver shall be effective only to the extent
specifically set forth in such written instrument. Neither the exercise (from
time to time and at any time) by a party of, nor the delay or failure (at
any
time or for any period of time) to exercise, any right, power or remedy shall
constitute a waiver of the right to exercise, or impair, limit or restrict
the
exercise of, such right, power or remedy or any other right, power or remedy
at
any time and from time to time thereafter. No waiver of any right, power
or
remedy of a party shall be deemed to be a waiver of any other right, power
or
remedy of such party or shall, except to the extent so waived, impair, limit
or
restrict the exercise of such right, power or remedy.
4.7 Remedies
Limited.
No
party shall, for any reason or under any legal theory, be liable for any
special, indirect, incidental or consequential damages arising out of any
breach
of or default under this Agreement, even if informed of the possibility of
such
damages in advance.
4.8 Headings;
Counterparts; Interpretation.
(a) Headings.
The
headings set forth herein have been inserted for convenience of reference
only,
shall not be considered a part of this Agreement and shall not limit, modify
or
affect in any way the meaning or interpretation of this Agreement.
7
(b) Counterparts.
This
Agreement may be signed in any number of counterparts, each of which (when
executed and delivered) shall constitute an original instrument, but all
of
which together shall constitute one and the same instrument. This Agreement
shall become effective and be deemed to have been executed and delivered
by all
of the parties at such time as counterparts shall have been executed and
delivered by each of the parties, regardless of whether each of the parties
has
executed the same counterpart. It shall not be necessary when making proof
of
this Agreement to account for any counterparts other than a sufficient number
of
counterparts which, when taken together, contain signatures of all of the
parties. Delivery of a counterpart by facsimile or pdf shall be as effective
as
delivery of an original.
(c) Interpretation.
Each of
the parties has participated substantially in the negotiation and drafting
of
this Agreement and no ambiguity herein shall be construed against the draftsman.
4.9 Severability.
If any
provision of this Agreement shall hereafter be held to be invalid, unenforceable
or illegal, in whole or in part, in any jurisdiction under any circumstances
for
any reason, (a) such provision shall be reformed to the minimum extent necessary
to cause such provision to be valid, enforceable and legal while preserving
the
intent of the parties as expressed in, and the benefits to the parties provided
by, this Agreement or (b) if such provision cannot be so reformed, such
provision shall be severed from this Agreement and an equitable adjustment
shall
be made to this Agreement (including addition of necessary further provisions
to
this Agreement) so as to give effect to the intent so expressed and the benefits
so provided. Such holding shall not affect or impair the validity,
enforceability or legality of such provision in any other jurisdiction or
under
any other circumstances. Neither such holding nor such reformation nor severance
shall affect or impair the legality, validity or enforceability of any other
provision of this Agreement.
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of page intentionally left blank]
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IN
WITNESS WHEREOF,
the
Parties have executed and delivered this Agreement as of the date first above
written.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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FORTRESS
PAPER LTD.
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By:
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Name:
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Title:
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XXXXXX
XXXX & XXXXXX LLP, as Escrow Agent
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By:
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Name:
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EXHIBIT
A
Escrow
Agent Fees, Charges and Expenses
10
