SHARE ESCROW AGREEMENT
Execution
Version
SHARE
ESCROW AGREEMENT, dated as of March 2 2010 (this “Agreement”), by and among Xx
Xxxxxx Energy, Inc., a Nevada corporation (the “Company”), Avante Petroleum
S.A., a Luxembourg corporation (the “Depositor”), and Xxxxxx Jan Xxxxx Lijdsman,
civil law notary in Amsterdam, the Netherlands, as escrow agent (the “Escrow
Agent”).
WHEREAS,
the Company and the Depositor have entered into a Stock Purchase Agreement of
even date herewith (the “SPA”), pursuant to which the Company agrees to acquire
all of the issued and outstanding shares of Avante Colombia S.à.x.x., a
Luxembourg limited liability company, and a wholly owned subsidiary of the
Depositor, in exchange for shares of common stock, par value $0.001 per share
(“Company Common Stock”), of the Company;
WHEREAS,
the SPA provides that an escrow account will be established to secure certain
indemnification obligations of the Depositor set forth in the SPA;
and
WHEREAS,
the parties hereto desire to establish the terms and conditions pursuant to
which such escrow account will be established and maintained.
NOW,
THEREFORE, the parties hereto hereby agree as follows:
1. Consent of
Depositor. The Depositor has, either by virtue of its approval
of the SPA, or through the execution of an instrument to such effect, consented
to: (a) the establishment of this escrow to secure the
Depositor’s indemnification obligations set forth in the SPA in the manner set
forth herein and (b) all of the other terms, conditions and limitations in
this Agreement.
2. Escrow and
Indemnification.
(a) Escrow of
Shares. Simultaneously with the execution of this Agreement,
the Company shall deposit with the Escrow Agent certificates representing an
aggregate of 1,500,000 shares of Company Common Stock, as determined pursuant to
Section 2.3(a) of the SPA, issued in the name of the Depositor. The
Escrow Agent hereby acknowledges receipt of such stock
certificates. The shares deposited with the Escrow Agent pursuant to
the first sentence of this Section 2(a) are referred to herein as the
“Escrow Shares.” The Escrow Shares shall be held as a trust fund and
shall not be subject to any lien, attachment, trustee process or any other
judicial process of any creditor of any party hereto. The Escrow
Agent agrees to hold the Escrow Shares in an escrow account (the “Escrow
Account”), subject to the terms and conditions of this Agreement.
(b) Indemnification. The
Depositor has agreed in Section 10.2 of the SPA to indemnify and hold harmless
the Company from and against certain Environmental Losses (as defined in Section
10.2 of the SPA), among other things. The Escrow Shares shall be
security for such indemnity obligations of the Depositor, subject to the
limitations, and in the manner provided, in this Agreement and the
SPA.
(c) Dividends,
Etc. Any securities distributed in respect of or in exchange
for any of the Escrow Shares, whether by way of stock dividends, stock splits or
otherwise, shall be issued in the name of the Escrow Agent or its nominee and
shall be delivered to the Escrow Agent, who shall hold such securities in the
Escrow Account. Such securities shall be considered Escrow Shares for
purposes hereof. Any cash dividends or property (other than
securities) distributed in respect of the Escrow Shares shall promptly be
distributed by the Escrow Agent to the Depositor in accordance with
Section 3(c).
(d) Voting of
Shares. The Depositor shall have the right to receive notices
of meetings and other communications to shareholders generally, and shall have
the right to exercise any voting rights pertaining to the Escrow
Shares.
(e) Transferability. No
interest of the Depositor in the Escrow Shares may be assigned or transferred,
other than by operation of law. Notice of any such assignment or
transfer by operation of law shall be given to the Escrow Agent and the Company,
and no such assignment or transfer shall be valid until such notice is
given.
3. Distribution of Escrow
Shares.
(a) The
Escrow Agent shall distribute the Escrow Shares only in accordance with (i) a
written instrument delivered to the Escrow Agent that is executed by both the
Company and the Depositor and that instructs the Escrow Agent as to the
distribution of some or all of the Escrow Shares, (ii) an order of a court
of competent jurisdiction, a copy of which is delivered to the Escrow Agent by
either the Company or the Depositor, that instructs the Escrow Agent as to the
distribution of some or all of the Escrow Shares, or (iii) the provisions
of Section 3(b) hereof.
(b) Except
as provided below, within five business days after March 2, 2012 (the
“Termination Date”), the Escrow Agent shall, automatically, without any notice
required, distribute to the Depositor all of the Escrow Shares then held in
escrow, registered in the name of the Depositor. Notwithstanding the
foregoing, if the Company has previously delivered to the Escrow Agent a copy of
a Claim Notice (as hereinafter defined) and the Escrow Agent has not received
written notice of the resolution of the claim covered thereby, or if the Company
has previously delivered to the Escrow Agent a copy of an Expected Claim Notice
(as hereinafter defined) and the Escrow Agent has not received written notice of
the resolution of the anticipated claim covered thereby, the Escrow Agent shall
retain in escrow after the Termination Date such number of Escrow Shares as have
a Value (as defined in Section 4 below) equal to the Claimed Amount (as
hereinafter defined) covered by such Claim Notice or equal to the estimated
amount of Environmental Losses set forth in such Expected Claim Notice, as the
case may be. Any Escrow Shares so retained in escrow shall be
distributed only in accordance with the terms of clauses (i) or (ii) of
Section 3(a) hereof. For purposes of this Agreement, a Claim
Notice means a written notification under the SPA given by the Company to the
Depositor which contains (i) a description and the amount (the “Claimed Amount”)
of any Environmental Losses incurred or reasonably expected to be incurred by
the Company, and (ii) a statement that the Company is entitled to
indemnification under Article X of the SPA for such Environmental Losses and a
reasonable explanation of the basis therefor. For purposes of this
Agreement, an “Expected Claim Notice” means a notice delivered pursuant to the
SPA by the Company to the Depositor, before expiration of the relevant
representation, warranty or covenant, to the effect that, as a result a legal
proceeding instituted by or written claim made by a third party, the Company
reasonably expects to incur Environmental Losses as a result of a breach of such
representation, warranty or covenant.
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(c) Any
distribution of all or a portion of the Escrow Shares (or cash or other property
pursuant to Section 2(c)) to the Depositor shall be made by delivery of
stock certificates issued in the name of the Depositor (or cash or other
property).
4. Valuation of Escrow
Shares. For purposes of this Agreement, the per share “Value”
of any Escrow Shares delivered in satisfaction of an indemnity claim shall be
the volume weighted average sale prices of the Company Common Stock on the OTC
Bulletin Board or primary stock exchange on which the Company Common Stock is
then listed for the sixty (60) most recent trading days on which sales have
occurred ending on the trading day prior to the relevant date of determination;
provided that if the
Company Common Stock is not then quoted on the OTC Bulletin Board or any stock
exchange, then the “Value” of any Escrow Shares shall be determined by
independent appraisal by a mutually selected appraiser. If the
Company and the Depositor are unable to agree on the independent appraiser
within five (5) business days after a notice pursuant to the SPA by Depositor of
its intent to deliver shares in lieu of cash or a notice by the Company pursuant
to the SPA of its intent to receive shares in lieu of cash, as the case may be,
then either the Company or the Depositor may request that the American
Arbitration Association appoint an arbitrator according to its rules who shall
then select an appraiser. In all cases, the Value shall be subject to
equitable adjustment in the event of any stock split, stock dividend, reverse
stock split or similar event affecting the Company Common Stock during the
period of calculation and, thereafter, until delivery of the Company Common
Stock in payment of the relevant indemnification obligation.
5. Fees and Expenses of Escrow
Agent. The Company, on the one hand, and the Depositor, on the
other hand, shall each pay one-half of the fees of the Escrow Agent for the
services to be rendered by the Escrow Agent hereunder. The Escrow
Agent shall charge an initial fee of $10,000 (exclusive of VAT, if
any). Furthermore the Escrow Agent shall charge a fee for services
after execution of this Agreement which shall be separately invoiced on the
basis of actual time spent at the then applicable hourly rate, increased by
further costs and disbursements incurred by the Escrow Agent.
6. Duties and Obligations of
Escrow Agent.
(a) The
parties hereto agree that the duties and obligations of the Escrow Agent shall
be only those obligations herein specifically provided and no
other. The Escrow Agent’s duties are those of a depositary only, and
the Escrow Agent shall incur no liability whatsoever, except as a direct result
of its willful misconduct or gross negligence in the performance of its duties
hereunder.
(b) The
Escrow Agent may consult with counsel of its choice, and shall not be liable for
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the advice of such counsel.
(c) The
Escrow Agent shall not be bound in any way by the terms of any other agreement
to which the Depositor and the Company are parties, whether or not the Escrow
Agent has knowledge thereof, and the Escrow Agent shall not in any way be
required to determine whether or not any other agreement has been complied with
by the Depositor and the Company, or any other party thereto. The
Escrow Agent shall not be bound by any modification, amendment, termination,
cancellation, rescission or supersession of this Agreement unless the same shall
be in writing and signed by the Depositor and the Company and agreed to in
writing by the Escrow Agent.
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(d) If
the Escrow Agent shall be uncertain as to its duties or rights hereunder or
shall receive instructions, claims or demands which, in its opinion, are in
conflict with any of the provisions of this Agreement, the Escrow Agent shall be
entitled to refrain from taking any action other than keeping safely the Escrow
Shares or take action it deems until the Escrow Agent is directed otherwise in
writing jointly by the Depositor and the Company or by a final judgment of a
court of competent jurisdiction.
(e) The
Escrow Agent shall be fully protected in relying upon any written notice,
instruction, demand, certificate or document which the Escrow Agent, in good
faith, believes to be genuine. The Escrow Agent shall not be responsible
for the sufficiency or accuracy of the form, execution, validity or genuineness
of documents or securities now or hereafter deposited hereunder or of any
endorsement thereon, or for any lack of endorsement thereon, or for any
description therein; nor shall the Escrow Agent be responsible or liable in any
respect on account of the identity, authority or rights of the persons executing
or delivering or purporting to execute or deliver any such document, security or
endorsement.
(f) The
Escrow Agent shall not be required to institute legal proceedings of any kind
and shall not be required to defend any legal proceedings which may be
instituted against it or in respect of the Escrow Shares.
(g) If
the Escrow Agent at any time, in its sole discretion, deems it necessary or
advisable to relinquish custody of any of the Escrow Shares, it may do so by
delivering the same to another Person that agrees to act as escrow agent
hereunder and whose substitution for the Escrow Agent is agreed upon in writing
by the Depositor and the Company. The Company may appoint a successor
Escrow Agent without the consent of the Depositor so long as such successor is a
chartered bank and may appoint any other successor Escrow Agent with the consent
of the Depositor, which shall not be unreasonably withheld. If no
such escrow agent is selected within ten (10) days after the Escrow Agent gives
notice to the Depositor and the Company of the Escrow Agent’s desire to so
relinquish custody of the Escrow Shares and resign as Escrow Agent, then the
Escrow Agent may do so by delivering the Escrow Shares to the clerk or other
proper officer of a state or federal court of competent jurisdiction situate in
the state and county of New York. The fee of any court officer shall
be borne by the Company. Upon such delivery, the Escrow Agent shall
be discharged from any and all responsibility or liability with respect to
the Escrow Shares and this Agreement and each of the Depositor and the Company
shall promptly pay all monies it may owe to the Escrow Agent for its services
hereunder, including, but not limited to, reimbursement of its out-of-pocket
expenses.
(h) Upon
the performance of this Agreement, the Escrow Agent shall be deemed released and
discharged of any further obligations hereunder.
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(i) The
Escrow Agent agrees to perform its obligations hereunder in accordance with the
provisions of Section hereof.
7. Indemnification of Escrow
Agent.
(a) The
Depositor and the Company, jointly and severally, hereby indemnify and hold the
Escrow Agent harmless from and against any and all losses, damages, taxes,
(other than taxes related to the fee of the Escrow Agent), liabilities and
expenses that may be incurred by the Escrow Agent, arising out of or in
connection with its acceptance of appointment as the Escrow Agent hereunder
and/or the performance of its duties pursuant to this Agreement, including, but
not limited to, all reasonable legal costs and expenses of the Escrow Agent
incurred defending itself against any claim or liability in connection with its
performance hereunder, provided that the Escrow Agent shall not be entitled to
any indemnity for any losses, damages, taxes, liabilities or expenses that
directly result from its willful misconduct or gross negligence in
its performance as Escrow Agent hereunder.
(b) In
the event of any legal action or proceeding involving any of the parties to this
Agreement which is brought to enforce or otherwise adjudicate any of the rights
or obligations of the parties hereunder, the non-prevailing party or parties
shall pay the reasonable legal fees of the prevailing party or parties and the
reasonable legal fees, if any, of the Escrow Agent.
8. Termination. This
Agreement shall terminate upon the distribution by the Escrow Agent of all of
the Escrow Shares in accordance with this Agreement; provided that the
provisions of Sections 6 and 7 shall survive such termination.
9. Notices. All
notices, instructions and other communications given hereunder or in connection
herewith shall be in writing. Any such notice, instruction or
communication shall be sent either (i) by registered or certified mail,
return receipt requested, postage prepaid, or (ii) via a reputable
nationwide overnight courier service, in each case to the address set forth
below. Any such notice, instruction or communication shall be deemed
to have been delivered when received if sent by registered or certified mail,
return receipt requested, postage prepaid, or one business day after it is sent
via a reputable nationwide overnight courier service.
If to the
Company:
Xx Xxxxxx
Energy, Inc.
Xxxxx 00
#0-00 Xxxxxxx 000
Xxxxxx,
Xxxxxxxx
Attn: Xxxxxx
Xxxxxxxxx Xxxxxx, President & CEO
Facsimile: 000-000-0000
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with a
copy to (which shall not constitute notice hereunder):
Gottbetter
& Partners, LLP
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxx
X. Xxxxxxxxxx, Esq.
Facsimile: (000)
000-0000
If to the
Depositor:
c/o
Oranje-Nassau Groep B.V.
Rembrandt
Tower, 22nd floor
Xxxxxxxxxxx
0
0000 XX
Xxxxxxxxx
Xxx
Xxxxxxxxxxx
Attn: Xxxxxxxxx
Xxxxxx, CEO
Facsimile: 00-00-000-0000
If to the
Escrow Agent:
Name: Xxxxx
& Xxxxx
Attention: Mr.
R.J.J. Lijdsman
Address: X.X.
Xxx 00000
0000 XX
Xxxxxxxxx
Xxx
Xxxxxxxxxxx
with a
copy faxed to: x00 00 000 0000; or
a PDF
mailed to: xxxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
Any party
may give any notice, instruction or communication in connection with this
Agreement using any other means (including personal delivery, ordinary mail,
facsimile or electronic mail), but no such notice, instruction or communication
shall be deemed to have been delivered unless and until it is actually received
by the party to whom it was sent. Any party may change the address to
which notices, instructions or communications are to be delivered by giving the
other parties to this Agreement notice thereof in the manner set forth in this
Section 9.
10. General.
(a) Governing Law;
Assigns. This Agreement shall be governed by and construed in
accordance with the laws of the Netherlands without regard to conflict-of-law
principles and shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.
(b) Counterparts and Facsimile
Signature. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement
may be executed by facsimile signature.
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(c) Entire
Agreement. Except for those provisions of the SPA referenced
herein, this Agreement constitutes the entire understanding and agreement of the
parties with respect to the subject matter of this Agreement and supersedes all
prior agreements or understandings, written or oral, between the parties with
respect to the subject matter hereof.
(d) Waivers. No
waiver by any party hereto of any condition or of any breach of any provision of
this Agreement shall be effective unless in writing. No waiver by any
party of any such condition or breach, in any one instance, shall be deemed to
be a further or continuing waiver of any such condition or breach or a waiver of
any other condition or breach of any other provision contained
herein.
(e) Amendment. This
Agreement may be amended only with the written consent of the Company, the
Depositor and the Escrow Agent.
(f) Consent to Jurisdiction and
Service. The parties hereby absolutely and irrevocably consent
and submit to the jurisdiction of the courts in Amsterdam, the Netherlands in
connection with any actions or proceedings brought against any party hereto by
the Escrow Agent arising out of or relating to this Agreement. In any
such action or proceeding, the parties hereby absolutely and irrevocably waive
personal service of any summons, complaint, declaration or other process and
hereby absolutely and irrevocably agree that the service thereof may be made by
certified or registered first-class mail directed to such party, at their
respective addresses in accordance with Section 9 hereof.
[Signature page follows
immediately]
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IN
WITNESS WHEREOF, the parties have duly executed this Share Escrow Agreement as
of the day and year first above written.
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XX
XXXXXX ENERGY, INC.
By:
___________________________
Name:
Title:
AVANTE
PETROLEUM S.A.
By:
___________________________
Name:
Title:
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Escrow
Agent:
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___________________________ |
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Xxxxxx
Jan Xxxxx Lijdsman
Civil
law notary in Amsterdam, the
Netherlands
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