This Escrow Agreement
(the Agreement) is dated as of February 20, 2007 and is made by and between The Bank of
, a New York
banking corporation with its principal corporate trust office at 101 Barclay
Street, 8th Floor West, New York
, New York
10286 (the Escrow Agent) and Gold Run Inc.
corporation with its principal office at 330 Bay Street, Suite 820, Toronto M5H 2S8,
Ontario, Canada (the Company).
Company intends to offer for sale 8,000,000 shares of its Common Stock, par value $.000001 per share
(the Stock) in a public offering on an all-or-none basis (the Offering);
the Company is self-underwriting the Offering, the Company may still use members of the National
Association of Securities Dealers, Inc. and foreign brokers to offer the Stock on behalf of the
Company proposes to engage the Escrow Agent for the purpose of receiving, depositing and holding in
a segregated non interest-bearing escrow account all funds wired, and all funds presumed cleared
from checks deposited, into the escrow account (the Proceeds) from subscribers for the
Stock (the Subscribers) received in connection with the Offering until such time as such
funds are to be released to the Company or returned to the Subscribers; and
Escrow Agent has agreed to act as escrow agent in connection with the proposed subscription and sale
of the Stock.
it is agreed as follows:
Section 1. Appointment of Escrow
The Company hereby
appoints the Escrow Agent as escrow agent and custodian for the purposes of this Agreement, and the
Escrow Agent accepts such appointment, each upon the terms and subject to the conditions set forth
in this Agreement.
Section 2. Establishment of Escrow
The Escrow Agent shall,
prior to the effective date of the Offering, cause to be opened a fully segregated,
non-interest-bearing escrow account entitled Gold Run Inc.
Initial Public Offering Escrow
Account (the Escrow Account) for the purpose of holding in trust all Proceeds on
behalf of the Company and the Subscribers.
Section 3. Deposits
(a) The Escrow Agent
shall deposit the Proceeds without interest in the Escrow Account on the terms and conditions of
this Agreement. The Proceeds may not be reinvested.
(b) Except as provided
herein, the Escrow Agent is not authorized absent the Companys express written consent to
accept instructions under this Agreement from anyone other than the Company.
(c) The Company and/or
its designees shall, in connection with all Proceeds received under the Offering, instruct each
Subscriber to remit the purchase price in the form of checks or wire transfers payable to the Escrow
Agent. Checks shall be payable to THE BANK OF NEW YORK
AS ESCROW AGENT FOR GOLD RUN INC.
and must list the name of the Subscriber and the Subscribers address and telephone number on
its face. Checks must be certified if remitted during the last five (5) business days of the
offering period. Wire transfers shall be made in Federal Funds transferred as follows:
The Bank of New York
Cust A/C #369196
Acct Name: Gold Run IPO Escrow
Wire transfers must be accompanied by
the name of the Subscriber and the Subscribers address and telephone number. Because the
Company is selling the Stock at a price of One Dollar ($1.00) per share in this Offering, all checks
and wire transfers must be in the amount of whole integers. The Escrow Agent shall deposit promptly
into the Escrow Account all of the Proceeds received in accordance herewith.
(d) The Escrow Agent
shall furnish to the Company at least once a week a document indicating the following: (i) the names
and addresses of all Subscribers who have tendered funds; (ii) the proceeds that the Escrow Agent
has received from each Subscriber, and (iii) how much of the proceeds are held in good funds.
checks which are received by the Escrow Agent that are made payable to a party other
than the Escrow Agent or do not otherwise meet the requirements set forth in Section
3(c) above shall not be deposited but shall instead be forwarded to the Company so
that it may contact the Subscriber and take appropriate corrective action.
(f) The Escrow Agent
shall notify the Company in the event that the Escrow Agent receives a wire transfer that does not
comport with the requirements set forth in Section 3(c) above. If the Escrow Agent does not receive
instructions from the Company respecting the disposition of said wire prior to the close of business
on the second business day after notifying the Company of receipt of said wire, then the Escrow
Agent shall return the funds to the prospective Subscriber.
Section 4. Rejection of
Since any subscriptions
shall relate to the offering of the Stock pursuant to a registration statement declared effective by
the Securities and Exchange Commission, it will be presumed that all subscriptions received by the
Escrow Agent will be acceptable to the Company. The Escrow Agent shall furnish to the Company at
least once a week a list containing the names and addresses of Subscribers and the number of shares
subscribed for by each Subscriber. The number of shares subscribed for by each Subscriber is equal
to the number of dollars that each Subscriber remitted. To the extent that any Subscriber is not a
resident of a state in which the Stock has been qualified for sale or in which there is an exemption
from qualification available, the Company shall have the right to reject such subscription. With
respect to each subscription which is rejected, the Company will notify the Escrow Agent of such
rejection in writing, and upon receipt of such notification, the Escrow Agent will within three (3)
business days, assuming the Subscribers funds have cleared, issue a check in the amount of the
rejected Subscribers subscription directly to the rejected Subscriber.
Section 5. Disbursements from
(a) If subscriptions for
8,000,000 shares of Stock have not been deposited in the Escrow Account and accepted by the Company
on or before (i) sixty (60) days after the effective date of the Offering, if the Company has not
extended the offering period by up to an additional thirty (30) days; or (ii) in the event that the
Company has extended the offering period beyond sixty (60) days, the date on which any such
extension of the offering period will end, such date not being more than ninety (90) days after the
effective date of the Offering; or (iii) the date upon which the Company elects to terminate the
Offering (the Termination Date), then upon instruction by the Company as to the amounts
and recipients of the funds then being held in escrow, the Escrow Agent shall terminate the Escrow
Account and return the subscription funds to each Subscriber within three (3) business days
thereafter. In the event that the Company elects to extend the offering period beyond sixty (60)
days after the effective date of the Offering, then the Company must notify the Escrow Agent not
later than the fifty-fifth (55th) day after the effective date of the Offering of the period of any
(b) Once subscriptions
for 8,000,000 shares of Stock have been deposited into the Escrow Account, and upon clearance of
$8,000,000.00 in good funds, the Escrow Agent shall in accordance with Section 6 below release to
the Company all of the Proceeds held in the Escrow Account.
(c) To the extent that
the Company is required to pay any commissions to NASD members or foreign brokers, the Company will
pay such commissions from the funds transmitted to it by the Escrow Agent.
Section 6. Procedure for
Disbursement from the Escrow Account
The Proceeds held in the
Escrow Account shall be subject to and distributed in accordance with the following
(a) Upon satisfaction of
the applicable requirements of this Section 6, the Escrow Agent shall transfer by wire to an account
designated by the Company the Proceeds requested to be transferred on such date as may be in a
notice executed by the Company.
(b) Within three (3)
business days of the Termination Date, all Proceeds received by the Escrow Agent shall be returned
by check directly to each Subscriber having provided such Proceeds, without deduction, penalty or
expense to the Subscriber and without interest. The Escrow Agent shall notify the Company of the
distribution of such funds to the Subscribers.
(c) The Escrow Agent
does not have any property interest in the funds deposited in the Escrow Account (the Escrowed
Property) but is serving only as escrow holder and custodian thereof. Upon request, the
Company shall pay or reimburse the Escrow Agent for any transfer taxes or other taxes relating to
the Escrowed Property incurred in connection herewith and shall indemnify and hold harmless the
Escrow Agent for any amounts that it is obligated to pay in the way of such taxes. This paragraph
shall survive the termination of this Escrow Agreement
or the resignation of the Escrow Agent.
Section 7. Termination of
In the event of the
release of the Proceeds in accordance with Sections 5 and/or 6 of this Agreement, this Agreement
shall terminate and the Escrow Agent shall be relieved of all responsibilities in connection with
the Escrowed Property provided for in this Agreement, except for claims that are occasioned by its
negligence, bad faith or willful misconduct.
Section 8. Compensation of Escrow
(a) For its services
hereunder, the Escrow Agent shall be entitled to receive from the Company: (i) a fee of $10,000 for
escrow setup and maintenance upon the execution and delivery of this Agreement, and (ii)
reimbursement for any reasonable out-of-pocket expenses incurred by the Escrow Agent in connection
with the services provided in accordance with this Agreement and the Escrow Agents fee
(b) The provisions of
this Section 8 shall survive the termination of this Agreement and/or the resignation or removal of
the Escrow Agent.
Section 9. Responsibilities of
Escrow Agent; Notices
(a) The Escrow Agent
shall be under no duty to enforce the payment of any subscription for which funds are tendered in
connection herewith; provided, however, that the Escrow Agent must inform the Company within three
(3) business days in the event that any tendered payment is denied or deemed unpayable.
(b) The Escrow Agent
shall be obligated to perform only such duties as are expressly set forth in this Agreement. No
implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor
shall the Escrow Agent be bound by the provisions of any agreement with the Company beyond the
specific terms hereof.
(c) The Escrow Agent
shall not be liable hereunder except for its own gross negligence or willful misconduct and the
Company agrees to indemnify the Escrow Agent and hold it harmless as to any loss, liability, or
expense, including reasonable attorneys fees and expenses, incurred without gross negligence
or willful misconduct on the part of the Escrow Agent and arising out of or in connection with the
Escrow Agents duties under this Agreement.
(d) The Escrow Agent
shall be entitled to rely upon any order, judgment, certification, instruction, notice, opinion or
other writing delivered to it in compliance with the provisions of this Agreement without being
required to determine the authenticity or the correctness of any fact stated therein or the
propriety or validity of service thereof. The Escrow Agent may act in reliance upon any instrument
comporting with the provisions of this Agreement and upon signature believed by it to be genuine and
may assume that any person purporting to give notice or receipt or advice or to make any statement
or execute any document in connection with the provisions hereof has been duly authorized to do
(e) The Escrow Agent
may at any time request in writing an instruction in writing from the Company, and may at its own
option include in such request the course of action that the Escrow Agent proposes to take and the
date on which it proposes to act, regarding any matter arising in connection with its duties and
obligations hereunder. The Escrow Agent shall not be liable for acting without the Companys
consent in accordance with such a proposal on or after the date specified therein, provided that the
specified date shall be at least two (2) business days after the Company receives the Escrow
Agents request for instructions and its proposed course of action, and provided that, prior to
so acting, the Escrow Agent has not received written instructions from the Company.
(f) The Escrow Agent
may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this
Agreement and shall not be liable for any action taken or omitted in accordance with such
(g) The Escrow Agent
shall not be called upon to advise any party as to selling or retaining, or taking or refraining
from taking any action with respect to any securities or other property deposited hereunder.
(h) No provision of
this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder.
(i) The Escrow Agent
shall be deemed conclusively to have given and delivered any notice required to be given or
delivered to the Company if it is in writing, signed by any one of the Escrow Agents
authorized officers and mailed, by express, registered or certified mail addressed to the Company at
330 Bay Street, Suite 820
Canada M5H 2S8
Facsimile: (416) 364-2292
(j) The Escrow Agent
shall be deemed conclusively to have received any notice required to be given or delivered to the
Escrow Agent if it is in writing, signed by any one of the authorized officers of the Company, and
mailed, by express, registered or certified mail addressed to the Escrow Agent at:
The Bank of
101 Barclay St, 8th Floor WestNew York
, NY 10286
Attn: Insurance Trust & Escrow
Facsimile: (212) 815-5875/5877
(k) The Escrow Agent
hereby accepts its obligations under this Agreement, and represents and warrants that the Escrow
Agent has the power and legal authority to enter into this Agreement and to perform the Escrow
Agents obligations under this Agreement. The Escrow Agent covenants and agrees that all
Escrowed Property shall be identified as being held in escrow in connection with this Agreement. The
Escrow Agent further covenants and agrees that all documents and records with respect to the matters
subject to and transactions contemplated by this Agreement will be available, upon reasonable
written notice, for examination by the Company, the SEC or any state securities authorities.
(l) The provisions of
this Sections 9 shall survive termination of this Agreement and/or the resignation or removal of the
Section 10. Resignation of Escrow
to the contrary herein, the Escrow Agent may resign at any time by giving at least thirty (30) days
written notice thereof. The Company may remove the Escrow Agent at any time by giving at least
fifteen (15) days written notice thereof. Within ten (10) days after receiving such notice, the
Company shall appoint a successor escrow agent at which time the Escrow Agent shall either (i)
distribute as directed by the instructions of the Company the funds held in the Escrow Account, less
the Escrow Agents fees, costs and expenses or other obligations owed to the Escrow Agent, or
(ii) hold such funds pending distribution until such fees, costs and expenses or other obligations
are paid. If a successor escrow agent has not been appointed or has not accepted such appointment by
the end of the 10 day period, then the Escrow Agent may apply to a court of competent jurisdiction
for the appointment of a successor escrow agent or for other appropriate relief, and the costs,
expenses and reasonable attorneys fees which the Escrow Agent incurs in connection with such a
proceeding shall be paid by the Company.
Section 11. Claims Respecting
Funds in Escrow
In the event of any
dispute or conflicting claims by, between or among the Company and/or any other person or entity
with respect to any Proceeds held in the Escrow Account, the Escrow Agent shall be entitled, at its
sole discretion, to refuse to comply with any and all claims, demands or instructions with respect
to such Proceeds so long as such dispute or conflict shall continue, and the Escrow Agent shall not
be or become liable in any way to the Company for the Escrow Agents failure or refusal to
comply with such conflicting claims, demands or instructions, except to the extent that such failure
would constitute gross negligence, bad faith or willful misconduct on the part of the Escrow Agent.
The Escrow Agent shall be entitled to refuse to act until, at its sole discretion, either such
conflicting or adverse claims or demands shall have been finally determined in a court of competent
jurisdiction or settled by agreement between the conflicting parties as evidenced in writing
satisfactory to the Escrow Agent, or the Escrow Agent shall have received security or an indemnity
reasonably satisfactory to the Escrow Agent sufficient to hold the Escrow Agent harmless from and
against any and all loss, liability or expense which the Escrow Agent may incur by reason of the
Escrow Agents acting. The Escrow Agent may in addition elect at its sole discretion to
commence an interpleader action or seek other judicial relief or order as the Escrow Agent may deem
Section 12. Dispute
Except as otherwise
provided in this Agreement and except for ancillary measures in aid of arbitration and for
proceedings to obtain provisional remedies and interim relief, including, without limitation,
injunctive relief, any controversy, dispute or claim between the parties hereto arising out of or in
connection with or relating to this Agreement shall be finally settled by arbitration conducted
expeditiously in accordance with the Commercial Arbitration Rules then in force of the American
Arbitration Association. The situs for any arbitration shall be New York
Section 13. Extraordinary
(a) It is understood
that fees and usual charges agreed upon for the Escrow Agents services shall be considered
compensation for its services as contemplated by this Agreement, and if the Escrow Agent renders any
service not provided for in this Agreement, or if there is any assignment of any interest in the
subject matter of this Agreement by the Company, or if there is any modification of this Agreement,
or if any controversy arises under this Agreement, or if the Escrow Agent is made a party to any
litigation pertaining to this Agreement or the subject matter of this Agreement, then the Escrow
Agent shall be reasonably compensated for those extraordinary services and shall be reimbursed for
all costs and expenses occasioned by such services, controversy or litigation and the Company hereby
promises to pay such sums upon demand.
(b) The provisions of
this Sections 13 shall survive termination of this Agreement and/or the resignation or removal of
the Escrow Agent.
Section 14. Governing Law;
This agreement shall be
governed by and construed in accordance with the laws of the State of New York
without reference to
its provisions respecting conflicts of laws. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one and the same
instrument. Each of the Parties hereby waives the right to trial by jury and to assert counterclaims
in any such proceedings. Each Party waives personal service of process and consents to service of
process by certified or registered mail, return receipt requested, directed to it at the address
last specified for notices hereunder, and such service shall be deemed completed ten (10) calendar
days after the same is so mailed.
Section 15. Maintenance of
The Escrow Agent shall
maintain accurate records of all transactions hereunder. Within three (3) business days after the
termination of this Agreement, and as may from time to time be reasonably requested by the Company
before such termination, the Escrow Agent shall provide the Company with a copy of such records,
certified by the Escrow Agent to be a complete and accurate account of all transactions hereunder.
The authorized representatives of the Company shall also have access to the Escrow Agents
books and records to the extent relating to its duties hereunder, during normal business hours and
upon reasonable notice to the Escrow Agent.
(a) Nothing in this
Agreement is intended or shall confer upon anyone other than the parties any legal or equitable
right, remedy or claim.
(b) The invalidity of
any portion of this Agreement shall not affect the validity of the remainder hereof.
(c) This Agreement is
the final integration of the agreement of the parties with respect to the matters covered by it and
supersedes any prior understanding or agreement, oral or written, with respect thereto.
(d) The rights and
obligations of each party hereto may not be assigned or delegated to any other person without the
written consent of the other party hereto. Subject to the foregoing, the terms and provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
(e) No printed or other
material in any language which mentions The Bank of New York by name or the rights,
powers, or duties of the Escrow Agent under this Agreement shall be issued by any party hereto, or
on such partys behalf, without the prior written consent of Escrow Agent; provided,
however, that this paragraph shall not apply to the Companys preliminary or definitive
prospectus or any pre- or post-effective amendments thereto.
Agent shall not incur any liability for not performing any act or fulfilling any
duty, obligation or responsibility hereunder by reason of any occurrence beyond the
control of Escrow Agent (including but not limited to any act or provision of any
present or future law or regulation or governmental authority, any act of God or war,
or the unavailability of the Federal Reserve Bank wire or telex or other wire or
(g) The section headings
in this Agreement are for the convenience of the parties only, and in no way alter, modify, amend,
limit or restrict the contractual obligations of the parties hereto.
||/s/ John Pritchard
||Name: John Pritchard
THE BANK OF NEW YORK
as Escrow Agent
||/s/ Odell Romeo
||Name: Odell Romeo
Title: Assistant Vice President