Exhibit 4.3
ESCROW AGREEMENT
Dated as of December 11, 2001
Xxxxx X. Xxxxxxxx Esq.
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Dear Xx. Xxxxxxxx:
As escrow agent for Implant Sciences Corporation (IMX) and Generation
Capital Associates (GCA), and other purchasers signatory hereto (Purchaser(s))
pursuant to a Financing Terms Agreement dated as of December 11, 2001
(Agreement), a copy of which is attached hereto, you (Escrow Agent) are hereby
authorized and directed to hold and disburse the Escrow Certificates, IMX
Warrants , IMX Warrants Shares and Purchase Price funds delivered to the Escrow
Agent pursuant to the terms of the Agreement (Escrow Property as follows):
1. The Escrow Agent's duties hereunder may be altered, amended, modified or
revoked only by a writing signed by IMX, Purchaser(s), and the Escrow Agent.
2. The Escrow Agent shall be obligated only for the performance of such
duties as are specifically set forth herein and may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed by
the Escrow Agent to be genuine and to have been signed or presented by the
proper party or parties. The Escrow Agent shall not be personally liable for any
act the Escrow Agent may do or omit to do hereunder as Escrow Agent while acting
in good faith, except for fraud, willful misconduct, or gross negligence. Any
act done or omitted by the Escrow Agent pursuant to the advice of the Escrow
Agent's attorneys-at-law shall be evidence of such good faith.
3. The Escrow Agent is hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law and is hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case the Escrow Agent obeys or complies with any such order, judgment
or decree, the Escrow Agent shall not be liable to any of the parties hereto or
to any other person, firm or corporation by reason of such decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
4. The Escrow Agent shall not be liable in any respect on account of the
identity, authorities or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement, these Joint Escrow Instructions,
or any documents or papers deposited or called for hereunder.
5. The Escrow Agent shall be entitled to employ such legal counsel and
other experts as the Escrow Agent may deem necessary properly to advise the
Escrow Agent in connection with the Escrow Agent's duties hereunder, may rely
upon the advice of such counsel, and may pay such counsel reasonable
compensation therefore. The Escrow Agent has acted as legal counsel for GCA in
connection with the Agreement and may continue to act as legal counsel for GCA,
from time to time, notwithstanding its duties as Escrow Agent hereunder.
Purchaser(s) and IMX hereby waive any and all claims and allegations of conflict
in relation to the Escrow Agent's continued representation of GCA as its
attorney.
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6. The Escrow Agent's responsibilities as Escrow Agent hereunder shall
terminate if the Escrow Agent shall resign by written notice to the other
parties to the AgreementIn the event of any such resignation, IMX and
Purchaser(s) shall appoint a successor Escrow Agent.
7. If the Escrow Agent reasonably requires other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
8. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the Escrow Property
held by the Escrow Agent hereunder, the Escrow Agent is authorized and directed
in the Escrow Agent's sole discretion (i) to retain in the Escrow Agent's
possession without liability to anyone, all or any part of the said Escrow
Property until such disputes shall have been settled either by mutual written
agreement of the parties concerned or by a final order, decree or judgment of a
court of competent jurisdiction after the time for appeal has expired and no
appeal has been perfected, but the Escrow Agent shall be under no duty
whatsoever to institute or defend any such proceedings or (ii) to deliver the
Escrow Property held by the Escrow Agent hereunder to a state or federal court
having competent subject matter jurisdiction in accordance with the applicable
procedure therefore.
9. IMX and Purchaser(s) agree jointly and severally to indemnify and hold
harmless the Escrow Agent from any and all claims, liabilities, costs or
expenses in any way arising from or relating to the duties or performance of the
Escrow Agent hereunder other than any such claim, liability, cost or expense to
the extent the same shall have been determined by final, unappealable judgment
of a court of competent jurisdiction to have resulted from fraud, gross
negligence or willful misconduct of the Escrow Agent.
10. In the event of any action or proceeding brought by any party against
another under these Joint Escrow Instructions and/or the Agreement, the
prevailing party or parties shall be entitled to recover all out-of-pocket
expenses actually incurred through the date of final collection, including
without limitation, all attorneys' fees.
11. Any notice required or permitted hereunder shall be given in writing
(unless otherwise specified herein) and shall be deemed effectively given upon
personal delivery, overnight courier, facsimile or three business days after
deposit in the United States Postal Service, by registered or certified mail
with postage and fees prepaid, addressed to each of the other parties thereunto
entitled at the addresses listed below their signature, or at such other
addresses as a party may designate by ten days advance written notice to each of
the other parties hereto.
12. This instrument shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and permitted assigns and shall
be governed by the laws of the State of Georgia without giving effect to
principles governing the conflicts of laws. A facsimile transmission of these
instructions signed by the Escrow Agent shall be legal and binding on all
parties hereto.
13. IMX and Purchaser(s) hereby consent to the jurisdiction of any court of
the State of Georgia and of any federal court located in Georgia. IMX and
Purchaser(s) waive personal service of any summons, complaint or other process
in connection with any such action proceeding and agrees that service thereof
may be made, as Escrow Agent may elect, by certified or registered mail and/or
overnight courier directed to IMX and/or Purchaser(s) at the address set forth
on the signature page hereof, or, in the alternative, in any other form or
manner permitted by law.
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14. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings provided in the Agreement.
Implant Sciences Corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President, CEO & Chairman
Implant Sciences Corporation
000 Xxxxxxx Xxxx, #0
Xxxxxxxxx, XX 00000
Tax I.D. 00-0000000
Tel: 781/246-070
Fax: 781/000-0000
Purchaser(s):
Generation Capital Associates
By: /s/ Latrobe Xxxxxxx
---------------------------------------------------
Latrobe Xxxxxxx, Director of Operations
Generation Capital Associates
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Tax I.D. 00-0000000
Tel: 404/000-0000
Fax: 404/000-0000
Agreed to and accepted:
Escrow Agent
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------------------------
Xxxxx X. Xxxxxxxx
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Tel: 404/000-0000
Fax: 404/000-0000
Email: xxxxxxxxx@xxxxxxx.xxx
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