EXHIBIT 10.32
PLEDGE AND ESCROW AGREEMENT
THIS PLEDGE AND ESCROW AGREEMENT (the "Agreement") is made
and entered into as of March 30, 2005 (the "Effective Date") by and among
CORNELL CAPITAL PARTNERS, LP, HIGHGATE HOUSE FUNDS,
LTD. (collectively, the "Pledgee"), ACCESS PHARMACEUTICALS,
INC., a corporation organized and existing under the laws of the State of
Delaware (the "Pledgor"), and XXXXX XXXXXXXX, ESQ., as escrow
agent ("Escrow Agent").
RECITALS:
WHEREAS, in order to secure the Company's obligations under the
Securities Purchase Agreement, the Convertible Debentures, the Security
Agreement, this Agreement and the Escrow Agreement all of even date
herewith (collectively referred to as the "Transaction Documents"), the
Pledgor has agreed to pledge to the Pledgee up to Two Million Eight
Hundred Ninety Thousand Seven Hundred Twenty Three (2,891,723) shares
(the "Pledged Shares") of the Pledgor's common stock.
WHEREAS, subject to the terms of the Convertible Debentures, the
Pledgee has the right to convert at any time until payment in full, the
Convertible Debentures into an aggregate of up to 658,250 shares of the
Pledgor's common stock (the "Conversion Shares").
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, warranties, and representations herein contained, and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
TERMS AND CONDITIONS
1. Pledge and Transfer of Pledged Shares.
1.1. The Pledgor hereby grants to Pledgee a security interest in all Pledged
Shares as security for Pledgor's obligations under the Convertible
Debentures. Simultaneously with the execution of the Transaction
Documents, the Pledgor shall deliver to the Escrow Agent stock certificates
representing the Pledged Shares, together with duly executed stock powers
or other appropriate transfer documents executed in blank by the Pledgor
(the "Transfer Documents"), and such stock certificates and Transfer
Documents shall be held by the Escrow Agent until the full payment of all
amounts due to the Pledgee under the Convertible Debentures and through
repayment in accordance with the terms of the Convertible Debentures, or
the termination or expiration of this Agreement.
1.2. Adjustment to Pledged Shares. Upon each conversion by the Pledgee
into Conversion Shares, the Pledgor shall provide written notice to the
Escrow Agent, with a copy to the Pledgee, of the number of Conversion
Shares issued to the Pledgee pursuant to such conversion and the number
of Pledged Shares pursuant to this agreement shall be reduced, share for
share, by the number of Conversion Shares issued to the Pledgee (if
required by the applicable rules of the American Stock Exchange or the
Nasdaq).
2. Rights Relating to Pledged Shares. Prior to the occurrence of an Event
of Default (as defined herein), the Pledged Shares shall not be, or be
deemed to be, issued or outstanding shares of the Pledgor and neither the
Pledgee nor any other person shall be entitled to vote, receive dividends and
other distributions thereon, and enjoy all other rights and privileges incident
to the ownership of the number of Pledged Shares actually released from
escrow in accordance with Section 5.1.
3. Release of Pledged Shares from Pledge. Upon the payment of all
amounts due to the Pledgee under the Convertible Debentures by repayment
or conversion in accordance with the terms of the Convertible Debenture,
the parties hereto shall notify the Escrow Agent to such effect in writing.
Upon receipt of such written notice for payment of the amounts due to the
Pledgee under the Convertible Debentures, the Escrow Agent shall return
to the Pledgor the Transfer Documents and the certificates representing the
Pledged Shares, (collectively the "Pledged Materials), whereupon any and
all rights of Pledgee in the Pledged Materials shall be terminated.
Notwithstanding anything to the contrary contained herein, upon full
payment of all amounts due to the Pledgee under the Convertible
Debentures, by repayment or conversion in accordance with the terms of
the Convertible Debenture, this Agreement and Pledgee's security interest
and rights in and to the Pledged Shares shall terminate.
4. Event of Default. An "Event of Default" shall be deemed to have
occurred under this Agreement upon an Event of Default under the
Transaction Documents.
5. Remedies.
5.1. Upon the occurrence of an Event of Default, the Pledgee shall provide
written notice of such Default (the "Default Notice") to the Escrow Agent,
with a copy to the Pledgor. As soon as practicable after receipt of the
Default Notice, the Escrow Agent shall deliver to Pledgee the Pledged
Materials held by the Escrow Agent hereunder, whereupon Pledgee may
sell the number of Pledged Shares of which the proceeds from such sales,
net of any selling commissions, are sufficient to repay all amounts owed to
the Pledgee including, without limitation, outstanding principal, interest,
legal fees, and any other amounts owed to the Pledgee and exercise all
other rights and remedies of a secured party with respect to such property
as may be available under the Uniform Commercial Code as in effect in the
State of New Jersey. To the extent that the net proceeds received by the
Pledgee are less than the amounts it is owed, the Pledgee shall be entitled
to a deficiency judgment for such amount and shall be entitled to proceed
against any other collateral. The Pledgee shall have the absolute right to
sell or dispose of the Pledged Shares in any manner it sees fit and shall
have no liability to the Pledgor or any other party for selling or disposing
of such Pledged Shares even if other methods of sales or dispositions would
or allegedly would result in greater proceeds than the method actually used.
The Escrow Agent shall have the absolute right to disburse the Pledged
Shares to the Pledgee in batches not to exceed 9.9% of the outstanding
capital of the Company. The Pledgee shall return any Pledged Shares
released to it and remaining after the Pledgee has applied the net proceeds
to all amounts owed to the Pledgee. The Pledgee shall be entitled to vote,
receive dividends and other distributions thereon, and enjoy all other rights
and privileges incident to the ownership of the number of Pledged Shares
actually released from escrow in accordance with this Section 5.1
5.2. Demand Registration Rights. In addition to all other remedies
available to the Pledgee, upon an Event of Default, the Pledgor shall
promptly, but in no event more than thirty (30) days after the date of the
Default Notice, file a registration statement to register with the Securities
and Exchange Commission the Pledged Shares for the resale by the
Pledgee. The Pledgor shall cause the registration statement to remain in
effect until all of the Pledged Shares have been sold by the Pledgee or until
they are eligible for sale pursuant to Rule 144(k).
6. Concerning the Escrow Agent.
6.1. The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein and no implied duties or obligations shall be read
into this Agreement against the Escrow Agent.
6.2. The Escrow Agent may act in reliance upon any writing or instrument
or signature which it, in good faith, believes to be genuine, may assume the
validity and accuracy of any statement or assertion contained in such a
writing or instrument, and may assume that any person purporting to give
any writing, notice, advice or instructions in connection with the provisions
hereof has been duly authorized to do so. The Escrow Agent shall not be
liable in any manner for the sufficiency or correctness as to form, manner,
and execution, or validity of any instrument deposited in this escrow, nor
as to the identity, authority, or right of any person executing the same; and
its duties hereunder shall be limited to the safekeeping of such certificates,
monies, instruments, or other document received by it as such escrow
holder, and for the disposition of the same in accordance with the written
instruments accepted by it in the escrow.
6.3. Pledgee and the Pledgor hereby agree, to defend and indemnify the
Escrow Agent and hold it harmless from any and all claims, liabilities,
losses, actions, suits, or proceedings at law or in equity, or any other
expenses, fees, or charges of any character or nature which it may incur or
with which it may be threatened by reason of its acting as Escrow Agent
under this Agreement; and in connection therewith, to indemnify the
Escrow Agent against any and all expenses, including attorneys' fees and
costs of defending any action, suit, or proceeding or resisting any claim
(and any costs incurred by the Escrow Agent pursuant to Sections 6.4 or
6.5 hereof). The Escrow Agent shall be vested with a lien on all property
deposited hereunder, for indemnification of attorneys' fees and court costs
regarding any suit, proceeding or otherwise, or any other expenses, fees,
or charges of any character or nature, which may be incurred by the
Escrow Agent by reason of disputes arising between the makers of this
escrow as to the correct interpretation of this Agreement and instructions
given to the Escrow Agent hereunder, or otherwise, with the right of the
Escrow Agent, regardless of the instructions aforesaid, to hold said property
until and unless said additional expenses, fees, and charges shall be fully
paid. Any fees and costs charged by the Escrow Agent for serving
hereunder shall be paid by the Pledgor.
6.4. If any of the parties shall be in disagreement about the interpretation
of this Agreement, or about the rights and obligations, or the propriety of
any action contemplated by the Escrow Agent hereunder, the Escrow Agent
may, at its sole discretion deposit the Pledged Materials with the Clerk of
the United States District Court of New Jersey, sitting in Newark, New
Jersey, and, upon notifying all parties concerned of such action, all liability
on the part of the Escrow Agent shall fully cease and terminate. The
Escrow Agent shall be indemnified by the Pledgor, the Company and
Pledgee for all costs, including reasonable attorneys' fees in connection
with the aforesaid proceeding, and shall be fully protected in suspending all
or a part of its activities under this Agreement until a final decision or other
settlement in the proceeding is received.
6.5. The Escrow Agent may consult with counsel of its own choice (and the
costs of such counsel shall be paid by the Pledgor and Pledgee) and shall
have full and complete authorization and protection for any action taken or
suffered by it hereunder in good faith and in accordance with the opinion
of such counsel. The Escrow Agent shall not be liable for any mistakes of
fact or error of judgment, or for any actions or omissions of any kind,
unless caused by its willful misconduct or gross negligence.
6.6. The Escrow Agent may resign upon ten (10) days' written notice to the
parties in this Agreement. If a successor Escrow Agent is not appointed
within this ten (10) day period, the Escrow Agent may petition a court of
competent jurisdiction to name a successor.
6.7 Conflict Waiver. The Pledgor hereby acknowledges that the Escrow
Agent is general counsel to the Pledgee, a partner in the general partner of
the Pledgee, and counsel to the Pledgee in connection with the transactions
contemplated and referred herein. The Pledgor agrees that in the event of
any dispute arising in connection with this Agreement or otherwise in
connection with any transaction or agreement contemplated and referred
herein, the Escrow Agent shall be permitted to continue to represent the
Pledgee and the Pledgor will not seek to disqualify such counsel and waives
any objection Pledgor might have with respect to the Escrow Agent acting
as the Escrow Agent pursuant to this Agreement.
6.8 Notices. Unless otherwise provided herein, all demands, notices,
consents, service of process, requests and other communications hereunder
shall be in writing and shall be delivered in person or by overnight courier
service, or mailed by certified mail, return receipt requested, addressed:
If to the Pledgor, to: Access Pharmaceuticals, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx XxXxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Pledgee: Cornell Capital Partners LP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to: Xxxx Xxxxx, Esq.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any such notice shall be effective (a) when delivered, if delivered by hand
delivery or overnight courier service, or (b) five (5) days after deposit in
the United States mail, as applicable.
7. Binding Effect. All of the covenants and obligations contained herein
shall be binding upon and shall inure to the benefit of the respective parties,
their successors and assigns.
8. Governing Law; Venue; Service of Process. The validity, interpretation
and performance of this Agreement shall be determined in accordance with
the laws of the State of New Jersey applicable to contracts made and to be
performed wholly within that state except to the extent that Federal law
applies. The parties hereto agree that any disputes, claims, disagreements,
lawsuits, actions or controversies of any type or nature whatsoever that,
directly or indirectly, arise from or relate to this Agreement, including,
without limitation, claims relating to the inducement, construction,
performance or termination of this Agreement, shall be brought in the state
superior courts located in Xxxxxx County, New Jersey or Federal district
courts located in Newark, New Jersey, and the parties hereto agree not to
challenge the selection of that venue in any such proceeding for any reason,
including, without limitation, on the grounds that such venue is an
inconvenient forum. The parties hereto specifically agree that service of
process may be made, and such service of process shall be effective if
made, pursuant to Section 8 hereto.
9. Enforcement Costs. If any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provisions of
this Agreement, the successful or prevailing party or parties shall be entitled
to recover reasonable attorneys' fees, court costs and all expenses even if
not taxable as court costs (including, without limitation, all such fees, costs
and expenses incident to appeals), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may be entitled.
10. Remedies Cumulative. No remedy herein conferred upon any party is
intended to be exclusive of any other remedy, and each and every such
remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law, in equity, by statute,
or otherwise. No single or partial exercise by any party of any right,
power or remedy hereunder shall preclude any other or further exercise
thereof.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument.
12. No Penalties. No provision of this Agreement is to be interpreted as
a penalty upon any party to this Agreement.
13. JURY TRIAL. EACH OF THE PLEDGEE AND THE PLEDGOR
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES THE RIGHT WHICH IT MAY HAVE TO A TRIAL BY JURY
OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN ANY WAY
CONNECTED WITH THE DEALINGS BETWEEN PLEDGEE AND
PLEDGOR, THIS PLEDGE AND ESCROW AGREEMENT OR ANY
DOCUMENT EXECUTED IN CONNECTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY
HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT,
EQUITY OR OTHERWISE.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Pledge and Escrow Agreement as of the date first above written.
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Portfolio Manager
HIGHGATE HOUSE FUNDS, LTD
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Portfolio Manager
ACCESS PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: President and Chief Executive Officer
ESCROW AGENT
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx, Esq.
