EXHIBIT 4.05
ESCROW SHARES ESCROW AGREEMENT
THIS ESCROW SHARES ESCROW AGREEMENT (the "AGREEMENT") is made and entered
into as of December 14, 2005 (the "EFFECTIVE DATE") by and among HIGHGATE HOUSE
FUNDS, LTD. (the "HIGHGATE"), NANOSCIENCE TECHNOLOGIES, INC., a corporation
organized and existing under the laws of the State of Nevada (the "COMPANY"),
and GOTTBETTER & PARTNERS, LLP, as escrow agent ("ESCROW AGENT").
RECITALS:
WHEREAS, the Company and Highgate have entered into a Securities Purchase
Agreement (the "SECURITIES PURCHASE AGREEMENT"), dated as of the date hereof,
pursuant to which the Company proposes to sell secured convertible debentures
(the "CONVERTIBLE DEBENTURES") which shall be convertible into the Company's
Common Stock, par value $0.001 per share (the "COMMON STOCK") and in connection
therewith the Company has agreed to issue certain of its warrants (the
"WARRANTS"; and, together with the Convertible Debentures, the "SECURITIES");
WHEREAS, the Securities Purchase Agreement provides that Highgate shall
deposit the Escrow Shares (as defined in the Securities Purchase Agreement) in a
segregated escrow account to be held by Escrow Agent in order to effectuate the
conversions of the Convertible Debentures and the exercise of the Warrant;
WHEREAS, the Escrow Agent is willing to act as escrow agent pursuant to
the terms of this Agreement with respect to the Escrow Shares; and
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. PROCEDURE FOR ESCROW. The procedures of the escrow shall be governed by
the provisions of Exhibit F of the Securities Purchase Agreement and the
Convertible Debentures, all of which are incorporated herein by reference as if
set forth fully herein.
2. TERMS OF ESCROW. The terms of the escrow shall be governed by Article 6
of the Securities Purchase Agreement and the Convertible Debenture, all of which
are incorporated herein by reference as if set forth fully herein.
3. CONCERNING THE ESCROW AGENT.
3.1. 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.
3.2. 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.
3.3. Highgate and the Company 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
Company.
3.4. 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 Escrow Shares with the Clerk of
the United States District Court of New York, sitting in Manhattan, New York,
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 Company and Highgate 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.
3.5. The Escrow Agent may consult with counsel of its own choice
(and the reasonable costs of such counsel shall be paid by the Company and
Highgate) 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.
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3.6. 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.
3.7. CONFLICT WAIVER. The Company hereby acknowledges that the
Escrow Agent is general counsel to Highgate, a partner in the general partner of
Highgate, and counsel to Highgate in connection with the transactions
contemplated and referred herein. The Company 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 Highgate and the Company will
not seek to disqualify such counsel and waives any objection Company might have
with respect to the Escrow Agent acting as the Escrow Agent pursuant to this
Agreement.
3.8. 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 Company, to: Nanoscience Technologies, Inc.
00 Xxxxxxxxxxx Xx., Xxxxx 0000 #00
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 212-332-3401
With a copy to: Reitler Xxxxx & Xxxxxxxxxx LLC
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Highgate: Highgate House Funds, Ltd.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000 0000
With copy to: Xxxxx Xxxxxxx, Esq.
Gottbetter & Partners, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000 0000
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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.
4. 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.
5. GOVERNING LAW; VENUE; SERVICE OF PROCESS. The parties hereto
acknowledge that the transactions contemplated by this Agreement and the
exhibits hereto bear a reasonable relation to the State of New York. The parties
hereto agree that the internal laws of the State of New York shall govern this
Agreement and the exhibits hereto, including, but not limited to, all issues
related to usury. Any action to enforce the terms of this Agreement or any of
its exhibits shall be brought exclusively in the state and/or federal courts
situated in the County and State of New York. Service of process in any action
by Highgate to enforce the terms of this Agreement may be made by serving a copy
of the summons and complaint, in addition to any other relevant documents, by
commercial overnight courier to the Company at its principal address set forth
in this Agreement.
6. 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.
7. 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.
8. 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.
9. NO PENALTIES. No provision of this Agreement is to be interpreted as a
penalty upon any party to this Agreement.
10. JURY TRIAL. EACH OF HIGHGATE AND THE COMPANY 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 HIGHGATE AND
COMPANY, THIS ESCROW SHARES 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
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HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Escrow
Shares Escrow Agreement as of the date first above written.
HIGHGATE HOUSE FUNDS, LTD
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx, Esq.
Its: Portfolio Manager
NANOSCIENCE TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Secretary, Chief Operating Officer
GOTTBETTER & PARTNERS, LLP
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Partner
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