Exhibit 10.3
SHARE ESCROW AGREEMENT
This Agreement is dated as of the [ ] day of [ ], 2005 among Xxxxxx
Xxxxxxxx (the "Guarantor"), [ ] (each a "Purchaser" and collectively
"Purchasers"), and Grushko & Xxxxxxx, P.C. (the "Escrow Agent"):
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Purchasers and Guarantor have or will enter into an agreement
whereunder Purchasers shall purchase on [ ], 2005, in the aggregage,
$[ ] of Stated Value of Class A Preferred Stock (the "Preferred Stock"), of
Novelos Therapeutics, Inc., a Delaware corporation ("Novelos") convertible into
Common Stock of Novelos; and
WHEREAS, it is beneficial to Guarantor that Purchaser acquire the Preferred
Stock and as an inducement to Purchaser to acquire the Preferred Stock,
Guarantor is assuring that Purchaser will receive a guaranteed return of not
less than twenty percent (20%) per year, compounded annually on the purchase
price of the Preferred Stock, calculated in accordance with the Escrow Demand
annexed hereto and incorporated herein by reference ("Guaranteed Return"); and
WHEREAS, the Purchasers require the Guarantor to deliver [ ] shares of
restricted, legended common stock together with medallion signature guaranteed
stock powers (collectively "Escrow Shares") to be held in escrow by the Escrow
Agent with such Escrow Shares serving as the source of payment of the Guaranteed
Return, and which will be released by the Escrow Agent in accordance with the
terms and conditions of this Agreement; and
WHEREAS, the Escrow Agent is willing to serve as escrow agent pursuant to
the terms and conditions of this Agreement;
NOW THEREFORE, the parties for the mutual promises herein recited and other
good and valuable consideration receipt of which is acknowledged, agree as
follows:
ARTICLE I
INTERPRETATION
1.1. Definitions. Whenever used in this Agreement, the following terms
shall have the following respective meanings:
(a) "Agreement" means this Agreement and all amendments made hereto
and thereto by written agreement between the parties;
(b) "Escrow Share" means the $0.00001 par value Common stock issuable
by Novelos upon conversion of the Preferred Stock.
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(c) "End Date" means the first anniversary of the date of this
Agreement, or if not a day the New York Stock Exchange is open for trading, then
the first such trading day thereafter.
(d) "Escrow Demand" has the meaning set forth above.
(e) "Guaranteed Return" has the meaning set forth above.
(f) "Preferred Stock" has the meaning set forth above.
1.2. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the Preferred Stock and Escrow Share
and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties. There are no warranties,
representations and other agreements made by the parties in connection with the
subject matter hereof except as specifically set forth in this Agreement.
1.3. Extended Meanings. In this Agreement words importing the singular
number include the plural and vice versa; words importing the masculine gender
include the feminine and neuter genders. The word "person" includes an
individual, body corporate, partnership, trustee or trust or unincorporated
association, executor, administrator or legal representative.
1.4. Waivers and Amendments. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by all parties, or, in the
case of a waiver, by the party waiving compliance. Except as expressly stated
herein, no delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any right, power or privilege hereunder preclude any
other or future exercise of any other right, power or privilege hereunder.
1.5. Headings. The division of this Agreement into articles, sections,
subsections and paragraphs and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation of this
Agreement.
1.6. Law Governing this Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of laws. Subject to Section 4.2, any action brought by
either party against the other concerning the transactions contemplated by this
Agreement shall be brought only in the state courts of New York or in the
federal courts located in the state of New York. All parties and the individuals
executing this Agreement and other agreements on behalf of the parties agree to
submit to the jurisdiction of such courts and waive trial by jury. The
prevailing party (which shall be the party which receives an award most closely
resembling the remedy or action sought) shall be entitled to recover from the
other party its reasonable attorney's fees and costs. In the event that any
provision of this Agreement or any other agreement delivered in connection
herewith is invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any such provision which may prove invalid or unenforceable under
any law shall not affect the validity or enforceability of any other provision
of any agreement.
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ARTICLE II
DELIVERIES TO THE ESCROW AGENT
2.1. Delivery of Preferred Stock to Escrow Agent. On or before the date of
this Agreement, the Guarantor shall deliver the Escrow Shares to the Escrow
Agent.
2.2 Intention to Create Escrow Over Preferred Stock and Escrow Shares. The
Guarantor and Purchaser intend that the Escrow Shares shall be held in escrow by
the Escrow Agent pursuant to this Agreement for their benefit as set forth
herein.
2.4. Escrow Agent to Deliver Escrow Shares. The Escrow Shares will be held
on behalf of Purchasers in proportion to their relative amounts of Preferred
Stock purchased from Novelos on September 30, 2005. The Escrow Agent shall hold
and release the Escrow Shares only in accordance with the terms and conditions
of this Agreement.
ARTICLE III
RELEASE OF PREFERRED STOCK AND ESCROW SHARE
3.1. Release of Escrow. Subject to the provisions of Section 4.2, the
Escrow Agent shall release the Escrow Shares as follows:
(a) Upon receipt by the Escrow Agent of an Escrow Demand from a
Purchaser in the form annexed hereto as Exhibit A, together with supporting
calculations, and attachments referred to in the Escrow Demand, the Escrow Agent
will deliver copies of the Escrow Demand and attachments to Guarantor, and not
sooner than two business days nor later than four business days thereafter,
deliver or cause to be delivered to Purchasers the number of Escrow Shares
required to be delivered pursuant to the Escrow Demand. Escrow Agent is
authorized to deliver any share certificate representing the Escrow Shares, to
Novelos transfer agent to be reissued in the names of the Purchasers the
proportionate shares of the Purchasers and as necessary to satisfy an Escrow
Demand. Upon receipt of the reissued Escrow Shares, the Escrow Agent will
deliver the such reissued Escrow Shares to the Purchasers.
(b) All deliveries to the Guarantor shall be made to the address set
forth in Section 5.2.
(c) All deliveries to the Purchaser shall be made to the address set
forth in Section 5.2 of this Agreement.
(d) Purchasers may give Escrow Demands until they no longer own any
Preferred Stock. Any Escrow Shares not required to satisfy Escrow Demands and
still held by Escrow Agent after any Purchasers no longer holds any Preferred
Stock will be expeditiously delivered to Guarantor. Escrow Shares not required
for a Purchaser will be held proportionately for the other Purchasers until no
Purchaser holds Preferred Stock.
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(e) Upon receipt by the Escrow Agent of joint written instructions
("Joint Instructions") signed by the Purchaser and the Guarantor, it shall
deliver the Escrow Shares in accordance with the terms of the Joint
Instructions.
(f) Upon receipt by the Escrow Agent of a final and non-appealable
judgment, order, decree or award of a court of competent jurisdiction (a "Court
Order"), the Escrow Agent shall deliver a notice of receipt thereof to the
Purchaser and the Guarantor (the "Notice of Receipt") and the Escrow Shares in
accordance with the Court Order. Any Court Order shall be accompanied by an
opinion of counsel for the party presenting the Court Order to the Escrow Agent
(which opinion shall be satisfactory to the Escrow Agent) to the effect that the
court issuing the Court Order has competent jurisdiction and that the Court
Order is final and non-appealable.
3.2. Acknowledgement of Purchaser and Guarantor; Disputes. The Purchaser
and the Guarantor acknowledge that the only terms and conditions upon which the
Escrow Shares are to be released are set forth in Sections 3 and 4 of this
Agreement. The Purchaser and the Guarantor reaffirm their agreement to abide by
the terms and conditions of this Agreement with respect to the release of the
Escrow Shares. Any dispute with respect to the release of the Escrow Shares
shall be resolved pursuant to Section 4.2 or by agreement between the Purchaser
and the Guarantor.
ARTICLE IV
CONCERNING THE ESCROW AGENT
4.1. Duties and Responsibilities of the Escrow Agent. The Escrow Agent's
duties and responsibilities shall be subject to the following terms and
conditions:
(a) The Guarantor and Purchaser acknowledge and agree that the Escrow
Agent (i) shall not be responsible for or bound by, and shall not be required to
inquire into whether either the Guarantor or Purchaser is entitled to receipt of
the Escrow Shares pursuant to, any other agreement or otherwise; (ii) shall be
obligated only for the performance of such duties as are specifically assumed by
the Escrow Agent pursuant to this Agreement; (iii) may rely on and shall be
protected in acting or refraining from acting upon any written notice,
instruction, instrument, statement, request or document furnished to it
hereunder and believed by the Escrow Agent in good faith to be genuine and to
have been signed or presented by the proper person or party, without being
required to determine the authenticity or correctness of any fact stated therein
or the propriety or validity or the service thereof; (iv) may assume that any
person purporting to give notice or make any statement or execute any document
in connection with the provisions hereof has been duly authorized to do so; (v)
shall not be under any duty to give the property held by Escrow Agent hereunder
any greater degree of care than Escrow Agent gives its own similar property; and
(vi) may consult counsel satisfactory to Escrow Agent, the opinion of such
counsel to be full and complete authorization and protection in respect of any
action taken, suffered or omitted by Escrow Agent hereunder in good faith and in
accordance with the opinion of such counsel.
(b) The Guarantor and Purchaser acknowledge that the Escrow Agent is
acting solely as a stakeholder at their request and that the Escrow Agent shall
not be liable for any action taken by Escrow Agent in good faith and believed by
Escrow Agent to be authorized or within the rights or powers conferred upon
Escrow Agent by this Agreement, except in the case of gross negligence or
willful misconduct. The Guarantor and Purchaser, jointly and severally, agree to
indemnify and hold
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harmless the Escrow Agent and any of Escrow Agent's partners, employees, agents
and representatives for any action taken or omitted to be taken by Escrow Agent
or any of them hereunder, including the fees of outside counsel and other costs
and expenses of defending itself against any claim or liability under this
Agreement, except in the case of gross negligence or willful misconduct on
Escrow Agent's part committed in its capacity as Escrow Agent under this
Agreement. The Escrow Agent shall owe a duty only to the Guarantor and Purchaser
under this Agreement and to no other person.
(c) The Guarantor and Purchaser jointly and severally agree to
reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including
outside counsel fees, to the extent authorized hereunder) incurred in connection
with the performance of its duties and responsibilities hereunder.
(d) The Escrow Agent may at any time resign as Escrow Agent hereunder
by giving five (5) days prior written notice of resignation to the Guarantor and
the Purchaser. Prior to the effective date of the resignation as specified in
such notice, the Guarantor and Purchaser will issue to the Escrow Agent a Joint
Instruction authorizing delivery of the Escrow Shares to a substitute Escrow
Agent selected by the Guarantor and Purchaser. If no successor Escrow Agent is
named by the Guarantor and Purchaser, the Escrow Agent may apply to a court of
competent jurisdiction in the State of New York for appointment of a successor
Escrow Agent, and to deposit the Escrow Shares with the clerk of any such court.
(e) The Escrow Agent does not have and will not have any interest in
the Escrow Shares, but is serving only as escrow agent, having only possession
thereof.
(f) This Agreement sets forth exclusively the duties of the Escrow
Agent with respect to any and all matters pertinent thereto and no implied
duties or obligations shall be read into this Agreement.
(g) The Escrow Agent shall be permitted to act as counsel for the
Purchaser in any dispute as to the disposition of any Escrow Shares in any other
dispute between the Guarantor and Purchaser, whether or not the Escrow Agent is
then holding any Escrow Shares and continues to act as the Escrow Agent
hereunder.
(h) The provisions of this Section 4.1 shall survive the resignation
of the Escrow Agent or the termination of this Agreement.
4.2. Dispute Resolution: Judgments. Resolution of disputes arising under
this Agreement shall be subject to the following terms and conditions:
(a) If any dispute shall arise with respect to the delivery,
ownership, right of possession or disposition of the Escrow Shares, or if the
Escrow Agent shall in good faith be uncertain as to its duties or rights
hereunder, the Escrow Agent shall be authorized, without liability to anyone, to
(i) refrain from taking any action other than to continue to hold the Escrow
Shares pending receipt of a Joint Instruction from the Guarantor and Purchaser,
or (ii) deposit the Escrow Shares with any court of competent jurisdiction in
the State of New York, in which event the Escrow Agent shall give written notice
thereof to the Guarantor and the Purchaser and shall thereupon be relieved and
discharged from all further obligations pursuant to this Agreement. The Escrow
Agent may, but shall be under no duty to,
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institute or defend any legal proceedings which relate to the Escrow Shares. The
Escrow Agent shall have the right to retain counsel if it becomes involved in
any disagreement, dispute or litigation on account of this Agreement or
otherwise determines that it is necessary to consult counsel.
(b) The Escrow Agent is hereby expressly authorized to comply with and
obey any Court Order. In case the Escrow Agent obeys or complies with a Court
Order, the Escrow Agent shall not be liable to the Guarantor and Purchaser or to
any other person, firm, corporation or entity by reason of such compliance.
ARTICLE V
GENERAL MATTERS
5.1. Termination. This escrow shall terminate upon the release of the
Escrow Shares then being held in escrow by the Escrow Agent or at any time upon
the agreement in writing of the Guarantor and Purchaser.
5.2. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be sent by
telecopy (with the sender's facsimile machine confirming transmission and a copy
of the notice delivered by overnight courier, regular or certified mail) and
shall be deemed to have been duly given (a) one (1) day after being sent, if
sent by 5:00 P.M., New York time on a business day, or (b) the next business day
if sent at any other time
(a) If to the Guarantor, to:
Xxxxxx Xxxxxxxx
c/o Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxx & Kahr
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
(b) If to the Purchasers, to:
[ ]
(c) If to the Escrow Agent, to:
Grushko & Xxxxxxx, P.C.
Attorneys at Law
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
or to such other address as any of them shall give to the others by notice made
pursuant to this Section 5.2.
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5.3. Assignment; Binding Agreement. Neither this Agreement nor any right or
obligation hereunder shall be assignable by any party without the prior written
consent of the other parties hereto. This Agreement shall enure to the benefit
of and be binding upon the parties hereto and their respective legal
representatives, successors and assigns.
5.4. Invalidity. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal, or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
5.5. Counterparts/Execution. This Agreement may be executed in any number
of counterparts and by different signatories hereto on separate counterparts,
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument. This Agreement
may be executed by facsimile transmission.
5.6. Cooperation. Guarantor agrees to cooperate with Purchaser in all
respects necessary in connection with the conversion of the Preferred Stock and
the issuance of Escrow Share in Purchaser's name and the removal of any
restrictive or other legend thereon. Upon release to Purchaser of Escrow Shares,
the Purchaser shall receive all of the right, title and interest to the Escrow
Shares owned by Guarantor, including registration rights.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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5.7. Agreement. Each of the undersigned states that he has read the
foregoing Note Escrow Agreement and understands and agrees to it.
XXXXXX XXXXXXXX
the "Guarantor"
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the "Purchaser"
By:
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ESCROW AGENT:
----------------------------------------
GRUSHKO & XXXXXXX, P.C.
Novelos Therapeutics, Inc. ("Novelos"), by _______________________, its
___________, acknowledges the foregoing Agreement and agrees and undertakes to
facilitate the reissuance of the Escrow Shares in the name of the Purchaser or
other designee requested by Escrow Agent. Novelos acknowledges that the holding
periods of the Escrow Shares for the Purchaser will tack onto the holding period
of the Escrow Shares in the hands of the Guarantor, which holding period
commenced for purposes of Rule 144 under the Securities Act of 1933 on
_______________. Novelos agrees to cooperate with Purchaser in fulfilling the
purposess and intent of this Agreement and not take any action or suffer
inaction inconsistant with Purchaser's lawful rights under this Agreement.
NOVELOS THERAPEUTICS, INC.
By:
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Name: Xxxxx Xxxxxx, President
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NOTICE OF EXERCISE
(QUARTERLY DETERMINATION DATES)
To: Grushko & Xxxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Pursuant to the Escrow Agreement dated [ ], 2005 among Xxxxxx Xxxxxxxx
("Guarantor"), [ ] (each a "Purchaser" and collectively "Purchasers"),
and Grushko & Xxxxxxx, P.C. ("Escrow Agent"), the undersigned on behalf of the
undersigned Purchaser hereby exercises the right to send this Notice of Exercise
and receive the number of Escrow Shares described below. All capitalized terms
herein have the definitions attributed to them in the Escrow Agreement.
1. During the calendar quarter ended ___________, Purchaser sold the
Conversion Shares described oon Schedule A hereto (the "Sold Securities"). Sales
of the Conversion Shares were made in open market arm's length transactions.
Schedule A includes a description of the sales of the Sold Securities including
the amount of Sold Securities, the trade date of each such sale and the net
proceeds received from each such sale.
2. The amount which would aggregate an annual 20% profit, compounded
annually, on the Sold Securities calculated for the periods during which the
converted Preferred Stock and Sold Securities were actually owned by Purchaser
from the date of the Escrow Agreement until the last day of the above-referenced
calendar quarter, is $_________. This amount is the Guaranteed Return described
in the Escrow Agreement. For purposes of the foregoing calculation, Conversion
Shares received upon conversion of Preferred Stock, if any, that continued to be
owned by the Purchaser on the last day of the relevant calendar quarter ("End
Date") shall be deemed to have been sold on the End Date at the Closing Price,
as hereinafter defined, for the Common Stock on such date ("Attributed Value").
The actual profit (loss) calculated pursuant to Section 1 above, after deducting
the per share purchase price of the Sold Securities and Attributed Value is
$___________. The difference between the actual profit (loss) and the Guaranteed
Return is $____________ ("Deficiency Amount").
3. Purchaser is hereby exercising its right to receive ___________ Escrow
Shares. The amount of Escrow Shares being purchased hereby is equal to the
Deficiency Amount divided by the closing price of the Common Stock as reported
by Bloomberg, L.P. for the principal trading market upon which the Common Stock
is listed for trading or quotation ("Closing Price"), for the last day of the
calendar quarter referred to above. The Closing Price is $_________.
4. Guarantor shall not be required to compensate Purchaser for Any
Deficiency Amount except to the extent that Purchaser may exercise its right to
receive the Escrow Shares.
Dated:
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By:
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