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EXHIBIT 10.32
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of
September 7, 2000, by and among Bionutrics, Inc., a corporation incorporated
under the laws of Nevada (the "Company"), Justicia Holdings Limited
("Purchaser"), and Xxxxxxx Xxxxxx & Green, P.C., having an address at 000 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000 (the "Escrow Agent"). Capitalized terms used but not
defined herein shall have the meanings set forth in the Common Stock Purchase
Agreement referred to in the first recital.
WHEREAS, the Purchaser will from time to time as requested by
the Company, purchase shares of the Company's Common Stock from the Company as
set forth in that certain Common Stock Purchase Agreement (the "Purchase
Agreement") dated the date hereof between the Purchaser and the Company, which
will be issued as per the terms and conditions contained herein and in the
Purchase Agreement; and
WHEREAS, the Company and the Purchaser have requested that the
Escrow Agent hold in escrow and then distribute the initial documents and
certain funds which are conditions precedent to the effectiveness of the
Purchase Agreement, and have further requested that upon each exercise of a Draw
Down, the Escrow Agent hold the relevant documents and the applicable purchase
price pending receipt by Purchaser of certificates representing the securities
issuable upon such Draw Down;
NOW, THEREFORE, in consideration of the covenants and mutual
promises contained herein and other good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE I
TERMS OF THE ESCROW FOR THE INITIAL CLOSING
1.1. The parties hereby agree to establish an escrow
account with the Escrow Agent whereby the Escrow Agent shall hold the funds and
documents which are referenced in Section 5.2 of the Purchase Agreement.
1.2. At the Initial Closing, the Company shall deliver to
the Escrow Agent:
(i) the original executed Registration Rights
Agreement in the form of Exhibit A to the
Purchase Agreement;
(ii) the original executed opinion of Xxxxxxxxx
Traurig, LLP in the form of Exhibit C to the
Purchase Agreement;
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(iii) the 25,000 shares of Common Stock for the
fees and expenses of the Purchaser. The
Company shall register such Common Stock in
the Registration Statement;
(iv) the original executed Company counterpart of
this Escrow Agreement;
(v) the original executed Company counterpart of
the Purchase Agreement; and
(vi) the original executed Initial Warrant in the
form of Exhibit E to the Purchase Agreement.
1.3. Upon receipt of the foregoing, and receipt of
executed counterparts from Purchaser of the Purchase Agreement, the Registration
Rights Agreement and this Escrow Agreement, the Escrow Agent shall calculate and
enter the exercise price, the issuance date and termination date on the face of
the Initial Warrant and immediately transfer the sum of Twenty-Five Thousand
Dollars ($25,000) to Xxxxxxx Xxxxxx & Green, P.C. ("EB&G"), 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 for the Purchaser's legal, administrative and escrow costs
and the Escrow Agent shall then arrange to have the Purchase Agreement, this
Escrow Agreement, the Registration Rights Agreement, the Initial Warrant and the
opinion of counsel delivered to the appropriate parties.
1.4 Wire transfers to the Escrow Agent shall be made as
follows:
Xxxxxxx Xxxxxx Green, P.C.
Master Escrow Account
Chase Manhattan Bank
0000 Xxxxxxxx - Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA No. 000000000
Account No. 035 1 346036
Attention: L. Borneo
ARTICLE II
TERMS OF THE ESCROW FOR EACH DRAW DOWN
2.1. Each time the Company shall send a Draw Down Notice
to the Purchaser as provided in the Purchase Agreement, it shall send a copy, by
facsimile, to the Escrow Agent.
2.2. Each time the Purchaser shall purchase Shares
pursuant to a Draw Down, the Purchaser shall send the applicable Purchase Price
of the Draw Down Shares to the Escrow Agent, which shall advise the Company in
writing that it has received the Purchase Price for such Draw Down Shares. The
Company shall promptly, but no later than three (3) Trading Days after receipt
of such funding notice from the Escrow Agent, cause its transfer agent to issue
the Draw
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Down Shares to the Purchaser via DTC deposit to the account specified by the
Purchaser from time to time, deliver the Purchaser Warrants, deliver the
original executed opinion of Xxxxxxxxx Xxxxxxx, LLP, in the form of Exhibit C
and deliver a Form 424(b) supplemental prospectus to the Escrow Agent. Upon
receipt of written confirmation from the transfer agent or from the Purchaser
that such Draw Down Shares have been so deposited and the Purchase Warrants, the
opinion and the supplemental prospectus have been so delivered, the Escrow Agent
shall, within one (1) Trading Day, calculate and enter the number, the exercise
price, the initial issuance date and the termination date on the face of the
Purchaser Warrants and wire the Purchase Price of the Draw Down per the written
instructions of the Company, net of $1,500 as escrow expenses to the Escrow
Agent, and deliver the Purchaser Warrants, the opinion and the supplemental
prospectus to the Purchaser.
ARTICLE III
MISCELLANEOUS
3.1. No waiver or any breach of any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed an extension of
the time for performance of any other obligation or act.
3.2. All notices or other communications required or
permitted hereunder shall be in writing, and shall be sent by fax, overnight
courier, registered or certified mail, postage prepaid, return receipt
requested, and shall be deemed received upon receipt thereof, as set forth in
the Purchase Agreement.
3.3. This Escrow Agreement shall be binding upon and shall
inure to the benefit of the permitted successors and permitted assigns of the
parties hereto.
3.4. This Escrow Agreement is the final expression of, and
contains the entire agreement between, the parties with respect to the subject
matter hereof and supersedes all prior understandings with respect thereto. This
Escrow Agreement may not be modified, changed, supplemented or terminated, nor
may any obligations hereunder be waived, except by written instrument signed by
the parties to be charged or by their respective agents duly authorized in
writing or as otherwise expressly permitted herein.
3.5. Whenever required by the context of this Escrow
Agreement, the singular shall include the plural and masculine shall include the
feminine. This Escrow Agreement shall not be construed as if it had been
prepared by one of the parties, but rather as if both parties had prepared the
same. Unless otherwise indicated, all references to Articles are to this Escrow
Agreement.
3.6. The parties hereto expressly agree that this Escrow
Agreement shall be governed by, interpreted under and construed and enforced in
accordance with the laws of the State of New York. Except as expressly set forth
herein, any action to enforce, arising out of, or
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relating in any way to, any provisions of this Escrow Agreement shall be brought
in the Federal or state courts of New York, New York as is more fully set forth
in the Purchase Agreement.
3.7. The Escrow Agent's duties hereunder may be altered,
amended, modified or revoked only by a writing signed by the Company, Purchaser
and the Escrow Agent.
3.8. 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
the Escrow Agent while acting in good faith, excepting only its own gross
negligence or willful misconduct, and any act done or omitted by the Escrow
Agent pursuant to the advice of the Escrow Agent's attorneys-at-law (other than
Escrow Agent itself) shall be conclusive evidence of such good faith.
3.9. 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.
3.10. The Escrow Agent shall not be liable in any respect
on account of the identity, authorization or rights of the parties executing or
delivering or purporting to execute or deliver the Purchase Agreement or any
documents or papers deposited or called for thereunder or hereunder.
3.11. 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 therefor. THE ESCROW AGENT HAS ACTED AS LEGAL COUNSEL
FOR THE PURCHASER, AND MAY CONTINUE TO ACT AS LEGAL COUNSEL FOR THE PURCHASER,
FROM TIME TO TIME, NOTWITHSTANDING ITS DUTIES AS THE ESCROW AGENT HEREUNDER. THE
COMPANY CONSENTS TO THE ESCROW AGENT IN SUCH CAPACITY AS LEGAL COUNSEL FOR THE
PURCHASER AND WAIVES ANY CLAIM THAT SUCH REPRESENTATION REPRESENTS A CONFLICT OF
INTEREST ON THE PART OF THE ESCROW AGENT. THE COMPANY UNDERSTANDS THAT THE
PURCHASER AND THE ESCROW AGENT ARE RELYING EXPLICITLY ON THE FOREGOING PROVISION
IN ENTERING INTO THIS ESCROW AGREEMENT.
3.12. The Escrow Agent's responsibilities as escrow agent
hereunder shall terminate if the Escrow Agent shall resign by written notice to
the Company and the Purchaser. In the event of any such resignation, the
Purchaser and the Company shall appoint a successor Escrow Agent.
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3.13. If the Escrow Agent reasonably requires other or
further instruments in connection with this Escrow Agreement or obligations in
respect hereto, the necessary parties hereto shall join in furnishing such
instruments.
3.14. It is understood and agreed that should any dispute
arise with respect to the delivery and/or ownership or right of possession of
the documents or the escrow funds held by the Escrow Agent hereunder, the Escrow
Agent is authorized and directed in the Escrow Agent's sole discretion (1) to
retain in the Escrow Agent's possession without liability to anyone all or any
part of said documents or the escrow funds until such disputes shall have been
settled either by mutual written agreement of the parties concerned 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
(2) to deliver the escrow funds and any other property and documents held by the
Escrow Agent hereunder to a state or Federal court having competent subject
matter jurisdiction and located in the State and City of New York in accordance
with the applicable procedure therefor.
3.15. The Company and the Purchaser agree jointly and
severally to indemnify and hold harmless the Escrow Agent and its partners,
employees, agents and representatives 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 or the transactions contemplated
hereby or by the Purchase Agreement 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
the gross negligence or willful misconduct of the Escrow Agent.
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IN WITNESS WHEREOF, the parties hereto have executed this
Escrow Agreement as of this 7th day of September, 2000.
BIONUTRICS, INC.
By: /s/Xxxxxx Xxxx
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Xxxxxx Xxxx, Ph.D., President & CEO
JUSTICIA HOLDINGS LIMITED
By: /s/Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, Authorized Signatory
ESCROW AGENT:
XXXXXXX XXXXXX & GREEN, P.C.
By: /s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Authorized Signatory
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