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EXHIBIT 10.37
EXHIBIT A
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of September 20,
2000 by and among Bionutrics, Inc., a corporation incorporated under the laws of
the State of Nevada (the "Company"), the investors signatory hereto (each an
"Investor" and together the "Investors") and Xxxxxxx Xxxxxx & Green, P.C., (the
"Escrow Agent"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Common Stock and Warrants Purchase Agreement referred
to in the first recital.
W I T N E S S E T H:
WHEREAS, the Investors will purchase from the Company 500,000 shares
of Common Stock and Warrants, which will be issued as per the terms contained
herein and pursuant to the Common Stock and Warrants Purchase Agreement, between
the Company and the Investors, (the "Purchase Agreement") dated the date hereof
between the Investors and the Company; and
WHEREAS, it is intended that the purchase of the securities be
consummated in accordance with the requirements set forth by Sections 4(2)
and/or 4(6) and/or Regulation D promulgated under the Securities Act of 1933, as
amended; and
WHEREAS, the Company and the Investors have requested that the
Escrow Agent notify the Investors upon receipt of the certificates representing
the Common Stock and the Warrants, and certain other closing documents specified
herein;
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 1
TERMS OF THE ESCROW
1.1. The parties hereby agree to establish an escrow account with
the Escrow Agent whereby the Escrow Agent shall receive the certificates
representing the Common Stock and the Warrants, and certain other closing
documents specified herein at the Closing as contemplated by the Purchase
Agreement and notify the Investors of such receipt.
1.2. At the Closing, the Company shall deliver to the Escrow Agent
the certificates representing the shares of Common Stock (or at the election of
each of the
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Investors, a copy of an executed letter to the Transfer Agent authorizing the
release of such Common Stock) to be issued to each Investor at the Closing
together with:
(i) the original executed Registration Rights Agreement in the
form of Exhibit B to the Purchase Agreement;
(ii) Instructions to Transfer Agent in the form of Exhibit E to the
Purchase Agreement;
(iii) the original executed opinion of Xxxxxxxxx Traurig, LLP in the
form of Exhibit D to the Purchase Agreement;
(iv) 10,000 shares of Common Stock issued to the Investor for its
legal and escrow fees, which Common Stock shall be registered
on the Registration Statement to be filed by the Company (or,
at the election of each of the Investors, a copy of an
executed letter to the Transfer Agent authorizing the release
of such Common Stock);
(v) the original executed Warrant; and
(vi) an original counterpart of this Escrow Agreement.
1.3. Upon receipt of the foregoing items, the Escrow Agent shall
calculate and enter the exercise price on the face of the Warrant, and it shall
notify the Investors to release the Purchase Price per the written instructions
of the Company.
1.4. Upon confirmation from the Company that the Purchase Price has
been received, the share certificates (or, at the election of each of the
Investors, a letter from the Transfer Agent), the Purchase Agreement, this
Agreement, the Warrant, the Registration Rights Agreement and the opinion of
counsel delivered as per instructions from the Investors and to deliver the
Instructions to Transfer Agent to the Transfer Agent.
ARTICLE 2
MISCELLANEOUS
2.1. 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.
2.2. Except as otherwise set forth above, all notices or other
communications required or permitted hereunder shall be in writing, and shall be
sent as set forth in the Purchase Agreement.
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2.3. This Escrow Agreement shall be binding upon and shall inure to
the benefit of the permitted successors and permitted assigns of the parties
hereto.
2.4. 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.
2.5. 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.
2.6. 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. Any action to enforce, arising out of,
or relating in any way to, any provisions of this Escrow Agreement shall only be
brought in a state or Federal court sitting in New York City.
2.7. The Escrow Agent's duties hereunder may be altered, amended,
modified or revoked only by a writing signed by the Company, each Investor and
the Escrow Agent.
2.8. 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, and without gross negligence or willful misconduct.
2.9. 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.
2.10. 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.
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2.11. 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
INVESTORS, AND MAY CONTINUE TO ACT AS LEGAL COUNSEL FOR THE INVESTORS, 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 INVESTORS
AND WAIVES ANY CLAIM THAT SUCH REPRESENTATION REPRESENTS A CONFLICT OF INTEREST
ON THE PART OF THE ESCROW AGENT. THE COMPANY UNDERSTANDS THAT THE INVESTORS AND
THE ESCROW AGENT ARE RELYING EXPLICITLY ON THE FOREGOING PROVISION IN ENTERING
INTO THIS ESCROW AGREEMENT.
2.12. 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 Investors. In the event of any such resignation, the Investors
and the Company shall appoint a successor Escrow Agent.
2.13. 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.
2.14. 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 City of New York in accordance with the
applicable procedure therefor.
2.15. The Company and each Investor 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 20th day of September, 2000.
BIONUTRICS, INC.
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx Xxxx, Ph.D., President & CEO
INVESTORS:
AMRO International, S.A.
By: /s/ X. X. Xxxxxxxx
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X.X. Xxxxxxxx, Director
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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