Exhibit 4.6
DEBENTURE AND WARRANT SHARES ESCROW AGREEMENT
DEBENTURE AND WARRANT SHARES ESCROW AGREEMENT (this
"Agreement"), dated as of June 30, 2000, by and among SurgiLight, Inc., a
Delaware corporation with its principal place of business at 00000 Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (the "Company"); Xxxxxx Xxxxxxxxxx &
Xxxxxxxx, LLP with its principal place of business at 000 Xxxxx Xxxxxx, Xxx
Xxxx, XX 00000 (the "Escrow Agent"); and GEM Global Yield Fund Limited, a Nevis
company, with its administrative office at Xxxxxxx Xxxxxxxxxx Xxxxx, X.X. Xxx
000, Xxxx Xxxxxx, Xxxxx, Xxxx Xxxxxx (Referred to herein as the "Purchaser" or
sometimes the "Purchasers").
Recitals
A. Simultaneously with the execution of this Agreement, the
Purchasers and the Company entered into a Convertible Debenture Purchase
Agreement, dated as of the date hereof (the "Purchase Agreement") incorporated
herein by reference, pursuant to which the Purchasers have agreed to purchase
certain Debentures and Warrants (the "Debentures" and the "Warrants") of the
Company.
B. The Escrow Agent is willing to act as escrow agent pursuant to the
terms of this Agreement with respect to the purchase of the Debentures and the
Warrants.
C. All capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Purchase Agreement.
NOW, THEREFORE, IT IS AGREED:
1. Procedure for Escrow. The procedure of escrow shall governed by
the provisions of Article 2 of the Debenture Purchase Agreement.
2. Terms of Escrow. The terms of the escrow shall be governed by
Article 4 of the Purchase Agreement, Article 2 of the Warrant and Articles 4 and
5 of the Debenture.
3. Duties and Obligations of the Escrow Agent.
(a) The parties hereto agree that the duties and obligations of the
Escrow Agent are only such as are herein specifically provided and no other. The
Escrow Agent's duties are as a depositary only, and the Escrow Agent shall incur
no liability whatsoever, except as a direct result of its willful misconduct or
gross negligence.
(b) The Escrow Agent may consult with counsel of its choice, and
shall not be liable for any action taken, suffered or omitted by it in
accordance with the advice of such counsel.
(c) The Escrow Agent shall not be bound in any way by the terms of
any other agreement to which the Purchasers and the Company are parties, whether
or not it has knowledge thereof, and the Escrow Agent shall not in any way be
required to determine whether or not any other agreement has been complied with
by the Purchasers and the Company, or any other party thereto. The Escrow Agent
shall not be bound by any modification, amendment, termination, cancellation,
rescission or supersession of this Agreement unless the same shall be in writing
and signed jointly by the Purchasers and the Company, and agreed to in writing
by the Escrow Agent.
(d) If the Escrow Agent shall be uncertain as to its duties or rights
hereunder or shall receive instructions, claims or demands which, in its
opinion, are in conflict with any of the provisions of this Agreement, it shall
be entitled to refrain from taking any action, other than to keep safely all
property held in escrow or to take certain action, until it shall jointly be
directed otherwise in writing by the Purchasers and the Company or by a final
judgment of a court of competent jurisdiction.
(e) The Escrow Agent shall be fully protected in relying upon any
written notice, demand, certificate or document which it, in good faith,
believes to be genuine. The Escrow Agent shall not be responsible for the
sufficiency or accuracy of the form, execution, validity or genuineness of
documents or securities now or hereafter deposited hereunder, or of any
endorsement thereon, or for any lack of endorsement thereon, or for any
description therein; nor shall the Escrow Agent be responsible or liable in any
respect on account of the identity, authority or rights of the persons executing
or delivering or purporting to execute or deliver any such document, security or
endorsement.
(f) The Escrow Agent shall not be required to institute legal
proceedings of any kind and shall not be required to defend any legal
proceedings which may be instituted against it or in respect of the
Consideration.
(g) If the Escrow Agent at any time, in its sole discretion, deems it
necessary or advisable to relinquish custody of the Consideration, it may do so
by delivering the same to any other escrow agent mutually agreeable to the
Purchasers and the Company and, if no such escrow agent shall be selected within
three days of the Escrow Agent's notification to the Purchasers and the Company
of its desire to so relinquish custody of the Consideration, then the Escrow
Agent may do so by delivering the Consideration to the clerk or other proper
officer of a court of competent jurisdiction as may be permitted by law. The fee
of any court officer shall be borne by the Company. Upon such delivery, the
Escrow Agent shall be discharged from any and all responsibility or liability
with respect to the Consideration and this Agreement and the Company and the
Purchasers shall promptly pay to the Escrow Agent all monies which may be owed
it for its services hereunder, including, but not limited to, reimbursement of
its out-of-pocket expenses pursuant to paragraph (i) below.
(h) This Agreement shall not create any fiduciary duty on the Escrow
Agent's part to the Purchasers or the Company, nor disqualify the Escrow Agent
from representing either party hereto in any dispute with the other, including
any dispute with respect to the Consideration.
(i) The Escrow Agent represents that it is counsel to the Purchasers.
The parties agree that the Escrow Agent's engagement as provided for herein is
not and shall not be objectionable for any reason.
(j) Upon the performance of this Agreement, the Escrow Agent shall be
deemed released and discharged of any further obligations hereunder.
4. Indemnification.
(a) The Purchasers hereby indemnify and hold free and harmless Escrow
Agent from any and all losses, expenses, liabilities and damages (including but
not limited to reasonable attorney's fees, and amounts paid in settlement)
resulting from claims asserted by the Company against Escrow Agent with respect
to the performance of any of the provisions of this Agreement.
(b) The Company hereby indemnifies and holds free and harmless Escrow
Agent from any and all losses, expenses, liabilities and damages (including but
not limited to reasonable attorney's fees, and amount paid in settlement)
resulting from claims asserted by the Purchasers against Escrow Agent with
respect to the performance of any of the provisions of this Agreement.
(c) The Purchasers and the Company, jointly and severally, hereby
indemnify and hold the Escrow Agent harmless from and against any and all
losses, damages, taxes, liabilities and expenses that may be incurred by the
Escrow Agent, arising out of or in connection with its acceptance of appointment
as the Escrow Agent hereunder and/or the performance of its duties pursuant to
this Agreement, the Purchase Agreement, the Debentures and the Warrants,
including, but not limited to, all legal costs and expenses of the Escrow Agent
incurred defending itself against any claim or liability in connection with its
performance hereunder, provided that the Escrow Agent shall not be entitled to
any indemnity for any losses, damages, taxes, liabilities or expenses that
directly result from its willful misconduct or gross negligence.
(d) In the event of any legal action between the parties to this
Agreement to enforce any of its terms, the legal fees of the prevailing party
shall be paid by the party(ies) who did not prevail.
5. Miscellaneous.
(a) All Notice of Conversions, Objections, notices, requests, demands
and other communications hereunder shall be in writing, sent by telecopier, upon
proof of sending thereof to the following addresses:
(i) If to the Company: SurgiLight, Inc.
00000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: X. X. Xxx
Tel: 000-000-0000
Fax: 000-000-0000
With copies to: The Business Law Group
000 X. Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000
Attn: X. Xxxxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
(ii) If to the Purchasers: At the fax numbers set forth in
the Purchase Agreement.
(iii) If to the Escrow Agent: Xxxxxx Gottbetter & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxxxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
or at such other address as any of the parties to this Agreement may hereafter
designate in the manner set forth above to the others.
(b) This Agreement shall be construed and enforced in accordance with
the law of the State of New York applicable to contracts entered into and
performed entirely within New York.
(c) This Agreement may be executed in two or more counterparts, all
of which when taken together shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(d) This Agreement shall be binding upon and inure to the benefit of
the parties and their successors and permitted assigns. The assignment by a
party of this Agreement or any rights hereunder shall not affect the obligations
of such party under this Agreement.
6. Termination of Escrow. This Escrow Agreement shall begin upon the
date hereof and shall terminate upon the earlier of (i) the conversion of the
full amount of the Debentures; (ii) the Expiration Date of the Warrants; or
(iii) the Maturity Date of the Debentures. Upon the termination of the Escrow
Agreement, the Escrow Agent shall return any unconverted Debenture Escrow Shares
to the Company.
[ SIGNATURE PAGE FOLLOWS ]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed the day and year first above written.
Escrow Agent: The Company:
XXXXXX XXXXXXXXXX & SURGILIGHT, INC.
XXXXXXXX, LLP
By: By:
-------------------------- --------------------------------
Name: Name:
Title: Title:
Purchaser:
GEM GLOBAL YIELD FUND LIMITED
By:
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Name:
Title:
