EXHIBIT 4.04
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "AGREEMENT") is made and entered into as of
December 14, 2005 by and between NANOSCIENCE TECHNOLOGIES, INC., a Nevada
corporation (the "COMPANY"); the Buyer(s) listed on the Securities Purchase
Agreement, dated the date hereof (also referred to as the "INVESTOR(S)"), and
GOTTBETTER & PARTNERS, LLP, as Escrow Agent hereunder ("ESCROW AGENT").
BACKGROUND
WHEREAS, the Company and the Investor(s) 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"), for the
Purchase Price, as that term is defined in the Securities Purchase Agreement.
The Securities Purchase Agreement provides that the Investor(s) shall deposit
the purchase amount in a segregated escrow account to be held by Escrow Agent in
order to effectuate a disbursement to the Company at each Closing (as defined in
the Securities Purchase Agreement) to be held as set forth in the Securities
Purchase Agreement.
WHEREAS, the Company intends to sell Convertible Securities (the
"OFFERING").
WHEREAS, Escrow Agent has agreed to accept, hold, and disburse the funds
deposited with it in accordance with the terms of this Agreement.
WHEREAS, in order to establish the escrow of funds and to effect the
provisions of the Securities Purchase Agreement, the parties hereto have entered
into this Agreement.
NOW THEREFORE, in consideration of the foregoing, it is hereby agreed as
follows:
1. DEFINITIONS. The following terms shall have the following
meanings when used herein:
a. "ESCROW FUNDS" shall mean, for each Closing, the funds deposited
with the Escrow Agent pursuant to this Agreement.
b. "JOINT WRITTEN DIRECTION" shall mean, at each Closing, a written
direction executed by the Investor(s) and the Company directing Escrow Agent to
disburse all or a portion of the Escrow Funds or to take or refrain from taking
any action pursuant to this Agreement.
c. "ESCROW PERIOD" shall begin with the commencement of the Offering
and shall terminate upon the earlier to occur of the following dates:
(i) The date upon which Escrow Agent confirms that it has
received in the Escrow Account all of the proceeds of the sale of the
Convertible Debentures;
(ii) The expiration of sixty (60) days from the date of
commencement of the Offering (unless extended by mutual written agreement
between the Company and the Investor(s) with a copy of such extension to Escrow
Agent); or
(iii) The date upon which a determination is made by the
Company and the Investor(s) to terminate the Offering prior to the sale of all
the Convertible Debentures.
During the Escrow Period, the Company and the Investor(s) are aware that
they are not entitled to any funds received into escrow and no amounts deposited
in the Escrow Account shall become the property of the Company or the
Investor(s) or any other entity, or be subject to the debts of the Company or
the Investor(s) or any other entity.
2. APPOINTMENT OF AND ACCEPTANCE BY ESCROW AGENT. The Investor(s) and the
Company hereby appoint Escrow Agent to serve as Escrow Agent hereunder. Escrow
Agent hereby accepts such appointment and, upon receipt by wire transfer of the
Escrow Funds in accordance with Section 3 below, agrees to hold, invest and
disburse the Escrow Funds in accordance with this Agreement.
a. The Company hereby acknowledges that Escrow Agent is general
counsel to the Investor(s), the managing partner of the Escrow Agent is a
director of the Investor(s), and counsel to the Investor(s) in connection with
the transactions contemplated and referred herein. The Company agrees that in
the event of any dispute arising in connection with this Escrow Agreement or
otherwise in connection with any transaction or agreement contemplated and
referred herein, Escrow Agent shall be permitted to continue to represent the
Investor(s) and the Company will not seek to disqualify such counsel.
3. CREATION OF ESCROW FUNDS. On or prior to the date of the commencement
of the Offering, the parties shall establish an escrow account with Escrow
Agent, which escrow account shall be entitled as follows: Nanoscience
Technologies, Inc./Highgate House Funds, Ltd. Escrow Account for the deposit of
the Escrow Funds. The Investor(s) will instruct subscribers to wire funds to the
account of Escrow Agent as follows:
BANK: Citibank, N.A
ROUTING #: 000000000
ACCOUNT #: 00000000
NAME ON ACCOUNT: Gottbetter & Partners, LLP Trust Account
NAME ON SUB-ACCOUNT: Nanoscience Technologies, Inc./Highgate
House Funds, Ltd. Escrow account
4. DEPOSITS INTO THE ESCROW ACCOUNT. The Investor(s) agree(s) that they
shall promptly deliver funds for the payment of the Convertible Debentures to
Escrow Agent for deposit in the Escrow Account.
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5. DISBURSEMENTS FROM THE ESCROW ACCOUNT.
a. Escrow Agent will continue to hold such funds until Highgate
House Funds, Ltd. on behalf of the Investor(s) and the Company execute a Joint
Written Direction directing Escrow Agent to disburse the Escrow Funds for each
Closing pursuant to Joint Written Direction signed by the Company and the
Investor(s). In disbursing such funds, Escrow Agent is authorized to rely upon
such Joint Written Direction from the Company and the Investor(s) and may accept
any signatory from the Company listed on the signature page to this Agreement
and any signature from the Investor(s) that Escrow Agent already has on file.
b. In the event Escrow Agent does receive the amount of the Escrow
Funds for the respective Closing prior to expiration of the Escrow Period, in no
event will the Escrow Funds be released to the Company until such amount is
received by Escrow Agent in collected funds. For purposes of this Agreement, the
term "collected funds" shall mean all funds received by Escrow Agent which have
cleared normal banking channels and are in the form of cash.
6. COLLECTION PROCEDURE. Escrow Agent is hereby authorized to deposit the
proceeds of each wire in the Escrow Account.
7. SUSPENSION OF PERFORMANCE: DISBURSEMENT INTO COURT. If at any time,
there shall exist any dispute between the Company and the Investor(s) with
respect to holding or disposition of any portion of the Escrow Funds or any
other obligations of Escrow Agent hereunder, or if at any time Escrow Agent is
unable to determine, to Escrow Agent's sole satisfaction, the proper disposition
of any portion of the Escrow Funds or Escrow Agent's proper actions with respect
to its obligations hereunder, or if the parties have not within thirty (30) days
of the furnishing by Escrow Agent of a notice of resignation pursuant to Section
9 hereof, appointed a successor Escrow Agent to act hereunder, then Escrow Agent
may, in its sole discretion, take either or both of the following actions:
a. suspend the performance of any of its obligations (including
without limitation any disbursement obligations) under this Escrow Agreement
until such dispute or uncertainty shall be resolved to the sole satisfaction of
Escrow Agent or until a successor Escrow Agent shall be appointed (as the case
may be); provided however, Escrow Agent shall continue to invest the Escrow
Funds in accordance with Section 8 hereof; and/or
b. petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in any venue convenient
to Escrow Agent, for instructions with respect to such dispute or uncertainty,
and to the extent required by law, pay into such court, for holding and
disposition in accordance with the instructions of such court, all funds held by
it in the Escrow Funds, after deduction and payment to Escrow Agent of all fees
and expenses (including court costs and attorneys' fees) payable to, incurred
by, or expected to be incurred by Escrow Agent in connection with performance of
its duties and the exercise of its rights hereunder.
c. Escrow Agent shall have no liability to the Company, the
Investor(s), or any person with respect to any such suspension of performance or
disbursement into court, specifically including any liability or claimed
liability that may arise, or be alleged to have
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arisen, out of or as a result of any delay in the disbursement of funds held in
the Escrow Funds or any delay in with respect to any other action required or
requested of Escrow Agent.
8. INVESTMENT OF ESCROW FUNDS. Escrow Agent shall deposit the Escrow Funds
in a non-interest bearing account.
If Escrow Agent has not received a Joint Written Direction at any time
that an investment decision must be made, Escrow Agent shall maintain the Escrow
Funds, or such portion thereof, as to which no Joint Written Direction has been
received, in a non-interest bearing account.
9. RESIGNATION AND REMOVAL OF ESCROW AGENT. Escrow Agent may resign from
the performance of its duties hereunder at any time by giving thirty (30) days'
prior written notice to the parties or may be removed, with or without cause, by
the parties, acting jointly, by furnishing a Joint Written Direction to Escrow
Agent, at any time by the giving of ten (10) days' prior written notice to
Escrow Agent as provided herein below. Upon any such notice of resignation or
removal, the representatives of the Investor(s) and the Company identified in
Sections 13a.(iv) and 13b.(iv), below, jointly shall appoint a successor Escrow
Agent hereunder, which shall be a commercial bank, trust company or other
financial institution with a combined capital and surplus in excess of
$10,000,000.00. Upon the acceptance in writing of any appointment of Escrow
Agent hereunder by a successor Escrow Agent, such successor Escrow Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be
discharged from its duties and obligations under this Escrow Agreement, but
shall not be discharged from any liability for actions taken as Escrow Agent
hereunder prior to such succession. After any retiring Escrow Agent's
resignation or removal, the provisions of this Escrow Agreement shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Escrow Agent under this Escrow Agreement. The retiring Escrow Agent shall
transmit all records pertaining to the Escrow Funds and shall pay all funds held
by it in the Escrow Funds to the successor Escrow Agent, after making copies of
such records as the retiring Escrow Agent deems advisable and after deduction
and payment to the retiring Escrow Agent of all fees and expenses (including
court costs and attorneys' fees) payable to, incurred by, or expected to be
incurred by the retiring Escrow Agent in connection with the performance of its
duties and the exercise of its rights hereunder.
10. LIABILITY OF ESCROW AGENT.
a. Escrow Agent shall have no liability or obligation with respect
to the Escrow Funds except for Escrow Agent's willful misconduct or gross
negligence. Escrow Agent's sole responsibility shall be for the safekeeping,
investment, and disbursement of the Escrow Funds in accordance with the terms of
this Agreement. Escrow Agent shall have no implied duties or obligations and
shall not be charged with knowledge or notice or any fact or circumstance not
specifically set forth herein. Escrow Agent may rely upon any instrument, not
only as to its due execution, validity and effectiveness, but also as to the
truth and accuracy of any information contained herein, which Escrow Agent shall
in good faith believe to be genuine, to have been signed or presented by the
person or parties purporting to sign the same and conform to the provisions of
this Agreement. In no event shall Escrow Agent be liable for incidental,
indirect, special, and consequential or punitive damages. Escrow Agent shall not
be
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obligated to take any legal action or commence any proceeding in connection with
the Escrow Funds, any account in which Escrow Funds are deposited, this
Agreement or the Purchase Agreement, or to appear in, prosecute or defend any
such legal action or proceeding. Escrow Agent may consult legal counsel selected
by it in any event of any dispute or question as to construction of any of the
provisions hereof or of any other agreement or its duties hereunder, or relating
to any dispute involving any party hereto, and shall incur no liability and
shall be fully indemnified from any liability whatsoever in acting in accordance
with the opinion or instructions of such counsel. The Company and the
Investor(s) jointly and severally shall promptly pay, upon demand, the
reasonable fees and expenses of any such counsel.
b. Escrow Agent is hereby authorized, in its sole discretion, to
comply with orders issued or process entered by any court with respect to the
Escrow Funds, without determination by Escrow Agent of such court's jurisdiction
in the matter. If any portion of the Escrow Funds is at any time attached,
garnished or levied upon under any court order, or in case the payment,
assignment, transfer, conveyance or delivery of any such property shall be
stayed or enjoined by any court order, or in any case any order judgment or
decree shall be made or entered by any court affecting such property or any part
thereof, then and in any such event, Escrow Agent is authorized, in its sole
discretion, to rely upon and comply with any such order, writ judgment or decree
which it is advised by legal counsel selected by it, binding upon it, without
the need for appeal or other action; and if Escrow Agent complies with any such
order, writ, judgment or decree, it shall not be liable to any of the parties
hereto or to any other person or entity by reason of such compliance even though
such order, writ judgment or decree may be subsequently reversed, modified,
annulled, set aside or vacated.
11. INDEMNIFICATION OF ESCROW AGENT. From and at all times after the date
of this Agreement, the parties jointly and severally, shall, to the fullest
extent permitted by law and to the extent provided herein, indemnify and hold
harmless Escrow Agent and each director, officer, employee, attorney, agent and
affiliate of Escrow Agent (collectively, the "INDEMNIFIED PARTIES") against any
and all actions, claims (whether or not valid), losses, damages, liabilities,
costs and expenses of any kind or nature whatsoever (including without
limitation reasonable attorney's fees, costs and expenses) incurred by or
asserted against any of the Indemnified Parties from and after the date hereof,
whether direct, indirect or consequential, as a result of or arising from or in
any way relating to any claim, demand, suit, action, or proceeding (including
any inquiry or investigation) by any person, including without limitation the
parties to this Agreement, whether threatened or initiated, asserting a claim
for any legal or equitable remedy against any person under any statute or
regulation, including, but not limited to, any federal or state securities laws,
or under any common law or equitable cause or otherwise, arising from or in
connection with the negotiation, preparation, execution, performance or failure
of performance of this Agreement or any transaction contemplated herein, whether
or not any such Indemnified Party is a party to any such action or proceeding,
suit or the target of any such inquiry or investigation; provided, however, that
no Indemnified Party shall have the right to be indemnified hereunder for
liability finally determined by a court of competent jurisdiction, subject to no
further appeal, to have resulted from the gross negligence or willful misconduct
of such Indemnified Party. If any such action or claim shall be brought or
asserted against any Indemnified Party, such Indemnified Party shall promptly
notify the Company and the Investor(s) hereunder in writing, and the Investor(s)
and the Company shall assume the defense thereof, including the employment of
counsel and the payment of all expenses. Such
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Indemnified Party shall, in its sole discretion, have the right to employ
separate counsel (who may be selected by such Indemnified Party in its sole
discretion) in any such action and to participate and to participate in the
defense thereof, and the fees and expenses of such counsel shall be paid by such
Indemnified Party, except that the Investor(s) and/or the Company shall be
required to pay such fees and expense if (a) the Investor(s) or the Company
agree to pay such fees and expenses, or (b) the Investor(s) and/or the Company
shall fail to assume the defense of such action or proceeding or shall fail, in
the sole discretion of such Indemnified Party, to employ counsel reasonably
satisfactory to the Indemnified Party in any such action or proceeding, (c) the
Investor(s) and the Company are the plaintiff in any such action or proceeding
or (d) the named or potential parties to any such action or proceeding
(including any potentially impleaded parties) include both the Indemnified
Party, the Company and/or the Investor(s) and the Indemnified Party shall have
been advised by counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the Company
or the Investor(s). The Investor(s) and the Company shall be jointly and
severally liable to pay fees and expenses of counsel pursuant to the preceding
sentence, except that any obligation to pay under clause (a) shall apply only to
the party so agreeing. All such fees and expenses payable by the Company and/or
the Investor(s) pursuant to the foregoing sentence shall be paid from time to
time as incurred, both in advance of and after the final disposition of such
action or claim. The obligations of the parties under this section shall survive
any termination of this Agreement, and resignation or removal of Escrow Agent
shall be independent of any obligation of Escrow Agent.
The parties agree that neither payment by the Company or the Investor(s)
of any claim by Escrow Agent for indemnification hereunder shall impair, limit,
modify, or affect, as between the Investor(s) and the Company, the respective
rights and obligations of Investor(s), on the one hand, and the Company, on the
other hand.
12. EXPENSES OF ESCROW AGENT. Except as set forth in Section 11, the
Company shall reimburse Escrow Agent for all of its reasonable out-of-pocket
expenses, including attorneys' fees, travel expenses, telephone and facsimile
transmission costs, postage (including express mail and overnight delivery
charges), copying charges and the like. All of the compensation and
reimbursement obligations set forth in this Section shall be payable by the
Company, upon demand by Escrow Agent. The obligations of the Company under this
Section shall survive any termination of this Agreement and the resignation or
removal of Escrow Agent.
13. WARRANTIES.
a. The Investor(s) makes the following representations and
warranties to Escrow Agent:
(i) The Investor(s) has full power and authority to execute
and deliver this Agreement and to perform its obligations hereunder.
(ii) This Agreement has been duly approved by all necessary
action of the Investor(s), including any necessary approval of the limited
partner of the Investor(s) or necessary corporate approval, as applicable, has
been executed by duly authorized officers of the Investor(s), enforceable in
accordance with its terms.
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(iii) The execution, delivery, and performance of the
Investor(s) of this Agreement will not violate, conflict with, or cause a
default under any agreement of limited partnership of Investor(s) or the
articles of incorporation or bylaws of the Investor(s) (as applicable), any
applicable law or regulation, any court order or administrative ruling or degree
to which the Investor(s) is a party or any of its property is subject, or any
agreement, contract, indenture, or other binding arrangement.
(iv) Xxxx X. Xxxxxxxxxx has been duly appointed to act as the
representative of the Investor(s) hereunder and has full power and authority to
execute, deliver, and perform this Escrow Agreement, to execute and deliver any
Joint Written Direction, to amend, modify, or waive any provision of this
Agreement, and to take any and all other actions as the Investor(s)'s
representative under this Agreement, all without further consent or direction
form, or notice to, the Investor(s) or any other party.
(v) No party other than the parties hereto and the Investor(s)
has/have, or shall have, any lien, claim or security interest in the Escrow
Funds or any part thereof. No financing statement under the Uniform Commercial
Code is on file in any jurisdiction claiming a security interest in or
describing (whether specifically or generally) the Escrow Funds or any part
thereof.
(vi) All of the representations and warranties of the
Investor(s) contained herein are true and complete as of the date hereof and
will be true and complete at the time of any disbursement from the Escrow Funds.
b. The Company makes the following representations and warranties to
Escrow Agent:
(i) The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada and has
full power and authority to execute and deliver this Agreement and to perform
its obligations hereunder.
(ii) This Agreement has been duly approved by all necessary
corporate action of the Company, including any necessary shareholder approval,
has been executed by duly authorized officers of the Company, enforceable in
accordance with its terms.
(iii) The execution, delivery, and performance by the Company
of this Agreement is in accordance with the Securities Purchase Agreement and
will not violate, conflict with, or cause a default under the certificate of
incorporation or bylaws of the Company, any applicable law or regulation, any
court order or administrative ruling or decree to which the Company is a party
or any of its property is subject, or any agreement, contract, indenture, or
other binding arrangement, including without limitation to the Securities
Purchase Agreement, to which the Company is a party.
(iv) Xxxxx Xxxxxx has been duly appointed to act as the
representative of the Company hereunder and has full power and authority to
execute, deliver, and perform this Agreement, to execute and deliver any Joint
Written Direction, to amend, modify or waive any provision of this Agreement and
to take all other actions as the Company's Representative under
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this Agreement, all without further consent or direction from, or notice to, the
Company or any other party.
(v) No party other than the parties hereto and the Investor(s)
have, or shall have, any lien, claim or security interest in the Escrow Funds or
any part thereof. No financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing (whether
specifically or generally) the Escrow Funds or any part thereof.
(vi) All of the representations and warranties of the Company
contained herein are true and complete as of the date hereof and will be true
and complete at the time of any disbursement from the Escrow Funds.
14. CONSENT TO JURISDICTION AND VENUE; GOVERNING LAW. 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 any of the parties 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.
15. NOTICE. All notices and other communications hereunder shall be in
writing and shall be deemed to have been validly served, given or delivered five
(5) days after deposit in the United States mails, by certified mail with return
receipt requested and postage prepaid, when delivered personally, one (1) day
delivered to any overnight courier, or when transmitted by facsimile
transmission and upon confirmation of receipt and addressed to the party to be
notified as follows:
If to Investor(s), to: Highgate House Funds, Ltd.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx
Portfolio Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Escrow Agent, to: Gottbetter & Partners, LLP
000 Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to the Company, to: Nanoscience Technologies, Inc.
00 Xxxxxxxxxxx Xx., Xxxxx 0000 #00
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx, Secretary,
Chief Operating Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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
Or to such other address as each party may designate for itself by like notice.
16. AMENDMENTS OR WAIVER. This Agreement may be changed, waived,
discharged or terminated only by a writing signed by the parties hereto. No
delay or omission by any party in exercising any right with respect hereto shall
operate as waiver. A waiver on any one occasion shall not be construed as a bar
to, or waiver of, any right or remedy on any future occasion.
17. SEVERABILITY. To the extent any provision of this Agreement is
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition, or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between the parties relating to the holding, investment, and disbursement of the
Escrow Funds and sets forth in their entirety the obligations and duties of
Escrow Agent with respect to the Escrow Funds.
19. BINDING EFFECT. All of the terms of this Agreement, as amended from
time to time, shall be binding upon, inure to the benefit of and be enforceable
by the respective heirs, successors and assigns of the Investor(s), the Company,
or Escrow Agent.
20. EXECUTION OF COUNTERPARTS. This Agreement and any Joint Written
Direction may be executed in counter parts, which when so executed shall
constitute one and same agreement or direction.
21. TERMINATION. Upon the first to occur of the disbursement of all
amounts in the Escrow Funds pursuant to Joint Written Directions or the
disbursement of all amounts in the Escrow Funds into court pursuant to Section 7
hereof, this Agreement shall terminate and Escrow Agent shall have no further
obligation or liability whatsoever with respect to this Agreement or the Escrow
Funds.
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IN WITNESS WHEREOF the parties have hereunto set their hands and seals the
day and year above set forth.
NANOSCIENCE TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Secretary, Chief Operating Officer
HIGHGATE HOUSE FUNDS, LTD.
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Portfolio Manager
GOTTBETTER & PARNTERS, LLP
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Partner
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