EXHIBIT 2.5
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of November 2, 2000,
by and among Calypte Biomedical Corporation, a corporation incorporated under
the laws of Delaware (the "Company"), Townsbury Investments 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 Xxxxxx Xxxxxx White & XxXxxxxxx
LLP in the form of EXHIBIT C to the Purchase Agreement;
(iii) the sum of $35,000 for the fees and expenses of the Purchaser's
counsel;
(iv) the sum of $35,000 for the non accountable expense allowance of
Ladenburg Xxxxxxxx & Co. Inc.;
(v) the original executed Company counterpart of this Escrow
Agreement; and
(vi) the original executed Company counterpart of 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 immediately transfer the sum
of $35,000 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 sum of $35,000 as a non-accountable expense allowance to
Ladenburg Xxxxxxxx & Co. Inc. and the Escrow Agent shall then arrange to have
the Purchase Agreement, this Escrow Agreement, the Registration Rights
Agreement 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 promptly, but no later than within two
(2) Trading Days 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 two (2) Trading Days after receipt of such funding notice from
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the Escrow Agent, cause its transfer agent to issue the Draw Down Shares to
the Purchaser via DTC deposit to the account specified by the Purchaser from
time to time, deliver the applicable Draw Down Warrant, the original executed
opinion of Xxxxxx Xxxxxx White & XxXxxxxxx LLP in the form of EXHIBIT C to
the Purchase Agreement and 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, the
Draw Down Warrants, the opinion and the supplemental prospectus have been so
delivered, the Escrow Agent shall calculate and enter the number and exercise
price on the face of the Draw Down Warrant and, within one (1) Trading Day
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
Draw Down Warrant, 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
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State of New York. Except as expressly set forth herein, any action to
enforce, arising out of, or 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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WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of this 2nd day of November, 2000.
CALYPTE BIOMEDICAL CORPORATION
By: /s/ XXXXX XXXX
---------------------------------
Xxxxx Xxxx, President & CEO
TOWNSBURY INVESTMENTS LIMITED
By: /s/ XXXX XXXXXXX
----------------------------------
Name: Xxxx Xxxxxxx
Title: 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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