Exhibit 10.33
ESCROW AGREEMENT
Account Name: XxxXxxx.Xxx, Inc. Escrow Account
Account Number:
Tax Identification No: 00-0000000
Date Opened:
THIS ESCROW AGREEMENT made and entered into as of the 18th day of January,
2000, by and between XxxXxxx.Xxx, Inc. doing business as BioLynx a Texas
corporation ("Client"), and Sterling Bank, a Texas state banking association
("Escrow Agent").
WITNESSETH:
WHEREAS, Client pursuant to a Registration Statement having an Effective Date as
therein provided (the "Registration Statement" or "Prospectus") is making an
offering of a minimum of $2,000,000 and a maximum of $4,000,000 from the sale to
investors (the "Subscribers") of shares of the common stock of the Company, par
value of $0.001 per share (the "Common Stock") at a price of $4.00 per share,
pursuant to the Securities Act of 1933, as amended, and
WHEREAS, Client wishes to retain the services of the Escrow Agent to escrow the
funds, and the Escrow Agent is willing to act as an escrowee, in accordance with
and subject to the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein set forth, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged and confessed, the parties agree as
follows:
1. Appointment of Escrow Agent. Client hereby appoints Sterling Bank as Escrow
Agent for the purposes set forth herein and Sterling Bank accepts such
appointment upon the terms and provisions set forth in the Escrow
Agreement.
2. Deposits of Escrow Funds. Until the date the Company has accepted
subscriptions for at least 500,000 shares as hereinafter defined, all
collected funds of the Subscribers received by the Company shall be
deposited directly into the Escrow Account. The Company shall advise the
Escrow Agent in writing at the time of each deposit into the Escrow Account
of the name and address of each Subscriber along with the number of Shares
of the Common Stock subscribed for by each Subscriber, and the cash amount
tendered by each Subscriber.
3. Duties and Responsibilities of Escrow Agent. The duties and
responsibilities of the Escrow Agent shall be limited to the following:
(a) At the expiration of five days after the sale of 500,000 shares of
Common Stock totaling $2,000,000 by the Company and the deposit of the
proceeds from the sale thereof in the Escrow Account, together with
information as to the names and addresses of the Subscribers and the amount
subscribed for by each such Subscriber by 5:00 p.m., Houston, Texas time,
180 days from the effective date of the Prospectus (herein referred to as
the "date the Company has accepted subscriptions for at least 500,000
shares"), the Company, in writing, shall direct the Escrow Agent to pay all
fees and commissions then due in connection with the offering as specified
in the Prospectus, and disburse the remainder of such proceeds of such
sales to the Company.
(b) In the event that the proceeds representing the sale of 500,000 shares
of Common Stock shall not have been deposited by the Company into the
Escrow Account by 5:00 p.m., Houston, Texas time, 180 days from the
effective date of the Prospectus or the Company terminates the Offering
before such date, then in such
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event, the Escrow Agent shall send by the end of the next business day to
the Subscribers, by checks, the cash theretofore contributed by them to the
Company and deposited in the Escrow Account, with interest.
(c) Upon the happening of (i) the complete disbursement from the Escrow
Account by the Escrow Agent to the Company of the proceeds from the
Offering in accordance with the distribution terms hereinabove set forth,
or (ii) the repayment to the Subscribers of their subscriptions in the
event the Offering does not close as provided in the Prospectus, or (iii)
the Offering is terminated before the date the Company has accepted
subscriptions for at least 500,000 shares, and the repayment to the
Subscribers of their subscriptions, the Escrow Agent shall be relieved of
all liabilities in connection with the Escrow Account and this Agreement
shall terminate.
4. Investment of Escrow Funds. Escrow Agent shall invest and reinvest the
Escrow Funds only in such account or investments as the Company may specify
by written notice. The Company may only specify investments in (i) bank
accounts, (ii) bank money-market accounts, (iii) short-term certificates of
deposit issued by a bank, (iv) short-term securities issued or guaranteed
by the U.S. Government, or (v) money market mutual funds which hold United
States Treasury obligations and/or repurchase agreements covering United
States Treasury obligations. Escrow Agent shall not be liable or
responsible for any loss resulting from any investment of the Escrow Funds
in accordance with the terms of this Agreement. Client hereby agrees to
indemnify Escrow Agent from any losses incurred in making any of the
foregoing investments or following the investment instructions of Client.
The Escrow Agent shall not under any circumstances be required to advance
its own funds.
5. Liability of Escrow Agent. The duties of the Escrow Agent hereunder will be
limited to observance of the express provisions of the Escrow Agreement.
Furthermore, the Escrow Agent is not expected or required to be familiar
with the provisions of any other writing, understanding or agreement, and
shall not be charged with any responsibility or liability in connection
with the observance or non-observance of the provisions of such other
writing, understanding or agreement, and no implied covenant of any type
whatsoever shall be read into the Escrow Agreement. The Escrow Agent may
rely and act upon any instrument received by it pursuant to this Escrow
Agreement which it reasonably believes to be in conformity with the
requirements of the Escrow Agreement and Escrow Agent shall not be
responsible for determining the genuineness, authenticity of authority from
any such instrument or the person signing same. Escrow Agent will not be
liable for any action taken or not taken by it under the terms of the
Escrow Agreement in the absence of fraud or gross negligence on its part.
In receiving the Escrow Funds, Escrow Agent acts only as a depository and
assumes no responsibility except pursuant to the terms of this Escrow
Agreement.
Escrow Agent may act or refrain from acting in respect of any matter
covered by this Escrow Agreement in full reliance upon and with the advice
of counsel which may be selected by it, and shall be fully protected in so
acting or in refraining from acting upon the advice of such counsel.
Furthermore, Escrow Agent may rely and shall be protected in acting upon
any writing that may be submitted to it in connection with its duties
hereunder without determining the genuineness, authenticity or due
authority from any such writing or the person signing same and shall have
no liability or responsibility with respect to the form, content or
validity thereof.
Escrow Agent shall have no responsibility or liability for any act or
omission on its part, notwithstanding any demand or notice to the contrary
by Client or any other person or entity, all subject to the sole limitation
that Escrow Agent exercises its best judgment. Except as herein expressly
provided, none of the provisions of the Escrow Agreement shall require
Escrow Agent to expend or risk its own funds or otherwise incur financial
liability or expense in the performance of any of its duties hereunder.
Escrow Agent is hereby authorized to comply with and obey all orders,
judgments, decrees or writs entered or issued by any court, and in the
event Escrow Agent obeys or complies with any such order, judgment, decree
or writ, in whole or in part, it shall not be liable to Client or any other
parties to this Escrow Agreement, or to any other person or entity, by
reason or such compliance, notwithstanding that it shall be determined that
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any such order, judgment, decree or writ be entered without jurisdiction or
be invalid for any reason or be subsequently reversed, modified, annulled,
satisfied or vacated.
Escrow Agent shall not be required to institute or defend any action or
legal process involving any matter referred to herein which in any manner
affects his or its duties or liabilities hereunder to take any other action
with reference to the Escrow Funds not specifically agreed to herein, and
Escrow Agent shall not be responsible for any act or failure to act on its
part except in the case of its own fraud or gross negligence.
Should any controversy arise between Client and any other party to this
Escrow Agreement or between any other person or entity with respect to this
Escrow Agreement, or with respect to the ownership of or the right to
receive any sums from the Escrow Funds, Escrow Agent shall have the right
to institute a plea of interpleader in any court of competent jurisdiction
to determine the rights of the parties. Should a plea of interpleader be
instituted, or should Escrow Agent become involved in litigation in any
manner whatsoever, connected with or pertaining to this Escrow Agreement or
the Escrow Funds, Client hereby agrees to pay Escrow Agent, on demand, in
addition to any charge made hereunder for acting as escrow agent,
reasonable attorneys' fees incurred by Escrow Agent, and any other
disbursements, expenses, losses, costs, and damages in connection with or
resulting from such litigation.
6. Indemnification. Client hereby agrees to indemnify and hold Escrow Agent
harmless from and against any and all claims, loses, liabilities, costs,
damages, fees charges and expenses (including attorneys' fees) which Escrow
Agent may incur or sustain by reason of its acting as Escrow Agent under
this Agreement, unless same shall result from the fraud or gross negligence
of Escrow Agreement.
7. Compensation of Escrow Agent. Escrow Agent shall be entitled to receive
compensation for its services hereunder in accordance with its schedule of
fees published from time to time and in effect at the time such
compensation is payable hereunder. A copy of the current fee schedule is
attached hereto as Exhibit A. Escrow Agent shall also be entitled to
reimbursement for any and all costs and expenses incurred in performing its
services hereunder, including without limitation, the reasonable fees and
expenses incurred in performing its services hereunder, including without
limitation, the reasonable fees and expenses of any counsel retained by it
in accordance with the terms of this Escrow Agreement. Without relieving
Client of any obligation to pay Escrow Agent the fees and expenses payable
to it hereunder, Escrow Agent is authorized to pay and deduct its fees and
expenses from the Escrow Funds and any interest or other income earned on
the Escrow Funds.
8. Resignation. Escrow Agent may resign as escrow agent at any time by giving
Client at least ten (10) days' prior written notice of such resignation. If
on the effective date of such resignation Escrow Agent has not received
written instructions of appointment of a successor escrow agent, Escrow
Agent may thereupon deposit all Escrow Funds and documents into the
registry of a court of competent jurisdiction. The parties hereto intend
that a substitute escrow agent will be appointed to fulfill the duties of
Escrow Agent hereunder for the remaining term of the Agreement in the event
of Escrow Agent's resignation and Client will use its best efforts to
promptly appoint a substitute Escrow Agent who shall be bound by the terms
and provisions of the Escrow Agreement.
9. Termination and Amendment. The Escrow Agreement shall remain in effect
until all Escrow Funds and any escrow documents are disbursed in accordance
herewith; provided that any Escrow Agent who resigns in accordance with the
terms hereof shall no longer be bound by this Escrow Agreement but the
Agreement shall remain in effect, notwithstanding such resignation, for
purposes of determining the rights and duties of Client and any such
successor Escrow Agent. No amendment or modification to this Escrow
Agreement shall be in force or effect unless signed by the parties hereto.
10. No Trusteeship. Client agrees that Escrow Agent is acting solely as an
escrowee hereunder and not as a trustee and that Escrow Agent has no
fiduciary duties, obligations or liabilities under this Agreement.
11. Confidentiality. Except as required by applicable law, legal process or
other legal compulsion, Escrow Agent shall hold all information relating to
the transactions contemplated by this Escrow Agent in strict confidence
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and under no circumstance shall any of the terms and conditions or the
participants involved be disclosed, unless such disclosure is mandated by
applicable law.
12. Notices. All notices, requests, instructions and demands which may be given
by any party hereto to any other party shall be given to such parties in
writing and shall be delivered either in hand with acknowledgment of
receipt or by depositing same in the United States mail, certified or
registered mail, return receipt requested, addressed to the respective
parties as follows.
(A) XxxXxxx.Xxx, Inc.
0000 Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000
Attn: Xxxx X Xxxxxx XX
(B) Escrow Agent: Sterling Bank
X.X. Xxx 00000
Xxxxxxx, Xxxxx 00000-0000
Attention:
With a copy to: Xxxxxxx Xxx
General Counsel
Sterling Bancshares, Inc.
X.X. Xxx 00000
Xxxxxxx, Xxxxx 00000-0000
Or to such other address as may from time to time be specified by the
respective parties to the other party in writing. If any notice is required
by law, ten (10) days notice shall be deemed reasonable.
13. Binding Agreement. This Agreement shall be binding up upon and enforceable
against and shall inure to the benefit of the respective successors, legal
representatives, heirs and assigns of the parties hereto.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
"Escrow Agent" "Client"
Sterling Bank BioLynx. Com, Inc.
By: /s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxx XX
--------------------------------- ------------------------
Name: Xxxxxxxx Xxxxxxx Name: Xxxx X. Xxxxxx XX
Title: AVP Title: President
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