Exhibit 10.5
ESCROW AGREEMENT
ESCROW AGREEMENT ("Escrow Agreement") dated as of June 6, 2002, by
and between BIOPHAN TECHNOLGIES, INC., (the "Company"), BONANZA CAPITAL
MASTERFUND LTD., (the "Purchaser") and BOYLAN, BROWN, CODE, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP (the "Escrow Agent").
W I T N E S S E T H
WHEREAS, the Company and the Purchaser are parties to a Common Stock
Purchase Agreement of even date herewith (the "Purchase Agreement"). Unless
otherwise defined herein, capitalized terms shall have the meanings accorded
to them in the Purchase Agreement; and
WHEREAS, the Purchase Agreement contemplates that, from time-to-time,
the Company will sell to the Purchaser and the Purchaser will purchase from
the Company, up to $2,400,000 in shares of the Company's Common Stock (the
"Shares"); and
WHEREAS, the Company and the Purchaser desire to engage the Escrow
Agent to facilitate delivery of the Shares and payment of the Purchase Price
therefor, as contemplated by the Purchase Agreement, upon the terms and
conditions hereinafter set forth; and
WHEREAS, the process of delivery of the Shares to the Purchaser against
delivery of the Purchase Price to the Company is herein referred to as
"Settlement"; and
WHEREAS, the Escrow Agent has agreed to facilitate Settlement, as
aforesaid, upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged by each of the parties hereto, the
parties hereto hereby agree as follows:
1. Appointment of Escrow Agent. The Company and the Purchaser
hereby appoint the Escrow Agent as escrow agent upon the terms and conditions
set forth herein, and the Escrow Agent hereby accepts such appointment.
2. Delivery of Escrow Property.
(a) At least one day prior to each Settlement Date:
(i) the Company and the Purchaser shall each execute and
deliver to the other, and the Escrow Agent, via facsimile transmission,
a Settlement Certificate in the Form of Exhibit A, quantifying the
amount of the investment amount and the number of shares of Common
Stock to be purchased (the "Settlement Certificate");
(ii) the Company shall cause the delivery of that number
of whole shares of Common Stock of the Company specified in the
Settlement Certificate under "Number of Shares to the Purchaser" (the
"Subscription Shares"), in certificated form registered in the name of
the Purchaser, or, if so determined by the Purchaser, via DWAC to the
account designated by the Escrow Agent on Exhibit B (the "Escrow Shares
Account"); and
(iii) the Purchaser shall transmit payment in an amount
equal to the payment specified in the Settlement Certificate under
"Investment Amount" (the "Subscription Payment"), to the Escrow Agent,
via wire transfer to the account designated by the Escrow Agent on
Exhibit C (the "Escrow Funds Account").
(b) The Escrow Funds Account and the Escrow Shares Account are
hereinafter collectively referred to as the "Escrow Accounts" and the
Subscription Payments and the Subscription Shares are hereinafter
collectively referred to as the "Escrow Property."
(c) The parties acknowledge that the delivery of Shares under
this Agreement via DWAC is subject to factors outside of the parties'
control, including the Company's or its transfer agent's eligibility to
participate in DWAC transactions. Any obligation of the Escrow Agent to
receive and/or deliver Shares hereunder via DWAC shall be subject to such
eligibility requirements.
3. Investment of the Escrow Property. The Escrow Accounts shall not
bear interest and no investment of the Escrow Property shall be made while
held by the Escrow Agent.
4. Release of Escrow Property. The Escrow Agent shall disburse the
Escrow Property, as follows:
(a) Provided that the Escrow Agent shall have received a signed
copy of the Settlement Certificate, the Subscription Shares and the
Subscription Payment, all as aforesaid, on each Settlement Date:
(i) the Escrow Agent shall transmit to the Company the
amount equal to the payment specified in the Settlement
Certificate under "Net Proceeds to the Company", via wire
transfer, to the account designated by the Company on Exhibit D
(the "Company Account") and
(ii) the Escrow Agent shall cause (A) physical delivery of
certificates evidencing the Subscription Shares to be made to the
Purchaser at the address specified in Section 9 hereof, or, if the
Escrow Agent holds the Shares in electronic form, (B) delivery
thereof via DWAC, to the account designated by the Purchaser on
Exhibit E (the "Purchaser Account").
(b) In the event the Escrow Agent has not received all of the
Escrow Property required to be delivered to it prior to an applicable
Settlement Date, and such failure continues for three business days
thereafter, the Escrow Agent may, upon notice to each of the parties,
(i) return any Escrow Property then under its custody to the party from whom
such Escrow Property was received, in such manner as the Escrow Agent
reasonably deems appropriate or (ii) take action pursuant to Section 5
hereof.
5. Disbursement Into Court. At any time, the Escrow Agent, in its
sole discretion, may commence an action in the nature of interpleader in any
court it deems appropriate, to determine ownership or disposition of the
Escrow Property or it may deposit the Escrow Property with the clerk of any
appropriate court or it may retain the Escrow Property pending receipt of a
final, non-appealable order of a court having jurisdiction over all of the
parties hereto directing to whom and under what circumstances the Escrow
Property are to be disbursed and delivered. During the pendency of any such
action, the Escrow Agent may suspend the performance of any of its
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 have been appointed (as the case may be). The
Escrow Agent shall have no liability to the Company, the Purchaser or any
other 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 arisen, out of or as a result
of any delay in the disbursement of funds held in the Escrow Accounts or any
delay in or with respect to any other action required or requested of Escrow
Agent.
6. Limitation of Responsibility and Liability and Duties of the
Escrow Agent. The acceptance by the Escrow Agent of its duties as such under
this Escrow Agreement is subject to the following terms and conditions, which
all parties to this Escrow Agreement hereby agree shall govern and control
with respect to the rights, duties, liabilities and immunities of the Escrow
Agent:
(a) The Escrow Agent shall not be liable for any error in
judgment or mistake of law or fact, or for any action taken or omitted to be
taken by it, or any action suffered by it to be taken or omitted by it, in
good faith and in the exercise of its own best judgment. The Escrow Agent
shall not be liable for any delay in delivering Escrow Property as required
hereby, absent its own gross negligence or willful misconduct.
(b) The Escrow Agent may rely conclusively and shall be
protected in acting upon any order, notice, demand, certificate, opinion or
advice of counsel (including counsel chosen by the Escrow Agent other than
itself), statement, instrument, report or other paper or document (not only
as to its due execution and validity and effectiveness of its provisions, but
also as to the truth and acceptability of any information therein contained)
which is believed by the Escrow Agent to be genuine and to be signed or
presented by the proper person or persons.
(c) The Escrow Agent shall not be bound by any notice or
demand, or any waiver, modification, termination or rescission of this Escrow
Agreement unless evidenced by a writing delivered to the Escrow Agent signed
by the Company and the Purchaser and, if the duties or rights of the Escrow
Agent are affected by any such modification of or waiver under this Escrow
Agreement unless the Escrow Agent shall have given its prior written consent
thereto.
(d) The Escrow Agent acts hereunder as a depositary only, and
shall not be responsible for the sufficiency or accuracy, the form of, or the
execution, validity, value or genuineness of any document or property
received, held or delivered by it hereunder, or of any signature or
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 document or
property paid or delivered by the Escrow Agent pursuant to the provisions
hereof.
(e) The Escrow Agent shall have the right to assume, in the
absence of written notice to the contrary from the Company and the Purchaser,
that a fact or an event by reason of which an action would or might be taken
by the Escrow Agent does not exist or has not occurred, without incurring
liability for any action taken or omitted, in good faith and in the exercise
of its own best judgment, in reliance upon such assumption.
(f) The Escrow Agent shall be indemnified and held harmless by
the Company and the Purchaser, upon demand by the Escrow Agent, from and
against any claims, demands, losses, damages, liabilities, costs and
expenses, including counsel fees and disbursements, (collectively, "Damages")
suffered by the Escrow Agent in connection with any action, suit or other
proceeding involving any claim, or in connection with any claim or demand,
which in any way directly or indirectly arises out of or relates to this
Escrow Agreement, the services of the Escrow Agent hereunder, the monies or
other property held by it hereunder or any such Damages. Promptly after the
receipt by the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit or proceeding, the Escrow Agent shall, if a
claim in respect thereof shall be made against the other parties hereto,
notify such parties thereof in writing; but the failure by the Escrow Agent
to give such notice shall not relieve any party from any liability which such
party may have to the Escrow Agent hereunder, except to the extent of actual
prejudice demonstrated by such party. The obligations of the Company and the
Purchaser under this Section 6(f) shall survive any termination of this
Escrow Agreement and the resignation or removal of the Escrow Agent.
(g) From time to time on and after the date hereof, the parties
shall deliver or cause to be delivered to the Escrow Agent such further
documents and instruments and shall do or cause to be done such further acts
as the Escrow Agent shall reasonably request (it being understood that the
Escrow Agent shall have no obligation to make such request) to carry out more
effectively the provisions and purposes of this Escrow Agreement, to evidence
compliance herewith or to assure itself that it is protected in acting
hereunder.
(h) The Escrow Agent may resign at any time and be discharged
from its duties as Escrow Agent hereunder by its giving the other parties
hereto prior written notice of at least seven business days. As soon as
practicable after its resignation, the Escrow Agent shall turn over to a
successor escrow agent appointed by the other parties hereto, jointly, all of
the Escrow Property held hereunder upon presentation of the document
appointing the new escrow agent and its acceptance thereof. If no new escrow
agent is so appointed within the 20 day period following the giving of such
notice of resignation, the Escrow Agent may deposit the Escrow Property with
any court it deems appropriate.
(i) The Escrow Agent may consult with, and obtain advice from,
legal counsel in the event of any dispute or question as to the construction
of any of the provisions hereof or its duties hereunder, and it shall incur
no liability and shall be fully protected in acting in good faith in
accordance with the opinion and instructions of such counsel, other than
itself.
(j) The Escrow Agent is authorized, in its sole discretion, to
comply with orders issued or process entered by any court with respect to the
Escrow Property, without determination by the Escrow Agent of such court's
jurisdiction in the matter. If any portion of the Escrow Property 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 affecting such property or any part
thereof, then and in any such event, the 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 (other than
itself) is binding upon it without the need for appeal or other action; and
if the 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.
(k) The parties acknowledge that the Escrow Agent has acted as
counsel to the Company and/or its affiliates in various matters, including in
connection with the transactions contemplated by the Purchase Agreement, and
has prepared this Escrow Agreement, and may continue to act as counsel to the
Company and/or its affiliates during and following the term of this Escrow
Agreement. All parties to this Escrow Agreement waive any conflicts that
exist or may arise by reason of such representation; provided, however, that
the Escrow Agent shall ensure that the Escrow Accounts are under the sole
control of the Escrow Agent.
7. Fees of Escrow Agent. The Escrow Agent shall be compensated for
its services hereunder at the rate of $250 for each Settlement facilitated by
the Escrow Agent. The compensation obligations set forth in this Section 7
shall be payable by the Company, prior to disbursement to the Company. The
obligations under this Section 7 shall survive any termination of this Escrow
Agreement and the resignation or removal of Escrow Agent.
8. Governing Law; Jurisdiction, Venue. This Escrow Agreement shall
be governed by and construed and enforced in accordance with the law (other
than the law governing conflict of law questions) of the State of New York.
Except as otherwise set forth herein, any suit, action or proceeding arising
out of or relating to this Escrow Agreement shall be brought in State Supreme
Court or Federal District Court located in Monroe County, New York, and the
parties hereby (a) submit to the exclusive jurisdiction of such courts, (b)
waive any objection to the laying of venue in such courts, and (c) agree that
service of process in any such suit, action or proceeding, in addition to any
other method permitted by applicable law, may be effected by certified mail,
return receipt requested, to a party at its address set forth in Section 9
hereof.
9. Notices. All notices and communications shall be deemed to have
been duly given: at the time (a) delivered by hand, if personally delivered;
(b) when received, if deposited in the mail, postage prepaid, addressed as
provided below; (c) when transmission is verified, if telecopied; and (d) on
the next business day, if timely delivered to a courier service guaranteeing
overnight delivery; provided that the Escrow Agent shall have no obligation
hereunder unless notice is actually received by it;
To the Company: BIOPHAN TECHNOLGIES, INC.
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Tel: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CEO
To the Purchaser: BONANZA CAPITAL MASTERFUND LTD.
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Tel: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
To the Escrow Agent: BOYLAN, BROWN, CODE, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
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Tel: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Any party may change its address by providing written notice of such change
to the other parties hereto. All notices and communications provided by the
Company and/or the Purchaser to the Escrow Agent shall be signed by duly
authorized persons of each.
10. Termination of Escrow Agreement. The Escrow Agent's
responsibilities hereunder shall terminate upon the earliest to occur of the
termination of the Purchase Agreement, the termination or rescission of this
Agreement by mutual consent of the Company and the Purchaser, the
disbursement of the Escrow Property into court under Section 5 hereof, and
the resignation of the Escrow Agent under Section 6(h) hereof.
11. Entire Escrow Agreement. This Escrow Agreement (and the exhibits
attached hereto) contains the entire understanding by and among the parties
hereto with respect to the subject matter hereof; there are no promises,
agreements, understandings, representations or warranties, other than as
herein set forth. No change or modification of this Escrow Agreement shall
be valid or effective unless the same is in writing and is signed by all of
the parties hereto.
12. Counterparts. This Escrow Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused their respective
hands to be set hereto with the intention of being bound effective in all
respects as of the date and year first hereinabove written.
BIOPHAN TECHNOLOGIES, INC.
By:______________________________
Its:_____________________________
BONANZA CAPITAL MASTERFUND LTD.
By:______________________________
Its:_____________________________
BOYLAN, BROWN, CODE, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
By:______________________________
Its:_____________________________
EXHIBIT A
FORM OF SETTLEMENT CERTIFICATE
BIOPHAN TECHNOLOGIES, INC.
SETTLEMENT CERTIFICATE
This Settlement Certificate is executed and delivered in furtherance of
(i) the Common Stock Purchase Agreement dated June 6, 2002 (the "Purchase
Agreement"), by and between Biophan Technologies, Inc. (the "Company") and
Bonanza Capital Masterfund Ltd. (the "Purchaser") and (ii) the Escrow
Agreement dated June __, 2002 (the "Escrow Agreement"), by and among the
Company, the Purchaser and Boylan, Brown, Code, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP (the
"Escrow Agent"). Unless otherwise defined herein, capitalized terms shall
have the meanings ascribed to them in the Purchase Agreement and the Escrow
Agreement.
Settlement Date: _____________________________
Investment Amount: $_____________________________
Number of Shares to
the Purchaser: _____________________________
Escrow Agent Fee: $_____________________________
Placement Agent Fee: $_____________________________
Adjustments*: $_____________________________
Net Proceeds to
the Company: $_____________________________
Settlement of this transaction shall take place in the manner described
in the Purchase Agreement and the Escrow Agreement.
Purchase of the Shares shall be on a delivery versus payment basis, as
more fully described in the Purchase Agreement and the Escrow Agreement.
By its execution of this Settlement Certificate, the Company hereby
certifies that each of its representations and warranties in the Purchase
Agreement is true and accurate on the date hereof and that the Company has
satisfied each condition precedent to the transaction evidenced by this
Settlement Certificate and remains in compliance with each and every
obligation and covenant made by it in the Purchase Agreement. Without
limitation of the foregoing, the Company hereby certifies that (i) the
Registration Statement has become effective under the Securities Act of 1933,
as amended (the Securities Act"), (ii) the Registration Statement and
prospectus included therein is current and no stop order is in effect with
respect to its use and (iii) the Company has filed, or prior to the
Settlement Date will file, a prospectus supplement with respect to the
Purchaser's resale of the Shares.
The Escrow Agent is hereby directed to comply with the provisions of
Section 4 of the Escrow Agreement without further instruction by or notice to
the Company or the Purchaser.
BIOPHAN TECHNOLOGIES, INC. BONANZA CAPITAL MASTERFUND LTD.
By: _____________________________ By: _____________________________
Date: Date:
* Description of Adjustments:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
EXHIBIT B
DESIGNATION OF ESCROW SHARES ACCOUNT
EXHIBIT C
DESIGNATION OF SUBSCRIPTION FUNDS ACCOUNT
Wire Instructions
BOYLAN, BROWN, CODE, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
Trust Account
EXHIBIT D
DESIGNATION OF COMPANY ACCOUNT
EXHIBIT E
DESIGNATION OF PURCHASER ACCOUNT