ESCROW AGREEMENT
This ESCROW AGREEMENT is made as of this ___ day of ______________, 1997
by and among Physicians Care for Connecticut, Inc., a Connecticut corporation
with a principal place of business at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX
00000 (the "Company"), State Street Bank and Trust Company, a national bank
organized under the laws of the United States of America acting by and
through its Corporate Trust Department with a principal place of business at
000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, in its capacity as escrow agent
only (the "Escrow Agent") and those persons executing counterpart signature
pages hereto ("Subscribers").
W I T N E S S E T H:
WHEREAS, the Company and the Subscribers desire to create an escrow
account for the reasons set forth on Exhibit A attached hereto; and
WHEREAS, the Company and the Subscribers agree to appoint the
Escrow Agent as the escrow agent for such account, on the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of the mutual promises and obligations
set forth below, and for other valuable consideration the sufficiency and
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT AND CREATION OF ACCOUNT.
Contemporaneously, with the execution of this Agreement, the Company has
deposited with the Escrow Agent those assets listed on Exhibit B attached
hereto. The Company and the Subscribers hereby appoint the Escrow Agent as
escrow agent hereunder and direct it to hold those assets listed on Exhibit B
attached hereto. The Company and the Subscribers hereby appoint the Escrow
Agent as escrow agent hereunder and direct it to hold those assets described
in said Exhibit B, together with any additional assets which may be deposited
with the Escrow Agent from time to time to be held pursuant to this Agreement
and all income earned from investment of the assets described in Exhibit B
and any additions thereto (collectively the "Escrow Assets"), in a separate
account in the name of "Physicians Care" (the "Escrow Account"). The Escrow
Account shall be invested, administered and distributed in accordance with
the terms set forth below.
2. INVESTMENT OF ESCROW ASSETS. The Escrow Assets shall be invested in
accordance with the instructions set forth in Exhibit C attached hereto. Such
instructions may be modified only by a written certificate executed by an
authorized officer of the Company and delivered to the Escrow Agent. The
Escrow Agent shall make monthly accountings of such investments, the income
received therefrom, and the then existing balance of the Escrow Account to
the Company.
3. DISTRIBUTIONS FROM ESCROW ACCOUNT. The Escrow Agent shall make
distributions from the Escrow Account in accordance with the instructions set
forth in Exhibit D attached hereto. Such instructions may be modified only by
a written certificate executed by an authorized officer of the Company and
delivered
to the Escrow Agent. Notice of each disbursement from the Escrow Account
shall be provided to the Company within five (5) days of each such
disbursement. Upon the final distribution of all of the Escrow Assets, this
Agreement shall terminate and the Escrow Agent shall have no further
obligations or liabilities hereunder.
4. COMPENSATION OF ESCROW AGENT. In consideration of the services
provided by the Escrow Agent in the performance of its duties hereunder,
the Company agrees to reimburse the Escrow Agent for all costs and
expense incurred by it with respect to this Agreement, including reasonable
fees of legal counsel and other consultants, and to further compensate the
Escrow Agent in accordance with the fee arrangement described in Exhibit E
attached hereto.
5. LIMITATION OF ESCROW AGENT'S DUTIES.
(a) All parties hereto acknowledge that the duties of the Escrow Agent
hereunder are solely ministerial in nature, and have been requested for their
convenience. The Escrow Agent shall not be deemed to be the agent of
either/any party hereto, or to have any legal or beneficial interest in any
of the Escrow Assets. The parties agree that the Escrow Agent is a party to
the Escrow Agreement only and has no duties or responsibilities in connection
with any agreements related hereto. The parties agree that the Escrow Agent
shall not be liable for any act or omission taken or suffered in good faith
with respect to this Agreement unless such act or omission is the result of
the gross negligence or willful misconduct of the Escrow Agent.
(b) The Escrow Agent may consult with legal counsel and shall be fully
protected and incur no liability to any action or inaction taken in good
faith in accordance with the advice of such counsel. The Escrow Agent shall
have no responsibility for determining the genuineness or validity of any
certificate, document, notice or other instrument or item presented to or
deposited with it, and shall be fully protected in acting in accordance with
any written instruction given to it by any of the parties hereto and
reasonably believed by the Escrow Agent to have been signed by the proper
representatives of such parties.
(c) The Escrow Agent shall not be responsible for any losses relative to
the investment or liquidation of the Escrow Assets, provided such Escrow
Assets are invested and held in accordance with Section 2 above. The Escrow
Agent further shall not be responsible for assuring that the Escrow Assets
are sufficient for the disbursements contemplated under Section 3 above.
(d) The Escrow Agent shall not be required to institute legal proceedings
of any kind. The Escrow Agent shall not be required to defend any legal
proceedings which may be instituted against it with respect to this Agreement
unless requested to do so in writing by any of the parties hereto, and unless
and until it is indemnified by the requesting party to the satisfaction of
the Escrow Agent, in its sole discretion, against the cost and expense of
such defense,
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including without limitation the reasonable fees and expenses of its legal
counsel. If any conflicting demand shall be made upon the Escrow Agent, it
shall not be required to determine the same or take any action thereon and
may await settlement of the controversy by appropriate and nonappealable
legal proceedings. Upon the commencement of any action against or otherwise
involving the Escrow Agent with respect to this Agreement, or upon advice of
counsel under subsection (b) hereunder, the Escrow Agent shall be entitled to
interplead the matter of this escrow into a court of competent jurisdiction
in the State of Connecticut and, in such event, the Escrow Agent shall be
relieved of and discharged from any and all obligations and liabilities under
this Agreement. In any such action, the Escrow Agent shall be entitled to the
indemnities provided in Section 6 below.
6. INDEMNIFICATION OF ESCROW AGENT. The parties hereto jointly and
severally hold harmless and indemnify the Escrow Agent, its directors,
officers, employees and agent from and against all obligations, liabilities,
claims, suits, judgments, losses, damages, costs or expenses of any kind or
nature, including without limitation reasonable attorneys' fees, which may be
imposed on, incurred by, or asserted against the Escrow Agreement or the
Escrow Agent's duties hereunder. The foregoing indemnities shall survive the
resignation of the Escrow Agent or the termination of this Agreement. To the
extent the Escrow Agent is entitled to indemnification hereunder and such
indemnification is not timely paid, the parties agree the Escrow Agent shall
have - and hereby grant the Escrow Agent - a first lien for the payment of
such expenses upon the Escrow Assets in the Escrow Account.
7. RESIGNATION OF ESCROW AGENT. The Escrow Agent in its sole discretion
may resign at any time and be discharged of its duties by giving thirty (30)
days prior written notice to the parties hereto, and which notice shall
specify the date of such resignation. In the event the parties fail to
appoint a successor escrow agent and notify the Escrow Agent in writing of
such appointment within such thirty-day period, the Escrow Agent shall be
deemed to be solely a custodian of the Escrow Account without further duties
hereunder, and shall be entitled to petition a court of competent
jurisdiction to appoint a successor escrow agent. Upon the appointment of a
successor escrow agent by the parties hereunder or by such court, the Escrow
Agent's duties and liabilities under this Agreement shall terminate.
8. NOTICES. All demands, notices and communications hereunder shall be in
writing and shall be given prepaid, by hand-delivery, courier service or
certified or registered United States mail, return receipt requested, and
addressed to the party for whom intended, at the following addresses:
(a) If to the Company:
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: President
Phone: (000) 000-0000
Fax: (203)
(b) If to any Subscriber: to the address set forth on said
Subscriber's counterpart signature page hereto.
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(c) If to the Escrow Agent:
State Street Bank and Trust Company
Corporate Trust Administration
000 Xxxx Xxxxxx - XX/XX/0000
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn:___________________
Tel:
Fax:
9. GOVERNING LAW AND SEVERABILITY. This agreement shall be construed, and
the obligations, rights and remedies of the parties hereunder shall be
determined, in accordance with the laws of the State of Connecticut. The
invalidity or unenforceability of any particular provision of this Agreement
shall not affect the other provisions hereof, and the Agreement shall be
construed in all respects as if such invalid or unenforceable provision was
omitted.
10. GENERAL PROVISIONS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same instrument. This Agreement shall bind and
inure to the benefit of the parties hereto, and their respective successors
and assigns, and shall not be modified or amended except by a written
instrument executed by all parties hereto.
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PHYSICIANS CARE FOR CONNECTICUT, INC.
ESCROW AGREEMENT
COUNTERPART SIGNATURE PAGE
Reference is hereby made to that certain Escrow Agreement made as of _____
__, 1997 (the "Escrow Agreement") by and among Physicians Care for
Connecticut, Inc. ("the Company"), State Street Bank and Trust Company and
those subscribers executing this counterpart signature page to the Escrow
Agreement. Capitalized terms used as defined terms herein and not otherwise
defined shall have the meanings ascribed to such terms in the Purchase
Agreement.
The undersigned is purchasing Common Stock of the Company pursuant to a
Registration Statement on Form SB-2 of the Company (Reg. No. _______). By
execution of this Counterpart Signature Page to the Escrow Agreement, the
undersigned hereby agrees to be bound by and obtain the benefit of the rights
and restrictions of the Escrow Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart
Signature Page as of the ____ day of ___________, 1997.
SUBSCRIBER
______________________________________
Name:
AMOUNT PLACED INTO ESCROW: ____________
Notice Address:
______________________________________
Street Address
______________________________________
City State Zip Code
PHYSICIANS CARE FOR CONNECTICUT, INC.
By: ___________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, AS ESCROW AGENT ONLY
By: ___________________________________
Name:
Title:
EXHIBIT A
REASONS FOR ESCROW
The Subscribers have agreed to purchase from the Company shares of the
Company's Common Stock. A condition to the purchase and sale of said shares
is that the Company receive from Subscribers subscriptions to purchase an
aggregate of $8 million. Accordingly, monies received prior to achievement of
the $8 million threshold are to be placed into escrow to be realeased upon
and subject to actual achievement of the $8 million threshold.
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EXHIBIT B TO ESCROW AGREEMENT
ESCROW ASSETS
Monies provided from time to time by Newbury, Piret & Co., Inc. as
Subscription Agent for the Company, said monies to be in the form of checks
in varying amounts which shall be provided under cover expressly referencing
this Agreement.
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EXHIBIT C TO ESCROW AGREEMENT
INVESTMENT INSTRUCTIONS
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EXHIBIT D TO ESCROW AGREEMENT
DISBURSEMENT INSTRUCTIONS
Upon a certificate from a duly authorized officer of the Company, the
Escrow Agent will release Escrow Assets in accordance with the instructions
contained in said certificate.
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EXHIBIT E TO ESCROW AGREEMENT
FEE ARRANGEMENT
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