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Exhibit 2.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") is dated as of the 27th day
of June, 1997 among XXXXXX INTERNATIONAL INC., an Ohio corporation ("Xxxxxx") ,
BIO-MEDICAL RESEARCH HOLDINGS B.V., UTRECHTSE PARTICIPATIEMAATSCHAPPIJ B.V.,
X.X. XXXXXXXX, X.X. XXXXXXX, I.M. HOEPELMAN, Ph. X. XXXXXXXX, X. XXXXXXXXX, X.
XXXXXXXXX-ARSKA and L.G.W. STERKMAN (collectively, "Sellers"), and XXXXXXX,
MUETHING & XXXXXXX, P.L.L. as the escrow agent hereunder ("Escrow Agent").
BACKGROUND
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X. Xxxxxx and the Sellers are parties to the Stock Purchase Agreement
dated as of June 27, 1997 (the "Purchase Agreement"). Pursuant to the terms of,
and on the conditions set forth in, the Purchase Agreement, Xxxxxx or a wholly
owned subsidiary thereof shall acquire all of the issued and paid up capital
stock of U-Gene Research B.V., a Netherlands corporation ("U-Gene").
B. The parties desire to enter into this Escrow Agreement to provide
for an escrow of an Eight Percent (8%) Promissory Note in the principal amount
of NLG 3,000,000 (the "Escrow Note"; the Escrow Note is sometimes referred as
the "Deposit") to be released, subject to the terms of this Escrow Agreement, to
the Sellers on January 1, 1999 and to serve, in the interim, as security for the
Sellers' indemnification obligations under the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth
below and other good and valuable consideration, the parties hereto agree as
follows:
1. DESIGNATION AND DELIVERY. Xxxxxx and the Sellers hereby designate
Xxxxxxx, Muething & Xxxxxxx, P.L.L. as "Escrow Agent" under this Escrow
Agreement. Xxxxxx and the Sellers hereby deliver to the Escrow Agent a copy of
the Purchase Agreement, which agreement is attached hereto as Exhibit "A."
Xxxxxx, in accordance with the Purchase Agreement, hereby delivers to the Escrow
Agent the Deposit.
2. ESCROW AGENT AS CUSTODIAN; EXPENSES. The Escrow Agent shall, for all
purposes of this Escrow Agreement, be treated as and considered legally a
custodian. The Escrow Agent shall be entitled to rely conclusively upon the
written notice provided in Section 4 and may assume the genuineness of all
signatures and documents and the authority of all signatories. The Escrow Agent
shall have no liability except for gross negligence or willful misconduct in the
performance of its duties under this Escrow Agreement and shall not have any
liability for any action taken (or any failure to act) in good faith. Xxxxxx
shall assume and pay all costs and expenses of the Escrow Agent incurred in its
capacity as the Escrow Agent under this Escrow Agreement.
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3. RESIGNATION; DISAGREEMENTS.
(a) Escrow Agent (and any successor Escrow Agent) may at any
time resign as such by delivering the Escrow Fund to any successor
Escrow Agent designated by the other parties hereto in writing, or to
any court of competent jurisdiction as provided below. The resignation
of Escrow Agent will take effect on the earlier of: (a) the appointment
of a successor (including a court of competent jurisdiction); or (b)
the day which is thirty (30) days after the date of delivery of its
written notice of resignation to the other parties hereto. If at that
time Escrow Agent has not received a designation of a successor Escrow
Agent, Escrow Agent's sole responsibility after that time shall be to
retain and safeguard the Escrow Fund until receipt of a designation of
successor Escrow Agent or a joint written disposition instruction by
the other parties hereto or a final non-appealable order of a court of
competent jurisdiction.
(b) In the event of any disagreement between the other parties
hereto resulting in adverse claims or demands being made in connection
with the Escrow Fund or in the event that Escrow Agent is in doubt as
to what action it should take hereunder, Escrow Agent shall be entitled
to retain the Escrow Fund until Escrow Agent shall have received: (i) a
final non-appealable order of a court of competent jurisdiction
directing delivery of the Escrow Fund; or (ii) a written agreement
executed by the other parties hereto directing delivery of the Escrow
Fund, in which event Escrow Agent shall disburse the Escrow Fund in
accordance with such order or agreement. Any court order shall be
accompanied by a legal opinion by counsel for the presenting party
satisfactory to Escrow Agent to the effect that the order is final and
non-appealable. Escrow Agent shall act on such court order and legal
opinion without further question.
4. TERMINATION AND DISTRIBUTION OF THE ESCROW NOTE.
(a) This Escrow Agreement with respect to the Escrow Note
shall terminate upon the earlier of (i) January 1, 1999, or (ii) the
date upon which the Escrow Agent shall have distributed the proceeds of
the Escrow Note as provided herein;
(b) If, on or prior to January 1, 1999, Xxxxxx shall not have
delivered to the Escrow Agent and the Sellers a notice of claim with
respect to the Escrow Note based on breaches by the Sellers of
warranties and representations contained in the Purchase Agreement
("Notice of Claim-Representations"), the proceeds of the Escrow Note
shall be promptly released to the Sellers by the Escrow Agent;
(c) If, on or prior to January 1, 1999, Xxxxxx shall have
delivered a Notice of Claim-Representations to the Escrow Agent and the
Sellers, and the Sellers shall not have disputed the Notice of
Claim-Representations within fifteen (15) business days after its
receipt of the Notice of Claim-Representations, the Regular Escrow Note
(or such lesser amount as may be specified in Xxxxxx'x Notice of
Claim-Representations) shall promptly be
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released to Xxxxxx by the Escrow Agent (with any residue proceeds being
released to the Sellers);
(d) If, on or prior to January 1, 1999, Xxxxxx shall have
delivered a Notice of Claim-Representations to the Escrow Agent and the
Sellers which is timely disputed by the Sellers, the Escrow Agent shall
hold the Escrow Note until the dispute is resolved by a court of
competent jurisdiction and shall distribute the proceeds of the Regular
Escrow Note either pursuant to joint written instructions from Xxxxxx
and the Sellers or pursuant to court order or provided in Article 10 of
the Purchase Agreement.
(e) Xxxxxx'x Notice of Claim-Representations shall include the
amount claimed and the basis for such claim.
5. DUTIES OF ESCROW AGENT. The duties of Xxxxxxx, Xxxxxxxx & Xxxxxxx,
P.L.L. under this Escrow Agreement shall be entirely administrative and the
Escrow Agent shall not be liable to any third party as a result of any action or
omission taken or made by it, except for gross negligence or willful misconduct
in performing its duties. In the event of disagreement or dispute between Xxxxxx
and the Sellers with respect to disposition of the Escrow Note, the Escrow Agent
shall promptly initiate an appropriate legal proceeding to obtain a judicial
determination of the respective parties' rights to the Escrow Note. No rights
are intended to be granted to any third party hereunder. Xxxxxx and the Sellers
shall severally, and not jointly, (each being responsible for 50% of the
indemnity amount) indemnify, defend and hold harmless the Escrow Agent and
reimburse the Escrow Agent from and for any and all liability, costs and
expenses the Escrow Agent may suffer or incur by reason of its execution and
performance of this Escrow Agreement. The Escrow Agent shall have no duties
except those which are expressly set forth herein, and it shall not be bound by
any notice of a claim, or demand with respect thereto, or any waiver,
modification, amendment, termination or recision of this Escrow Agreement,
unless in writing received by it and signed by Xxxxxx and/or the Sellers.
In the event that the Escrow Agent shall find it necessary to
consult with counsel of its own choosing in connection with this Escrow
Agreement, the Escrow Agent shall not incur any liability for any action taken
in good faith in accordance with such advice. Xxxxxx and the Sellers, jointly
and severally, shall indemnify and hold harmless the Escrow Agent for any
liability, loss, claim or damage incurred by the Escrow Agent in connection with
this Escrow unless such liability, loss, claim or damage is the result of Escrow
Agent's own gross negligence or willful misconduct. This indemnification shall
survive termination of this Escrow Agreement.
Escrow Agent is not a party to, and is not bound by, any
agreement which may be evidenced by, or arise out of, the foregoing instruction,
other than as expressly set forth herein. In the event that any of the terms and
provisions of any other agreement (excluding any amendment to this Escrow
Agreement) between any of the parties hereto, conflict or are inconsistent with
any of the provisions of this Escrow Agreement, the terms and provisions of this
Escrow Agreement shall govern and control in all respects.
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6. NOTICES. All notices, consents or other communications required or
permitted to be given under this Escrow Agreement shall be in writing and shall
be deemed to have been duly given:
(a) when delivered personally,
(b) one (1) business day after being sent by an overnight
delivery service, postage or delivery charges prepaid, or
(c) on the date on which a telegram or facsimile is
transmitted to the parties at their respective addresses stated in the
Purchase Agreement.
Any party may change its address for notice and the address to which copies must
be sent by giving notice of the new addresses to the other parties in accordance
with this Section 6, except that any such change of address notice shall not be
effective unless and until received.
7. AMENDMENT. No amendment or modification of this Escrow Agreement
shall be effective unless in writing and signed by the parties. This Escrow
Agreement may not be terminated except in a written document signed by the
parties.
8. PARTIES IN INTEREST. This Escrow Agreement shall bind, benefit, and
be enforceable by and against each party hereto and their successors, assigns,
heirs and personal representatives. No party shall in any manner assign any of
its rights or obligations under this Escrow Agreement without the express prior
written consent of the other parties.
9. NO WAIVERS. No waiver with respect to this Escrow Agreement shall be
enforceable unless in writing and signed by the party against whom enforcement
is sought. Except as otherwise expressly provided herein, no failure to
exercise, delay in exercising, or single or partial exercise of any right, power
or remedy by any party, and no course of dealing between or among any of the
parties, shall constitute a waiver of, or shall preclude any other or further
exercise of the same or any other right, power or remedy.
10. SEVERABILITY. If any provision of this Escrow Agreement is
construed to be invalid, illegal or unenforceable, then the remaining provisions
hereof shall not be affected thereby and shall be enforceable without regard
thereto.
11. COUNTERPARTS. This Escrow Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall constitute
an original hereof, and it shall not be necessary in making proof of this Escrow
Agreement to produce or account for more than one original counterpart hereof.
12. CONTROLLING LAW. This Escrow Agreement is made under, and shall be
construed and enforced in accordance with, the laws of the State of Ohio
applicable to agreements made and to be performed solely therein, without giving
effect to principles of conflicts of law.
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13. DEFINITIONS. To the extent not specifically defined herein, all
terms used herein shall have the meanings ascribed to them in the Purchase
Agreement.
IN WITNESS WHEREOF, the parties have executed, or caused their duly
authorized representatives to execute, this Escrow Agreement on the date first
written above.
XXXXXX INTERNATIONAL INC.
By:/s/ Xxxxxx International Inc.
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Name:
Title:
BIO-MEDICAL RESEARCH HOLDINGS B.V.
By:/s/ Bio-Medical Research Holdings B.V.
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Name:
Title:
UTRECHTSE PARTICIPATIEMAATSCHAPPIJ
B.V.
By:/s/ Utrechtse Participatiemaatschappij B.V.
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Name:
Title:
/s/ X.X. Xxxxxxxx
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X.X. XXXXXXXX
/s/ X.X. Xxxxxxx
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X.X. XXXXXXX
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/s/ I.M. Hoepelman
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I.M. HOEPELMAN
/s/ Ph.X. Xxxxxxxx
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Ph.X. XXXXXXXX
/s/ X. Xxxxxxxxx
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X. XXXXXXXXX
/s/ X. Xxxxxxxxx-Arska
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X. XXXXXXXXX-ARSKA
/s/ L.G.W. Sterkman
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L.G.W. STERKMAN
Received and accepted:
XXXXXXX, XXXXXXXX & XXXXXXX, P.L.L.
Escrow Agent
By:
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Name:
Title: