ESCROW AGREEMENT
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This Escrow Agreement is made and entered into this 30th day of
December, 1997, by and among LASERSIGHT INCORPORATED, a Delaware corporation
(the "Stockholder"), VISION TWENTY-ONE, INC., a Florida corporation ("Vision
21"), and XXXXXXXX, LOOP & XXXXXXXX, LLP, as escrow agent (the "Escrow Agent").
R E C I T A L S
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A. The Stockholder and Vision 21 have executed that certain Stock Purchase
Agreement effective as of December 1, 1997 (the "Stock Purchase Agreement"),
pursuant to which Vision 21 has agreed to acquire all of the issued and
outstanding stock of MEC Health Care, Inc., a Maryland corporation, and LSI
Acquisition, Inc., a New Jersey corporation (the "Acquired Companies"), in
exchange for shares of Vision 21 common stock and cash, as more fully set forth
in the Stock Purchase Agreement.
B. The parties hereto desire that the transactions contemplated in the
Stock Purchase Agreement shall be consummated effective as of December 1, 1997
pending satisfaction of the terms and conditions set forth in the Stock Purchase
Agreement and this Escrow Agreement.
C. The Stock Purchase Agreement provides for the Adjustment Shares to be
held in escrow as a component of the Stock Purchase Consideration. The Escrow
Agent is willing to act as escrow agent in respect of the Adjustment Shares on
the terms and conditions set forth herein.
D. Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Stock Purchase Agreement.
NOW THEREFORE, for and in consideration of the mutual agreements, terms,
covenants and conditions herein and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. Recitals. The foregoing recitals are incorporated into and made an
integral part of this Escrow Agreement.
2. Escrow of Adjustment Shares. The Escrow Agent acknowledges receipt of
the Adjustment Shares delivered to it at closing pursuant to the Stock Purchase
Agreement. The Adjustment Shares and any other funds delivered by the
Stockholder to the Escrow Agent shall be held in escrow by the Escrow Agent, at
no charge for such services, until Escrow Agent either receives the appropriate
notice specified in Section 3 below or receives written instructions signed by
both the Stockholder and the Purchaser describing how the Adjustment Shares and
any other funds are to be disbursed.
3. Letter of Direction and Termination of Escrow.
(a) At the same time the Stockholder delivers to Vision 21 the Proposed
Stock Purchase Consideration Adjustment contemplated by Section 2.5(b) of the
Stock Purchase Agreement, the Stockholder shall provide a letter of direction to
the Escrow Agent (the "Stockholder Letter of Direction") setting forth the
number of Adjustment Shares which are to be delivered to the Stockholder in
accordance with Section 2.5(a) of the Stock Purchase Agreement. Subject to the
terms of Section 3(b) herein, the Escrow Agent shall deliver to the Stockholder
the number of Adjustment Shares described in the Stockholder Letter of Direction
on the first to occur of (i) the expiration of the thirty-first day after the
date the Stockholder Letter of Direction is delivered to the Escrow Agent, or
(ii) Vision 21 providing Escrow Agent with written instructions that the number
of Adjustment Shares described in the Stockholder Letter of Direction be
delivered to the Stockholder. Vision 21 agrees that if prior to the date which
is 30 days after the date the Stockholder supplies Vision 21 with the Proposed
Stock Purchase Consideration Adjustment it has determined that it agrees with
the calculation of the Proposed Stock Purchase Consideration Adjustment, then it
will promptly provide the Escrow Agent with the written notice described in
subsection (ii) of the immediately preceding sentence.
(b) If Vision 21 disputes the calculation of the Proposed Stock
Purchase Consideration Adjustment, then on or before the date which is 30 days
after the date on which the Stockholder delivers the Proposed Stock Purchase
Consideration Adjustment to Vision 21, Vision 21 shall so object to the
Stockholder and Escrow Agent in writing (the "Vision 21 Objection") setting
forth a specific description of the nature of the objection and the
corresponding adjustments Vision 21 believes should be made. If the Escrow Agent
has received the Vision 21 Objection it will not release any Adjustment Shares
until the first to occur of:
(i) receipt of a written notice signed jointly by Vision 21 and
the Stockholder setting forth the number of Adjustment Shares to
be delivered to the Stockholder; or
(ii) receipt of the notice of determination by the arbitrator to
be appointed pursuant to Section 2.5(b) of the Stock Purchase
Agreement as to how many Adjustment Shares are to be delivered to
the Stockholder.
Immediately upon receipt of the notice contemplated by subsection (i) or (ii) of
the immediately preceding sentence the Escrow Agent shall deliver the indicated
number of Adjustment Shares to the Stockholder.
(c) If less than all of the Adjustment Shares are to be delivered to
the Stockholder, the Escrow Agent and Vision 21 will utilize their best efforts
to instruct Vision 21's transfer agent to cancel the stock certificate
representing the Adjustment Shares and issue a new certificate representing that
number of Adjustment Shares to be delivered to the Stockholder. Adjustment
Shares which are not delivered to the Stockholder pursuant to this Section 3
shall be returned to Vision 21.
(d) The obligation of the Escrow Agent hereunder shall terminate
immediately upon the delivery of all Adjustment Shares and other funds held by
the Escrow Agent in accordance with the provisions of this Agreement and any
other agreement among the Stockholder, Vision 21 and the Escrow Agent.
4. Notices. All notices, demands or other communications given under or in
connection with this Escrow Agreement shall be in writing and sent by certified
mail, return receipt requested, to the parties at the following addresses or
such other addresses as the parties notify each other in writing:
If to the Stockholder: LaserSight Incorporated
00000 Xxxxxxxx Xxxx
Xx. Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Chief Executive Officer
With copies to: Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
Xxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
Attn: Xxxx Xxxxxxxxx, Esquire
If to Vision 21: Vision Twenty-One, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxx, CFO
With a copy to: Xxxxxxxx, Loop & Xxxxxxxx, LLP
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esquire
If to Escrow Agent: Xxxxxxxx, Loop & Xxxxxxxx, LLP
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
5. Escrow Agent. The following provisions shall govern the duties and
responsibilities and define the liabilities of the Escrow Agent hereunder:
(a) Limited Liability. It is agreed that the duties of the Escrow Agent
are only such as herein specifically provided, being purely ministerial in
nature, and that the Escrow Agent shall incur no liability whatsoever except for
willful misconduct. The Stockholder and Vision 21 release Escrow Agent from any
act done or omitted to be done by the Escrow Agent in good faith in the
performance of the Escrow Agent's duties hereunder.
(b) Responsibilities. Escrow Agent shall be under no responsibility
with respect to the Adjustment Shares to be held by it pursuant to this
Agreement other than to faithfully follow the instructions herein contained.
Escrow Agent may consult with counsel and shall be fully protected in any
actions taken in good faith, in accordance with such advice. Escrow Agent shall
not be required to defend any legal proceedings which may be instituted against
the Escrow Agent in respect to the subject matter of these instructions unless
requested to do so by the Stockholder and Vision 21 and indemnified to the
satisfaction of the Escrow Agent against the cost and expense of such defense.
Escrow Agent shall not be required to institute legal proceedings of any kind.
Escrow Agent shall have no responsibility for the genuineness or validity of any
documents or other items deposited with the Escrow Agent, and shall be fully
protected in acting in accordance with any written instructions given to the
Escrow Agent hereunder and believed by the Escrow Agent to have been signed by
the proper parties.
(c) Interpleader. If there is any dispute as to whether the Escrow
Agent is obligated to disburse the Adjustment Shares, or as to whom the
Adjustment Shares are to be delivered, the Escrow Agent will not be obligated to
make any delivery of said Adjustment Shares, but in such event may hold said
Adjustment Shares, until receipt by the Escrow Agent of any authorization in
writing signed by all of the persons having an interest in such dispute,
directing the disposition of the Adjustment Shares, or in the absence of such
authorization, the Escrow Agent may hold the Adjustment Shares until the final
determination of the rights of the parties in an appropriate proceeding. If such
written authorization is not given, or proceedings for such determination are
not begun and diligently continued, the Escrow Agent may, but is not required
to, bring an appropriate action or proceeding for leave to deposit the
Adjustment Shares in any Circuit Court in the State of Florida. In making
delivery of the Adjustment Shares in the manner provided for in this Agreement,
the Escrow Agent shall have no further liability in the matter, and the
Stockholder and Vision 21 shall be liable for all Escrow Agent's costs and fees,
to include, without limitation, attorney's fees related to the performance of
Escrow Agent's duties hereunder. Such liability will be divided evenly between
Vision 21 on the one hand and the Stockholder on the other hand.
(d) No Conflict. The Stockholder acknowledge that Escrow Agent acts as
Vision 21's legal counsel. The Stockholder and Vision 21 stipulate and agree
that, in the event a dispute arises between the parties concerning this
Agreement, Escrow Agent may continue to represent Vision 21 and the Stockholder
shall not request the disqualification of Escrow Agent as counsel for Vision 21
because Escrow Agent is also acting as the Escrow Agent hereunder.
(e) Indemnification. The Stockholder and Vision 21 agree to indemnify
and hold the Escrow Agent harmless from any and all matters, liabilities and
damages arising out of this Agreement or the Escrow Agent's duties and
obligations under this Agreement, including, without limitation, attorneys'
fees. Such indemnification will be divided evenly between Vision 21 on the one
hand and the Stockholder on the other hand.
6. Arbitration. Disputes, controversies or claims arising out of this
Agreement shall be resolved in accordance with the terms of Section 17.1 of the
Stock Purchase Agreement.
7. Agreement. This Agreement shall not be amended except by an instrument
in writing signed by all the parties hereto. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original. This
Agreement shall be binding on the parties hereto and their successors and
assigns. In the event that any provision of this Agreement is held to be illegal
or unenforceable, the remainder of this Agreement shall remain in full force and
effect. This Agreement shall be construed and enforced in accordance with the
laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have duly executed this Escrow
Agreement as of the date first written above.
"STOCKHOLDER"
LASERSIGHT INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
As Its: Chief Executive Officer
"VISION 21"
VISION TWENTY-ONE, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
As Its: Chief Financial Officer
"ESCROW AGENT"
XXXXXXXX, LOOP & XXXXXXXX, LLP
By: /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
