Exhibit 10.4
ESCROW AGREEMENT
This Escrow Agreement, dated as of February 11, 1999 (this
"Agreement"), is by and among LeukoSite, Inc., a Delaware corporation
("LeukoSite"), Xxxxxxx Xxxxxxx and Xxxx Xxxxxxxx in their capacity as
Stockholders' Representatives of the stockholders of CytoMed, Inc., a Delaware
corporation ("CytoMed") (in such capacity and each of their successors being
referred to collectively as the "Stockholders Representatives"), and State
Street Bank and Trust Company, a Massachusetts banking corporation, in its
capacity as escrow agent hereunder. The Stockholders' Representatives and
LeukoSite are sometimes referred to herein collectively as the "Interested
Parties."
LeukoSite, LeukoSite Merger Corporation, a Delaware corporation and a
wholly owned subsidiary of LeukoSite ("Merger Sub"), and CytoMed, have entered
into an Agreement and Plan of Merger and Reorganization dated as of January 4,
1999 (the "Merger Agreement"), pursuant to which Merger Sub will be merged with
and into CytoMed, and CytoMed, as the surviving corporation in such merger, will
become a wholly owned subsidiary of LeukoSite, all subject to the terms and
conditions set forth in the Merger Agreement (the "Merger"). It is a condition
precedent to LeukoSite's obligation to consummate the Merger that the
Stockholders' Representatives (as defined in the Merger Agreement) and the
Escrow Agent (as defined below) enter into this Agreement.
The parties hereby agree as follows:
1. CERTAIN DEFINED TERMS. Capitalized terms used and not otherwise
defined herein have the respective meanings ascribed to them in the Merger
Agreement. In addition, as used in this Agreement:
"Escrow Agent" means State Street Bank and Trust Company or any of its
successors appointed pursuant to Section 9 hereof, in each case in the capacity
of escrow agent hereunder.
"Escrowed Securities" means (i) that number of shares of LeukoSite
Stock that are delivered to the Escrow Agent pursuant to Section 3 hereof, and
(ii) any securities received in respect thereof (whether by dividend or
subdivision, upon conversion, exchange, redemption or otherwise), including,
without limitation, any shares of LeukoSite Common Stock issued upon conversion
of shares of LeukoSite Series A Preferred Stock held in escrow pursuant to this
Agreement.
"Escrow Fund" means (i) the Escrowed Securities, (ii) any dividends,
distributions or income earned thereon and (iii) any other accessions thereto,
in each case to the extent held in escrow hereunder as of the relevant time of
reference.
-2-
2. APPOINTMENT OF ESCROW AGENT. LeukoSite and the Stockholders'
Representative hereby appoint State Street Bank and Trust Company to act as
Escrow Agent hereunder, and State Street Bank and Trust Company hereby accepts
such appointment and agrees to serve in such capacity subject to the terms and
conditions set forth herein.
3. ESCROW FUND.
(a) ESTABLISHMENT OF ESCROW FUND. At the Effective Time of the Merger,
LeukoSite shall deliver directly to the Escrow Agent, on behalf of the
Stockholders, a stock certificate registered in the name State Street Bank and
Trust Company in its capacity as escrow agent hereunder for the benefit of the
Stockholders, representing the aggregate number of shares of LeukoSite Series A
Preferred Stock indicated with respect to the Stockholders in the attached
SCHEDULE 1, all to be held in escrow by the Escrow Agent. The Escrow Agent shall
have no responsibility for the genuineness, validity, market value, title or
sufficiency for any intended purpose of the Escrowed Securities. The aggregate
number of shares of LeukoSite Series A Preferred Stock represented by the stock
certificate to be so delivered by LeukoSite to the Escrow Agent at the Effective
Time shall be equal to twenty percent (20%) of the Aggregate Base Consideration
Shares issued in connection with the Merger at the Effective Time. The
Stockholders hereby consent to: (i) the establishment of this escrow to secure
the Stockholders indemnification obligations contained in the Merger Agreement
in the manner set forth therein, (ii) the appointment of the Stockholders'
Representatives as their representatives for purposes of this Agreement and as
attorney-in-fact and agent for and on behalf of each Stockholder, and the taking
by the Stockholders' Representative of any and all actions and the making of any
decisions required or permitted to be taken or made by them under this Agreement
and (c) all of the other terms, conditions and limitations of this Agreement.
(b) DIVIDENDS, ETC. ON ESCROWED SECURITIES. Until such time, if any,
when the Escrowed Securities may be required hereunder to be delivered to a
person entitled to indemnification under the Merger Agreement, such Escrowed
Securities will remain for the benefit of the respective Stockholders. The
Escrow Agent shall be under no obligation to preserve, protect or exercise
rights in the Escrowed Securities, and shall be responsible only for reasonable
measures to maintain the physical safekeeping thereof and otherwise for the
performance and observance of such duties on its part as are expressly set forth
in this Agreement; except that it shall, at the written request of the
Stockholders' Representatives given to the Escrow Agent at least three Business
Days prior to the date on which the Escrow Agent is requested therein to take
any action, deliver to the Stockholders' Representative a proxy or other
instrument in the form supplied to it by the Stockholders' Representative for
voting or otherwise exercising any right of consent with respect to any of the
Escrowed Securities held by it hereunder, to
-3-
authorize therein the Stockholders' Representatives to exercise such voting or
consent authority in respect of the Escrowed Securities. The Escrow Agent shall
not be responsible for forwarding to any Party, notifying any Party with respect
to, or taking any action with respect to, any notice, solicitation or other
document or information, written or otherwise, received from an issuer or other
person with respect to the Escrowed Securities, including by not limited to,
proxy material, tenders, options, the pendency of calls and maturities and
expiration of rights. Any dividends or other distributions in respect of
Escrowed Securities, and any securities issued upon the conversion, redemption,
or exchange of the Escrowed Securities, will be deposited with the Escrow Agent
in escrow hereunder immediately upon payment or issuance, accompanied by written
notice to the Escrow Agent identifying such deposit of dividends or other
distributions.
(c) TAX LIABILITIES. The Stockholders shall be responsible for any tax
liability and tax reporting obligations attributable to (i) the placement of the
Escrowed Securities in the escrow contemplated hereby and (ii) the payment of
any dividends or other amounts payable (including interest or other income
earned but not distributed in any tax year) to the Stockholders with respect to
the Escrowed Shares. Each of the Stockholders shall provide the Escrow Agent
with an executed IRS Form W-9 or W-8, as applicable.
(c) TAX INDEMNIFICATION BY THE STOCKHOLDERS. With respect to any
payment or distribution of the Escrow Fund to any of the Stockholders, each
Stockholder agrees (i) to assume any and all obligations imposed now or
hereafter by any applicable tax law with respect to any payment or distribution
of the Escrow Fund to such Stockholder or with respect to the performance of
other activities under this Agreement to the extent that such activities pertain
to such Stockholder, and (ii) to instruct the Escrow Agent in writing with
respect to the Escrow Agent's responsibility for withholding and other taxes,
assessments or other governmental charges pertaining to such Stockholder, and to
instruct the Escrow Agent with respect to any certifications and governmental
reporting that may be required under any laws or regulations that may be
applicable with respect to such Stockholder in connection with the performance
by the Escrow Agent of its duties and responsibilities under this Agreement. The
Stockholders, jointly and severally, agree to indemnify and hold the Escrow
Agent harmless from any liability or obligation on account of taxes,
assessments, additions for late payment, interest, penalties, expenses and other
governmental charges that may be assessed or asserted against the Escrow Agent
in connection with or relating to any payment made to the Stockholders or other
activities performed under the terms of this Agreement with respect to the
Stockholders, including without limitation any liability for the withholding or
deduction of (or the failure to withhold or deduct) the same, and any liability
for failure to obtain proper certifications or to report properly to
governmental authorities in connection with this Agreement, including costs and
expenses (including reasonable legal fees and expenses), interest and penalties.
The foregoing indemnification and agreement to hold harmless shall
-4-
survive the termination of this Agreement. Notwithstanding the joint and several
nature of the foregoing indemnification and agreement to hold harmless, the
Stockholders hereby agree that, as among them, each Stockholder shall ultimately
be liable and responsible only for that portion of any aggregate indemnification
payment or obligation owed to the Escrow Agent under this Section 3(d)
pertaining to any taxes, assessments, additions for late payment, interest,
penalties, expenses and other governmental charges that may be assessed or
asserted against the Escrow Agent in connection with or relating to any payment
made to such Stockholder or other activities performed under the terms of this
Agreement for the benefit of, or otherwise relating or pertaining to, such
Stockholder.
(e) TAX INDEMNIFICATION BY LEUKOSITE. With respect to any payment or
distribution of the Escrow Fund to LeukoSite, LeukoSite agrees (i) to assume any
and all obligations imposed now or hereafter by any applicable tax law with
respect to any payment or distribution of the Escrow Fund to LeukoSite or with
respect to the performance of other activities under this Agreement to the
extent that such activities pertain to LeukoSite, and (ii) to instruct the
Escrow Agent in writing with respect to the Escrow Agent's responsibility for
withholding and other taxes, assessments or other governmental charges
pertaining to LeukoSite, and to instruct the Escrow Agent with respect to any
certifications and governmental reporting that may be required under any laws or
regulations that may be applicable with respect to LeukoSite in connection with
the performance by the Escrow Agent of its duties and responsibilities under
this Agreement. LeukoSite agrees to indemnify and hold the Escrow Agent harmless
from any liability or obligation on account of taxes, assessments, additions for
late payment, interest, penalties, expenses and other governmental charges that
may be assessed or asserted against the Escrow Agent in connection with or
relating to any payment made to LeukoSite or other activities performed under
the terms of this Agreement with respect to LeukoSite, including without
limitation any liability for the withholding or deduction of (or the failure to
withhold or deduct) the same, and any liability for failure to obtain proper
certifications or to report properly to governmental authorities in connection
with this Agreement, including costs and expenses (including reasonable legal
fees and expenses), interest and penalties. The foregoing indemnification and
agreement to hold harmless shall survive the termination of this Agreement.
4. CLAIMS AGAINST ESCROW FUND.
(a) NOTICE OF CLAIM. LeukoSite will give the Escrow Agent and the
Stockholders' Representatives written notice (a "Notice of Claim") of any claim
for indemnification under Section 14 of the Merger Agreement to be paid from the
Escrow Fund (a "Claim"), indicating the amount of indemnification sought and
specifying in reasonable detail the factual basis therefor to the extent then
known to LeukoSite. If the Damages for which indemnification is sought are
liquidated, LeukoSite's Notice of Claim will so state and a charge in such
amount will be deemed asserted against the Escrow Fund. If such Damages are not
liquidated,
-5-
LeukoSite's Notice of Claim will so state and will contain its good-faith
estimate of the maximum amount of such Claim, and in such event, a charge in
such amount will be deemed asserted against the Escrow Fund. LeukoSite will not
be entitled to give any Notice of Claim after the date on which all of the
Escrow Fund is released from the escrow hereunder pursuant to, and in accordance
with, the provisions of Section 5(a) hereof.
(b) OBJECTION TO CLAIM. If within ten business days after the date a
Notice of Claim is delivered to the Escrow Agent and the Stockholders'
Representatives in accordance with Section 4(a), the Stockholders'
Representatives advise the Escrow Agent in writing that they object to such
Notice of Claim (or a portion thereof), stating in reasonable detail the basis
of their objection, then unless and until the Stockholders' Representatives
withdraw such objection in writing, the Claim ( or the portion thereof so
disputed, as the case may be) to which such Notice of Claim relates will be
deemed to be a "Disputed Claim"; otherwise, such Claim (or portion thereof not
so disputed, as the case may be) will be deemed to be an "Allowed Claim."
(c) PAYMENT OF ALLOWED CLAIMS. As promptly as is practicable, and in
any event within fifteen days, after a Claim (or a portion thereof) is
determined to be an Allowed Claim, or if at the time a Notice of Claim with
respect to such Claim (or portion thereof) was given in accordance with Section
4(a), such Claim was not liquidated in amount, then as promptly as practicable
after the later to occur of (i) such Claim (or portion thereof) becoming an
Allowed Claim in accordance with the provisions of Section 4(b) above and (ii)
such Claim (or portion thereof) becoming liquidated and written notice thereof
is given by LeukoSite to the Escrow Agent and the Stockholders' Representatives,
the Escrow Agent will release from escrow and deliver to LeukoSite a number of
Escrowed Securities (to the extent Escrowed Securities remain available)
sufficient to satisfy such Claim (or portion thereof), registered to LeukoSite.
For purposes of calculating the number of Escrowed Securities to be delivered to
LeukoSite pursuant to this Section 4(c), the cash value of each share of
LeukoSite Stock and of the Merger Conversion Shares shall be conclusively deemed
to equal $11.88 per share (such dollar figure to be proportionately adjusted to
reflect stock splits, stock dividends, reverse stock splits, and other
recapitalizations, reorganizations and similar events affecting LeukoSite Common
Stock and occurring after the date of this Agreement, notice of which having
been given to the Escrow Agent.).
(d) NO PAYMENT OF DISPUTED CLAIMS. Except as otherwise expressly
provided herein, the Escrow Agent will not release from escrow or deliver any
part of the Escrow Fund in respect of any Disputed Claim.
(e) PAYMENT OF INCOME, ETC. Except as otherwise expressly provided
herein, to the extent that any amount of the money and/or property originally
deposited into escrow hereunder is distributed to LeukoSite or any Stockholder,
all
-6-
income and other accessions with respect to such amount (including without
limitation interest and dividends) will be distributed to the same party and at
the same time.
(f) INVESTMENT PROVISIONS. The Escrow Agent shall invest the Escrowed
Funds at, and pursuant to, the joint written direction of LeukoSite and the
Stockholders' Representatives in Eligible Investments and shall not be
responsible for or liable for any loss accruing from any investment made in
accordance herewith. "Eligible Investments" shall mean (i) obligations issued or
guaranteed by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of America
is pledged in support thereof); (ii) obligations (including certificates of
deposit and banker's acceptances) of any domestic commercial bank having capital
and surplus in excess of $500,000,000; (iii) repurchase obligations for
underlying securities of the type described in clause (i); (iv) shares of money
market funds at least 95% of the assets of which constitute obligations of the
type described in clause (i) above. No investment shall have a term of more than
90 days. If otherwise qualified, obligations of the Escrow Agent shall qualify
as Eligible Investments. Absent its timely receipt of such specific written
investment instructions from LeukoSite and the Stockholders' Representatives,
the Escrow Agent shall have no obligation or duty to invest (or otherwise pay
interest on) the Escrow Funds. All earnings received from the investment of the
Escrow Funds shall be credited to, and shall become a part of, the Escrow Fund
(and any losses on such investments shall be debited to the Escrow Account). The
Escrow Agent shall have no liability for any investment losses, including any
losses on any investment required to be liquidated prior to maturity in order to
make a payment required hereunder.
5. RELEASE AND DELIVERY OF ESCROW FUND.
(a) ON CUT-OFF DATE. If LeukoSite has not delivered a Notice of Claim
to the Escrow Agent and the Stockholders' Representatives on or prior to
December 31, 1999 (the "Cut-Off Date"), the Escrow Agent will release all of the
remaining Escrow Fund from escrow promptly thereafter, and deliver it to the
Stockholders PRO RATA in accordance with their respective number of shares of
LeukoSite Series A Preferred Stock initially deposited in escrow as set forth on
SCHEDULE 1. If LeukoSite has delivered a Notice of Claim to the Escrow Agent and
the Stockholders' Representatives on or prior to December 31, 1999, and such
Notice of Claim is received by the Escrow Agent on or prior to such date, then
the Escrow Agent will release all of the remaining Escrow Fund from escrow on
the second anniversary of the Closing Date and deliver it to the Stockholders
PRO RATA in accordance with their respective number of shares of LeukoSite
Series A Preferred Stock initially deposited in escrow as set forth on SCHEDULE
1, PROVIDED, that the Escrow Agent will retain and continue to hold in escrow
such portion, if any, of the Escrow Fund with respect to which LeukoSite has
asserted any Claim(s) in
-7-
accordance with this Agreement which have not been resolved (it being understood
that such portion, if any, of the Escrow Fund will continue to be subject to the
escrow contemplated under this Agreement and will be released from such escrow
only in accordance with the provisions of Section 4(c), Section 5(b) or Section
5(c) hereof). Notwithstanding anything in this Section 5(a) to the contrary, a
Notice of Claim delivered by LeukoSite and received by the Escrow Agent and the
Stockholders' Representatives on or prior to December 31, 1999, in connection
with any adjustment in the Aggregate Base Consideration Shares pursuant to
Section 3.7(e) of the Merger Agreement shall not be taken into account in
determining whether the Escrow Agent should release all of the remaining Escrow
Fund from escrow on December 31, 1999 in accordance with the provisions set
forth in this Section 5(a).
(b) AS DIRECTED BY A COURT. Except as otherwise specifically provided
herein, the Escrow Agent will retain the portion of the Escrow Fund representing
disputed claims until such time or times as it receives notice that a judgment,
order, or decree has been entered or made by any court with respect to the
disposition of the Escrow Fund (or any portion thereof) that, in the opinion of
legal counsel chosen by the Escrow Agent, is binding upon the Escrow Agent and
not subject to further appeal or modification before compliance is required
therewith, in which case the Escrow Agent will comply with such judgment, order,
or decree.
(c) AS DIRECTED BY THE PARTIES. Notwithstanding any other provision of
this Agreement, the Escrow Agent will release all or any part of the Escrow Fund
and deliver it in accordance with written instructions duly executed (in
counterparts or otherwise) by LeukoSite and the Stockholders' Representatives.
6. LIABILITY OF ESCROW AGENT. This Agreement is entered into by the
Escrow Agent as an accommodation to, and solely for the benefit of, LeukoSite
and the Stockholders; and no other person will have any right to enforce or
receive the benefits of this Agreement other than enforcement hereof by the
Stockholders' Representatives on behalf of the Stockholders. The Escrow Agent
will be obligated to perform only such duties as are expressly set forth in this
Agreement on its part to be performed, each of which are ministerial (and shall
not be construed to be fiduciary) in nature, and no implied duties or
obligations of any kind shall be read into this Agreement against or on the part
of the Escrow Agent, and will not be liable to any person or entity whatsoever,
except for actual damages caused by its own gross negligence or willful
misconduct, and in any event will not be liable for any punitive incidental or
consequential damages, including without limitation lost profits. Each
Interested Party acknowledges and agrees that the Escrow Agent shall not be
responsible for the Merger Agreement or for determining or compelling compliance
therewith and shall not be obligated to take any legal or other action hereunder
which might in its judgment involve or cause it to incur any expense or
liability unless it shall have been furnished with acceptable indemnification.
The Escrow Agent shall have no more or less responsibility or liability on
account of any
-8-
action or omission of any book-entry depository, securities intermediary or
other subescrow agent employed by the Escrow Agent than any such book-entry
depository, securities intermediary or other subescrow agent has to the Escrow
Agent, except to the extent that such action or omission of any book-entry
depository, securities intermediary or other subescrow agent was caused by the
Escrow Agent's own gross negligence, bad faith or wilful misconduct in breach of
this Agreement.
7. INDEMNIFICATION OF ESCROW AGENT. Each of LeukoSite and the
Stockholders, jointly and severally, will indemnify, defend, and hold harmless
the Escrow Agent (and its respective officers, directors, stockholders,
partners, employees, agents, and other representatives) from and against all
damages, losses, costs and expenses (including, without limitation, reasonable
attorney's fees and other defense costs and expenses ) related to or arising,
directly or indirectly, out of any claim made by any Interested Party, any
Stockholder or any third party against the Escrow Agent in connection with this
Agreement or with the administration by the Escrow Agent of its duties
hereunder, excepting only such damages, losses, costs and expenses (including,
without limitation, attorney's fees and other defense costs and expenses ) as
may be finally determined by a court of competent jurisdiction to have been
caused directly by the Escrow Agent's gross negligence or willful misconduct.
The foregoing indemnification and agreement to hold harmless shall survive the
termination of this Agreement.
8. RELIANCE BY ESCROW AGENT. In the absence of gross negligence or
willful misconduct, the Escrow Agent will not incur any liability for (a) acting
or failing to act in good-faith reliance upon any written instruction
(including, without limitation, wire transfer instructions, whether incorporated
herein or provided in a separate written instruction), notice, or other document
required or permitted under this Agreement and believed by it to be genuine and
to have been signed by the proper person(s), without any obligation on its part
to make any additional inquiry or investigation, and (b) acting or failing to
act in good-faith reliance upon the advice of legal counsel.
9. RESIGNATION OR REMOVAL OF ESCROW AGENT. The Escrow Agent will have
the right to resign as Escrow Agent hereunder at any time, upon 30 days prior
written notice to LeukoSite and the Stockholders' Representatives; and the
Escrow Agent may be removed by written agreement of LeukoSite and the
Stockholders' Representatives delivered to the Escrow Agent, which removal will
be effective not earlier than 30 days after such delivery to the Escrow Agent,
unless the Escrow Agent consents in writing to an earlier effective time. Before
the effectiveness of any such resignation or removal, LeukoSite and the
Stockholders' Representatives will jointly appoint another person, reasonably
acceptable to both of them, to act in the resigning or removed Escrow Agent's
stead hereunder. If LeukoSite and the Stockholders' Representatives fail to
agree upon and appoint such successor Escrow Agent before the effectiveness of
any such resignation or removal, then unless
-9-
otherwise instructed by written notice duly executed by LeukoSite and the
Stockholders' Representatives, the resigning or removed Escrow Agent will
deposit the Escrow Fund with a court of competent jurisdiction and will
institute an interpleader proceeding against LeukoSite and the Stockholders,
upon which such Escrow Agent will be relieved of all future obligations
hereunder.
10. TERMINATION, AMENDMENT, AND MODIFICATION. This Agreement will
terminate when the entire Escrow Fund has been distributed in accordance with
the terms hereof. Prior to such time, this Agreement may be terminated, amended,
or modified only by a written agreement (in counterparts or otherwise) duly
executed and delivered by LeukoSite, the Stockholders' Representatives and the
Escrow Agent.
11. DISPUTES. In the event that there arises any dispute with respect
to this Agreement or any transaction or matter in connection with this
Agreement, including without limitation the respective rights of LeukoSite and
the Stockholders to the release or return of all or any part of the Escrow Fund,
the Escrow Agent is authorized (but will not be required) (a) to retain
possession of all or any part of the Escrow Fund until such dispute is finally
resolved, including without limitation, resolution by mutual agreement of the
disputants or by the final judgment, order, or decree of a court of competent
jurisdiction after the time for appeal has expired and without any rights of
appeal having been perfected; and/or (b) to deposit all or any part of the
Escrow Fund with a court of competent jurisdiction and institute an interpleader
proceeding against LeukoSite and the Stockholders, upon which the Escrow Agent's
future obligations under this Agreement will immediately terminate. The Escrow
Agent is authorized (but will not be required) to institute, prosecute,
intervene in, and/or defend any such proceedings.
12. NOTICES; WIRING INSTRUCTIONS.
(a) All notices, requests, payments, instructions, or other documents
to be given hereunder will be in writing or by written telecommunication, and
will be deemed to have been duly given if (i) delivered personally (effective
upon delivery), (ii) mailed by registered or certified mail, return receipt
requested, postage prepaid (effective five business days after dispatch), (iii)
sent by a reputable, established courier service that guarantees next business
day delivery (effective the next business day), or (iv) sent by telecopier
followed within 24 hours by confirmation by one of the foregoing methods
(effective upon receipt of the telecopy in complete, readable form), addressed
as follows (or to such other address as the recipient party may have furnished
to the sending party for the purpose pursuant to this section):
-10-
(i) If to LeukoSite, to:
LeukoSite, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxxxxx, President and CEO
Telecopier No. (000) 000-0000
with a copy sent at the same time and by the same means to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxx X. Xxxx, Esq.
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No. (000) 000-0000
(ii) If to any of the Stockholders and/or the Stockholders'
Representatives, to the Stockholders' Representatives at:
Xxxxxxx Xxxxxxx
Q.E.D. Technologies
00 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Telecopier No. (000) 000-0000
and
Xxxx Xxxxxxxx
Oracle Partners L.P.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.
----------------
with a copy sent at the same time and by the same means to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxx Xxxxxxxx Xxxxxx, Esq.
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No. (000) 000-0000
-11-
(iii) If to the Escrow Agent, to:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust Department
Attention: LeukoSite/CytoMed Escrow
Telecopier No. (000) 000-0000
(b) Any funds to be paid to or by the Escrow Agent hereunder shall be
sent by transfer pursuant to the following instructions (or by such method of
payment and pursuant to such instruction as may have been given in advance and
in writing to or by the Escrow Agent, as the case may be, in accordance with
Section 12(a) above):
If to LeukoSite:
Bank: Fleet National Bank
ABA: #000000000
A/C#: #050151-1072-00101
Ref: LeukoSite, Inc.
If to the Escrow Agent:
Bank: State Street Bank and Trust Company
ABA#: 0110 0002 8
A/C#: 0000-000-0
Attn: Corporate Trust Department
Ref: LeukoSite/CytoMed Escrow
13. GOVERNING LAW. This Agreement will be governed by and interpreted
and construed in accordance with the internal laws of Commonwealth of
Massachusetts, as applied to contracts under seal made, and entirely to be
performed, within Massachusetts, and without reference to principles of
conflicts or choice of laws.
14. COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered will be an
original, but all of which together will constitute one and the same agreement.
In pleading or proving this Agreement, it will not be necessary to produce or
account for more than one such counterpart.
15. ENTIRE AGREEMENT. This Agreement, together with the Merger
Agreement and the Indemnification Agreement, contains the entire understanding
and agreement among the parties, and supersedes any prior understandings or
-12-
agreements among them, or between or among any of them, with respect to the
subject matter hereof.
16. CAPTIONS. The captions of sections or subsections of this Agreement
are for reference only and will not affect the interpretation or construction of
this Agreement.
17. FEES AND EXPENSES. The Stockholders and LeukoSite each agree,
jointly and severally, (i) to pay or reimburse the Escrow Agent for its
reasonable attorney's fees and expenses incurred in connection with the
preparation of this Agreement and (ii) to pay the Escrow Agent's compensation
for its normal services hereunder in accordance with the fee schedule attached
hereto as SCHEDULE 2, which may be subject to change hereafter on an annual
basis. The Stockholders and LeukoSite each agree, jointly and severally, to
reimburse the Escrow Agent on demand for all costs and expenses incurred in
connection with the administration of this Agreement or the escrow created
hereby or the performance or observance of its duties hereunder which are in
excess of its compensation for normal services hereunder, including without
limitation, payment of any reasonable legal fees and expenses incurred by the
Escrow Agent in connection with the resolution of any claim by any party
hereunder. Without altering or limiting the joint and several liability of any
of the Stockholders or LeukoSite to the Escrow Agent hereunder, as amongst
themselves, each of LeukoSite, on the one hand, and the Stockholders, on the
other hand, will be responsible for one-half of the fees and expenses of Escrow
Agent incurred in connection with the performance of its duties hereunder.
18. BENEFITS OF AGREEMENT; NO ASSIGNMENTS; NO THIRD-PARTY
BENEFICIARIES.
(a) This Agreement will bind and inure to the benefit of the parties
hereto and their respective heirs, successors, and permitted assigns.
(b) No party will assign any rights or delegate any obligations
hereunder without the consent of the other parties, other than in the case of
LeukoSite, in connection with a (i) merger or consolidation of LeukoSite or (ii)
sale of the assets to which this transaction relates (provided that, in the
event of such sale of assets, the buyer agrees in writing with the Stockholders'
Representatives to be bound by the obligations of LeukoSite under the Merger
Agreement) and any attempt to do so will be void.
(c) Nothing in this Agreement is intended to or will confer any rights
or remedies on any person other than the parties hereto and their respective
heirs, successors, and permitted assigns.
-13-
19. EQUITABLE RELIEF. Each of the parties hereby acknowledges that any
breach by him or it of his or its obligations under this Agreement would cause
substantial and irreparable damage to the parties, and that money damages would
be an inadequate remedy therefor, and accordingly, acknowledges and agrees that
each other party will be entitled to an injunction, specific performance, and/or
other equitable relief to prevent the breach of such obligations.
20. CONSTRUCTION. The language used in this Agreement is the language
chosen by the parties to express their mutual intent, and no rule of strict
construction will be applied against any party.
21. WAIVERS. No waiver of any breach or default hereunder will be valid
unless in a writing signed by the waiving party. No failure or other delay by
any party exercising any right, power, or privilege hereunder will be or operate
as a waiver thereof, nor will any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power,
or privilege.
22. CONSENT TO JURISDICTION AND SERVICE. Each of the parties hereto
hereby absolutely and irrevocably consents and submits to the jurisdiction of
the courts in the Commonwealth of Massachusetts and of any Federal court located
in said Commonwealth in connection with any actions or proceedings brought
against any of the parties hereto (or each of them) arising out of or relating
to this Escrow Agreement. In any such action or proceeding, each party hereto
hereby absolutely and irrevocably (i) waives any objection to jurisdiction or
venue, (ii) waives personal service of any summons, complaint, declaration or
other process, and (iii) agrees that the service thereof may be made by
certified or registered first-class mail directed to such party, as the case may
be, at its address in accordance with Section 12 hereof.
23. FORCE MAJEURE. The Escrow Agent shall not be responsible for delays
or failures in performance resulting from acts beyond its control. Such acts
shall include but not be limited to acts of God, strikes, lockouts, riots, acts
of war, epidemics, governmental regulations superimposed after the fact, fire,
communication line failures, computer viruses, power failures, earthquakes or
other disasters.
24. REPRODUCTION OF DOCUMENTS. This Agreement and all documents
relating thereto, including, without limitation, (a) consents, waivers and
modifications which may hereafter be executed, and (b) certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, optical disk, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of
-14-
business, and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-15-
IN WITNESS WHEREOF, this Escrow Agreement has been executed and
delivered under seal as of the date first above written.
LEUKOSITE: LEUKOSITE, INC.
By
---------------------------------
Name:
Title:
ESCROW AGENT: STATE STREET BANK AND TRUST
COMPANY
By
--------------------------------
Name:
Title:
STOCKHOLDERS'
REPRESENTATIVES: ----------------------------------
Xxxxxxx Xxxxxxx, in his capacity
as a Stockholders' Representative
----------------------------------
Xxxx Xxxxxxxx, in his capacity
as a Stockholders' Representative
SCHEDULE 1
STOCKHOLDER NO. OF AGGREGATE BASE CONSIDERATION SHARES
DEPOSITED IN ESCROW
Atlas Venture Fund II, L.P. 9,002.40
Atlas Venture Europe Fund B.V. 7,245.48
CIP Capital, L.P. 7,319.02
HealthCare Ventures III, L.P. 9,971.33
HealthCare Ventures IV, L.P. 3,052.94
Gateway Venture Partners III L.P. 3,090.37
RHO Management Trust II 2,814.73
Xxxxxx Trust 1,188.81
New York Life Insurance Company 19,923.95
Xxxxxxx Laboratories (Ireland) Ltd. 10,479.56
Xxxxxxx X. Xxxxxxxx 112.84
Xxxxxxx X. Xxxxxx 100.67
Xxxxxx X. Xxxx 201.35
Xxxxxxxx Ventures Int. Life Sciences Fund LP1 18,628.86
Xxxxxxxx Ventures Int. Life Sciences Fund LP2 4,139.77
Xxxxxxxx Ventures Int. Life Sciences Fund
Trust 6,557.42
Xxxxxxxx Ventures Int. Life Sciences Co-
Investment Scheme 147.45
Oracle Strategic Partners, L.P. 44,209.97
Biotechnology Development Fund, LP 9,824.44
WPG-Xxxxxx, Xxxxx Fund, L.P. 8,917.63
WPG-Xxxxxx Overseas, L.P. 513.85
WPG-Xxxxxx, Present Fund, L.P. 335.59
WPG-Xxxxxx, Present QP Fund, L.P. 36.94
WPG-Xxxxxx, Present Overseas, Ltd. 20.43
Deutsche Vermogensbildungsgesellschaft mbH 19,289.22
TOTAL: 187,125
The shares to be allocated to each shareholder are subject to adjustment prior
to their release from escrow in accordance with the terms and conditions of this
Agreement and the Merger Agreement.
