Exhibit 4.5
ESCROW AGREEMENT
This Escrow Agreement ("Agreement") dated as of December 15th, 1999 is by
and among Biomet, Inc., an Indiana corporation ("Biomet"); Palm Acquisition
Corp., an Indiana corporation ("Acquisition"); Implant Innovations International
Corporation, a Delaware corporation (the "Parent"); Xxxxx X. Xxxxx (including
any successor thereto, the "Shareholder Representative") as Shareholder
Representative on behalf of all of the former shareholders of Parent entitled to
receive Biomet Common Shares pursuant to the Merger Agreement (the
"Shareholders"); Global Private Equity II L.P. and Advent International
Investors II L.P. (collectively, the "Advent Funds"); and Wilmington Trust
Company, a Delaware banking corporation, as escrow agent (the "Escrow Agent").
Preliminary Statements
A. Biomet, Parent, Implant Innovations, Inc., a Florida corporation, and
the Control Shareholders have entered into an Agreement and Plan of
Merger dated as of August 28, 1999 (the "Merger Agreement"),
providing, in part, for the merger of Parent with and into Acquisition
pursuant to the terms and conditions of the Merger Agreement.
B. The parties hereto wish to establish an escrow account to provide for
the delivery of certain Biomet Common Shares either to the
Shareholders or to Biomet, as provided for herein and in the Merger
Agreement.
C. It is a condition to the obligation of Biomet and Parent to consummate
the transactions contemplated by the Merger Agreement that the parties
hereto enter into this Agreement.
D. The Shareholder Representative has been duly authorized to enter into
this Agreement by all of the Shareholders and to act on their behalf
in the manner contemplated herein.
Terms and Conditions
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
1. Defined Terms. Capitalized terms used herein but not otherwise defined
shall have the meanings ascribed to them in the Merger Agreement.
2. Authority of Escrow Agent. The Escrow Agent hereby agrees to act as
escrow agent and hold, transfer and deliver the securities and other property
held in the Escrow Account (as defined in Section 3 below) in accordance with
and subject to the terms and conditions of this Agreement.
3. Establishment of Escrow Account. As soon as practicable following the
Effective Time, Biomet will deliver to the Escrow Agent, in its capacity as
such, one or more certificates, registered in the name of the Escrow Agent or
its nominee, representing the Biomet Common Shares ("Biomet Shares") issued at
the Closing for the accounts of the persons and in the amounts set forth in
Schedule A hereto (the "Certificates"). The Escrow Agent shall immediately place
the Certificates into an escrow account (the "Escrow Account"). The Escrow
Account shall be held by the Escrow Agent pursuant to the terms and conditions
of this Agreement and shall be available to secure and indemnify Biomet,
Acquisition and the Biomet Persons to the extent provided herein and in the
Merger Agreement. The Escrow Account shall be disbursed by the Escrow Agent only
in accordance with the terms of this Agreement. Except as provided in Section
20, this Agreement and the deposit into the Escrow Account are irrevocable and
may not be canceled by any party hereto or to the Merger Agreement, or by any
Shareholder, and is made pursuant to the terms of the Merger Agreement.
4. Receipt by Escrow Agent. Upon receipt of the Certificates, the Escrow
Agent will provide to the other parties to this Agreement a confirmation of that
fact and of the deposit of the Certificates in the Escrow Account.
5. Voting, Dividends and Rights of Sale of the Biomet Shares.
A. Voting. The Shareholders shall be entitled to vote the Biomet
Shares at all meetings of Biomet shareholders. The Escrow Agent (or Biomet
acting on its behalf) will send to the Shareholders copies of all proxy
materials and other communications sent by Biomet to its shareholders
generally. If those materials are sent by the Escrow Agent, Biomet will
send to the Escrow Agent sufficient copies thereof for this purpose and
will reimburse the Escrow Agent for its reasonable expenses in connection
therewith. The Biomet Shares will be voted in accordance with the
instructions contained in each proxy that is properly executed and timely
received.
B. Dividends; Stock Splits. Dividends paid on the Biomet Shares
(whether in cash or Biomet securities) shall be paid to the Shareholders
but delivered to the Escrow Agent, to be held as a part of the Escrow
Account and distributed by the Escrow Agent pursuant to the terms of this
Agreement. In the event of a stock split, Biomet shall deliver to the
Escrow Agent certificates, registered in the manner described in Section 1,
representing the shares to which the Shareholders are entitled as a result
of the stock split. The shares represented by those certificates shall be
considered as "Biomet Shares" for purposes of this Agreement, and the
certificates shall be held and distributed by the Escrow Agent as
"Certificates" pursuant to the terms of this Agreement.
C. Disposition. Subject to the terms of the Merger Agreement and the
Affiliate Agreement, and to compliance with applicable laws and
regulations, each Shareholder shall have the right to sell any of the
Biomet Shares held for his, her or its account, on the following terms:
(i) Biomet Shares may be sold only in market transactions
effected on Nasdaq-NMS through NatCity Investments, Inc., 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention:
Xxxx Xxxxxx, or any registered broker-dealer then acting as a market
maker in Biomet Common Shares approved in writing by Biomet, which
approval will not be unreasonably withheld (the "Broker").
(ii) The Shareholder will give notice to the Escrow Agent of each
sale of Biomet Shares by the Shareholder, and instructions to the
Escrow Agent to tender a Certificate held for the account of the
Shareholder, in deliverable form, to the Broker (or to otherwise make
effective delivery of the Shares sold), against delivery of the
proceeds of the sale transaction to the Escrow Agent to be held in the
Escrow Account and invested and disposed of in accordance with the
terms of this Agreement.
6. Investment of Escrow Account. Except as described in Section 5.C.,
neither the Certificates nor the Biomet Shares shall be transferred, sold,
exchanged or reinvested except to the extent and on the same terms as may apply
generally to the outstanding Common Shares of Biomet or as otherwise required
under the terms of this Agreement. Any cash held at any time in the Escrow
Account shall be invested in the name of the Escrow Agent or its nominee in any
of the following (which in any case may include money market funds and
investments provided by the Escrow Agent and its affiliates): (a) a government
money market portfolio (including portfolios of the Escrow Agent and its
affiliates) restricted to obligations with maturities of six months or less (but
not to extend beyond the Initial Termination Date or the Final Termination Date,
as applicable), composed of obligations issued or guaranteed as to payment of
principal and interest by the full faith and credit of the United States
("Government Obligations") or repurchase agreements secured by Government
Obligations, and (b) commercial paper of finance companies organized under the
laws of any state of the United States or any political subdivision thereof
having a rating assigned to that commercial paper by Standard & Poor's
Corporation or Xxxxx'x Investors Service, Inc., equal to the highest rating
assigned by that organization. Earnings on that portion of the Escrow Account
invested as provided in the foregoing sentence shall be apportioned among the
Shareholders in proportion to the principal cash invested for their accounts.
7. The Shareholder Representative. The Shareholder Representative hereby
agrees to act as, and to undertake the duties and responsibilities of, the
Shareholder Representative. A copy of the Representative Agreement pursuant to
which the Shareholder Representative is acting in this capacity is attached
hereto as Exhibit A.
8. Indemnification. Biomet, Acquisition and the Biomet Persons
(collectively, the "Indemnified Persons" and individually, an "Indemnified
Person") shall be entitled to indemnification with respect to Losses as provided
in the Merger Agreement, on and subject to the following terms and conditions:
A. Limited Recourse. From and after the Closing, the recourse of the
Indemnified Persons hereunder and under the Merger Agreement for
indemnification as provided in the Merger Agreement shall be the sole and
exclusive rights and remedies for the Indemnified Persons and shall be
limited to the Escrow Account. Except for Claims against the Escrow
Account, none of the Indemnified Persons shall have any recourse against
the Shareholders or any of them for any breach of a representation,
warranty, covenant or agreement in the Merger Agreement or any of the
Merger Documents or in the event the Escrow Account is insufficient to
reimburse the Indemnified Persons for indemnifiable Losses as provided
herein.
B. Contingency Funds. Of the Biomet Shares held in the Escrow Account,
295,944 shares (and cash in the amount of $52.36 representing fractional
share interests) shall be held in a "Specified Contingency Fund" solely for
the purpose of indemnification of the Biomet Persons for any Losses
described in subsection (ii) of Article XIII of the Merger Agreement (the
"Specified Contingency"), and the remainder of the Escrow Account,
consisting of 520,864 Biomet Shares (and cash in the amount of $6.90
representing fractional share interests), shall be held in a "General
Contingency Fund." There shall be added to each contingency fund, and held
in escrow as herein provided, all dividends paid on Biomet Shares deposited
in that fund, all proceeds from the sale of those Biomet Shares and all
earnings on those proceeds.
C. Baskets. The Indemnified Persons shall not be entitled to
reimbursement for Losses unless and until the aggregate of all Losses
exceeds, on a cumulative basis: (i) with respect to the Specified
Contingency, an amount equal to $1,250,000, and thereafter shall be
reimbursed hereunder only for the amount of such Losses that exceed
$1,250,000, and (ii) with respect to all other Losses, an amount equal to
$250,000, and thereafter shall be reimbursed hereunder only for the amount
of such Losses that exceed $250,000.
D. Management of the Specified Contingency.
(i) Until such time as Biomet shall have determined that there is
a reasonable probability that the Specified Contingency will produce
Losses in an amount greater than $1,250,000, Biomet shall have the
sole right to manage and control the disposition of the Specified
Contingency.
(ii) Following such time as Biomet shall have determined that
there is a reasonable probability that the Specified Contingency will
produce Losses in an amount greater than $1,250,000, Biomet and the
Shareholder Representative shall jointly manage and control the
disposition of the Specified Contingency. Neither Biomet nor the
Shareholder Representative shall unreasonably withhold its or his
consent to the settlement of the Specified Contingency on terms
proposed by the other.
9. Claims Procedures.
A. Notice. If any Indemnified Person shall have any claim for which it
seeks the indemnification as provided for herein (a "Claim"), Biomet shall
notify the Shareholder Representative in writing and include in that notice
(a "Claim Notice") a description in reasonable detail of the facts upon
which the Claim is based and the amount of the claimed Losses (including,
with respect to third party claims, the basis for the valuation thereof by
Biomet). Within 30 days following the date of a Claim Notice, Biomet shall
provide the Shareholder Representative with reasonable documentation to
support the Claim and the amount of the claimed Losses. If no written
objection to the Claim is made by the Shareholder Representative within 10
days after the receipt of the Claim Notice by the Shareholder
Representative, the Losses identified in the notice and the liability of
the Shareholders therefor shall be deemed admitted by the Shareholder
Representative who shall thereby waive, on behalf of the Shareholders, all
rights to object to such Claim or deny liability for the Losses identified
in the Claim Notice in any forum whatsoever (an "Accepted Claim"). An
objection by the Shareholder Representative to a Claim must state with
reasonable specificity the basis for the objection.
B. Dispute Resolution. In the event that the parties to this Agreement
are unable to resolve any dispute arising from an objection by the
Shareholder Representative, that matter shall be submitted to arbitration
in accordance with provisions therefor contained in the Merger Agreement;
provided, however, that unless Biomet and the Shareholder Representative
otherwise agree, any provisions of the Commercial Arbitration Rules of the
American Arbitration Association (the "Association") to the contrary
notwithstanding, the arbitration shall proceed as follows:
(i) Each party shall select the arbitrator to be selected by it
within 10 days following notice to the Association of the commencement
of the arbitration, and the arbitrators thus selected shall select the
third arbitrator within 10 days thereafter.
(ii) The dispute shall be decided on the basis of (A) a written
statement by each party of its position, which may include third party
opinions provided by a party in support of its position, and (B) if
requested by either party, both parties shall be allowed no more than
two hours of testimony and no more than one hour of cross-examination
in a hearing before the arbitrators to occur within 10 days following
the submission of the written statements described in (A). No oral
arguments or other evidence or testimony of any kind shall be taken or
submitted. The written statements described in (A) shall be submitted
within 20 days following notice to the Association of the commencement
of the arbitration. The written statements shall not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made not misleading.
(iii) A decision shall be rendered by the arbitrators within 30
days following the delivery of the statements described in (ii), and
in no event later than the next business day preceding the Final
Termination Date.
(iv) The decision of the arbitrators shall be final and neither
party shall have any right to appeal under common law or any federal
or state statute, all of which rights are hereby waived.
C. Accepted Claims. Any Claim objected to by the Shareholder
Representative shall become an Accepted Claim (both as to the right of the
Indemnified Party to be indemnified and the amount of the Losses) upon (i)
entry of the arbitrators' award, or (ii) notice by the Shareholder
Representative to the Escrow Agent that he has withdrawn the objection as
to the indemnifiability of the Claim or the amount of the Losses, as the
case may be. At such time as a Claim shall have become an Accepted Claim in
accordance with the provisions of this Section, Biomet shall give notice of
that fact to the Shareholder Representative and to the Escrow Agent (the
"Accepted Claim Notice").
10. Losses Net of Insurance; Effect of Adjustments. The amount of any
Losses for which reimbursement is provided under this Agreement shall be net of
any amounts recovered or recoverable by the Indemnified Persons under insurance
policies with respect to such Losses. Any reimbursement of Biomet under this
Agreement shall be treated as an adjustment to the Merger consideration for Tax
purposes, unless a final determination (which shall include the execution of a
Form 870-AD or successor form) with respect to the Indemnified Persons or any of
their affiliates causes any such payment not to be treated as an adjustment to
the Merger consideration for United States Federal income Tax purposes.
11. Termination of Escrow Account and Final Distribution of Biomet Shares.
A. Termination of Rights to Assert Claims.
(i) The right of the Indemnified Persons to provide a Claim
Notice with respect to Losses related to the Specified Contingency
shall expire at the close of business on the fortieth (40th) day prior
to the fifth anniversary of the Closing Date (the "Final Termination
Date").
(ii) The right of the Indemnified Persons to assert a Claim for
Losses with respect to a matter that was or should have been
encountered in the audit process (taking into account limitations in
the scope of the audit due to materiality), other than Losses related
to the Specified Contingency, shall expire at the close of business on
the date of the report to Biomet of its independent certified public
accountants with respect to the accountants' examination of the
financial statements of Biomet for the fiscal year ended May 31, 2000,
but in no event later than the close of business on the first
anniversary of the Closing Date (the "Initial Termination Date").
(iii) The right of the Indemnified Persons to assert a Claim for
Losses with respect to all other matters shall expire at Initial
Termination Date.
B. Distributions to Biomet.
(i) Distributions to Biomet with respect to Accepted Claims other
than Claims that relate to the Specified Contingency shall be made by
the Escrow Agent from the General Contingency Fund as soon as
practicable following the Initial Termination Date.
(ii) Distributions to Biomet with respect to Accepted Claims that
relate to the Specified Contingency shall be made by the Escrow Agent
from the Specified Contingency Fund as soon as practicable following
the date on which the Claim becomes an Accepted Claim.
(iii) Distributions to Biomet shall be charged against each of
the Shareholders in proportion to their interests in the Escrow
Account, and made in the form of (A) Certificates representing that
number of Biomet Shares that have a value, determined with reference
to the Conversion Price, equal to the amount of an Accepted Claim, and
(B) if the interest of any Shareholder in Biomet Shares remaining in
the Escrow Account is not sufficient to cover the full amount of that
portion of the distribution charged to the Shareholder, then the
deficiency shall be paid in cash from the respective Shareholder's
portion of the Escrow Account, to the extent that each Shareholder has
cash in his portion of the Escrow Account.
(iv) Upon any distribution of Certificates representing Biomet
Shares to Biomet, the Escrow Agent also shall provide to Biomet a
stock power and any other authority needed to effect the transfer of
the shares into the name of Biomet. If any cash dividend shall have
been paid with respect to Biomet Shares prior to the date of a
distribution of Biomet Shares to Biomet, the per share amount thereof
with respect to the Biomet Shares subject to that distribution shall
be paid to Biomet in cash simultaneously with the distribution.
C. Distributions to the Shareholders.
(i) As soon as practicable following the Initial Termination
Date, the Escrow Agent shall distribute to the Shareholders the
balance, if any, of the Biomet Shares held in the General Contingency
Fund after all distributions have been made to Biomet as herein
provided, and shall liquidate any other investments then held in the
General Contingency Fund and distribute the proceeds thereof and any
other cash then held in the Escrow Account to the Shareholders, in
proportion to their interests in the Escrow Account.
(ii) As soon as practicable following the Final Termination Date,
or in the event of a complete settlement of or a final, non-appealable
judgment in the Specified Contingency prior to the Final Termination
Date and distribution to Biomet of that part of the Specified
Contingency Fund to which it may be entitled, if any, as a result of
that final disposition, the Escrow Agent shall distribute to the
Shareholders the balance, if any, of the Biomet Shares held in the
Specified Contingency Fund after all distributions have been made to
Biomet as herein provided, and shall liquidate all other investments
then held in the Specified Contingency Fund and distribute the
proceeds thereof to the Shareholders, in proportion to their interests
in the Escrow Account.
D. Termination. This Agreement, and all of the liabilities and
obligations of the Escrow Agent hereunder, shall terminate upon the
delivery of all Biomet Shares and other property in the Escrow Account in
accordance with this Agreement.
12. Notices. Any notice or other communication given under this Agreement
shall be in writing and shall be (i) delivered personally; (ii) sent by
documented overnight delivery service; or (iii) sent by facsimile transmission,
provided that a confirmation copy thereof is sent no later than the business day
following the day of such transmission by documented overnight delivery service
or first class mail, postage prepaid (certified or registered mail, return
receipt requested). Such notice shall be deemed to have been duly given (i) on
the date of delivery, if delivered personally; (ii) on the business day after
dispatch by documented overnight delivery service, if sent in such manner; or
(iii) on the date of facsimile transmission, if so transmitted. Notices or other
communications shall be directed to the following addresses:
If to Biomet Xxxxxx X. Xxxx
or Acquisition: Senior Vice President, General Counsel
& Secretary
Biomet, Inc.
Xxxxxxx Xxxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
With a copy to: Berkley W. Duck
Ice Xxxxxx Xxxxxxx & Xxxx
Xxx Xxxxxxxx Xxxxxx
Xxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
If to the Shareholder Representative: Xxxxx X. Xxxxx
Implant Innovations, Inc.
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
With a copy to: Xxxxxx X. X'Xxxxx III
Steel Xxxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
Fax: (000) 000-0000
If to the Advent Funds: Xxxxxx Moufflet
Advent International Corporation
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
If to the Escrow Agent: Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Custody
Fax: (000) 000-0000
Any party may, by notice given in accordance with this Section, specify a new
address for notices under this Agreement.
13. Escrow Agent Expense. The Escrow Agent's fees and reimbursable
expenses for its services hereunder shall be paid by Biomet. In the event Escrow
Agent renders any extraordinary services in connection with the Escrow Account
at the request of the parties, Escrow Agent shall be entitled to additional
compensation therefor.
14. Rights and Obligations of Escrow Agent.
A. Rights of Escrow Agent. The duties and obligations of the Escrow
Agent hereunder shall be governed solely by the provisions of this
Agreement and the Merger Agreement. The Escrow Agent shall be entitled to
retain counsel and to act in reliance upon the advice of such counsel in
all matters pertaining to this Agreement and the Merger Agreement and shall
incur no liability hereunder except for its gross negligence, wilful
misconduct or failure to have acted in good faith. The Escrow Agent shall
not be required to defend any legal proceedings which may be instituted
against it (other than legal proceedings based upon the alleged gross
negligence or wilful misconduct of the Escrow Agent or its failure to have
acted in good faith) with respect to the subject matter of this Agreement
unless requested to do so by a party to this Agreement, in which case the
Escrow Agent shall be indemnified against the cost and expense of that
defense by that party. The Escrow Agent shall in no way be responsible for
nor shall it be its duty to notify any party hereto or any other party
interested in this Agreement of any distribution required under this
Agreement unless such notice is explicitly provided for in this Agreement.
The Escrow Agent shall be protected in acting upon any written notice,
request, waiver, consent, certificate, receipt, authorization, power of
attorney or other paper or document which Escrow Agent in good faith
believes to be genuine and what it purports to be. In the event conflicting
demands for payment of the Escrow Account are made or conflicting notices
are served on Escrow Agent which remain unresolved, the parties hereto
expressly agree and consent that Escrow Agent may file, at the expense of
the parties, an interpleader action in a Court of competent jurisdiction in
the State of Delaware and so notify the parties hereto. Escrow Agent shall
then promptly file the interpleader action and place the portion of the
Escrow Account to which the conflicting notices relate in the registry of
said Court. Upon the filing of the interpleader action and the tender of
into the registry of said Court, Escrow Agent shall, ipso facto, be fully
released and discharged from all obligations imposed on it in this
Agreement to which the tendered portion of the Escrow Account relates.
B. Indemnification of Escrow Agent. Biomet hereby agrees to indemnify
Escrow Agent and hold it harmless from any and against all liabilities,
losses, actions, suits or proceedings at law or in equity, and any other
expenses, fees or charges of any character or nature, including, without
limitation, attorney's fees, which Escrow Agent may incur by reason of its
acting as Escrow Agent under this Agreement or arising out of the existence
of the Escrow Account, except to the extent the same shall be caused by
Escrow Agent's gross negligence, willful misconduct or lack of good faith.
Biomet's indemnity obligations hereunder shall extend to all losses,
claims, damages, liabilities and expenses, including reasonable costs of
investigation, and counsel fees and disbursements, which may be imposed
upon Escrow Agent or incurred in connection with its acceptance of
appointment as Escrow Agent hereunder or the performing of its duties
hereunder including any litigation arising from this Agreement.
15. Capacity of the Escrow Agent. The parties hereto acknowledge that
Escrow Agent may now or in the future provide unrelated financial services to
any one or more of the parties to this Agreement, and that any such relationship
between Escrow Agent and such party shall not affect Escrow Agent's performance
of its duties hereunder. This Agreement expressly and exclusively sets forth the
duties and obligations of the Escrow Agent with respect to any and all matters
pertinent thereto and no implied duties or obligations shall be read into this
Agreement against the Escrow Agent. The Escrow Agent acts hereunder as a
depository only, and is not responsible or liable in any manner whatsoever for
the sufficiency, correctness, genuineness or validity of the subject matter of
this Agreement or any part thereof, or for the form of execution thereof, or for
the identity or authority of any person executing or depositing such subject
matter.
16. Resignation of Escrow Agent. The Escrow Agent may resign at any time by
giving written notice to the parties hereto whereupon the parties hereto will
immediately appoint a successor Escrow Agent. Until a successor Escrow Agent has
been named and accepts its appointment or until another disposition of the
subject matter of this Agreement has been agreed upon by all the parties hereto,
the Escrow Agent shall be discharged of all its duties hereunder save to keep
the Escrow Account whole.
17. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflict of laws thereof.
18. Interpretation. The Section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
19. Severability. In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions, the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
20. Amendment and Waiver. This Agreement may not be amended, supplemented
or discharged, and no provision hereof may be modified or waived, except
expressly by an instrument in writing signed by the party to be charged. Any
term or provision of this Agreement may be waived, but only in writing by the
party which is entitled to the benefit thereof. No waiver of any provision
hereof by any party shall constitute a waiver thereof by any other party nor
shall any such waiver constitute a continuing waiver of any matter by such
party.
21. Binding Effect; Benefits. This Agreement shall be binding upon and
inure to the benefit of the parties to this Agreement and their respective
successors and permitted assigns. Nothing expressed or implied in this Agreement
is intended to or shall be construed to give any person other than the parties
to this Agreement or their respective successors or permitted assigns any legal
or equitable right, remedy or claim under or in respect of this Agreement, it
being the intention of the parties to this Agreement that this Agreement shall
be for the sole and exclusive benefit of such parties or such successors or
assigns and for the benefit of no other person.
22. Cooperation. Biomet, Acquisition and the Shareholder Representative
agree to use their respective best efforts to take, or cause to be taken, all
action, to do, or cause to be done, and to assist and cooperate with the other
parties hereto in doing, all acts and things reasonably necessary to make
effective, in the most expeditious manner practicable, the matters contemplated
by this Agreement, including the prompt delivery of all notices and instructions
required to be made to the parties to this Agreement.
23. Inspection; Statements. All funds or other property held as part of the
Escrow Account shall at all times be clearly identified as being held by the
Escrow Agent hereunder. Any party hereto may at any time during the Escrow
Agent's business hours (with reasonable notice) inspect any records or reports
relating to the Escrow Account. The Escrow Agent shall deliver to Parent and to
the Shareholder Representative monthly statements of account in customary form
covering the Escrow Account.
24. Assignment. Neither this Agreement nor any rights, interests or
obligations hereunder shall be assigned by any party hereto without the prior
written consent of the other parties.
25. Entire Agreement. This Agreement (together with the Merger Agreement
and the Affiliate Agreement, and all documents incorporated herein and therein,
the terms of which are incorporated herein by reference) constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, written and oral. To the
extent that the provisions of any of the agreements incorporated herein are
inconsistent with the provisions contained herein, this Agreement shall
supersede those agreement and be the controlling document.
26. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
BIOMET, INC.
By:/s/ Xxxxxx X. Xxxx
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PALM ACQUISITION CORP.
By:/s/ Xxxxxx X. Xxxx
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IMPLANT INNOVATIONS
INTERNATIONAL CORPORATION
By:/s/ Xxxxx X. Xxxxx
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/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx,
as Shareholder Representative
GLOBAL PRIVATE EQUITY II L.P.
By: Advent International Limited
Partnership, its General Partner
By: Advent International Corporation,
its General Partner
By: /s/ Xxxxxx Moufflet
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ADVENT INTERNATIONAL
INVESTORS II L.P.
By: Advent International Corporation,
its General Partner
By: /s/ Xxxxxx Moufflet
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WILMINGTON TRUST COMPANY,
As Escrow Agent
By: /s/ Xxxxxxxx Xxxxxxx
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