EXHIBIT 2.4
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made and entered into this 7TH
day of February, 2001 by and among GLOBAL INFORMATION GROUP USA, INC., a
Delaware corporation (the "Company"), ADVA INTERNATIONAL INC., a Delaware
corporation ("Buyer"), BIOTEL, INC. ("Biotel"), and XXXXXX XXXXXXXXX XXXXX &
XXXXXXXXX, P.A., a North Carolina professional corporation ("Escrow Agent").
WHEREAS, the Company, Biotel and Buyer are parties to an Agreement of
Stock Exchange dated June 15, 2000 (the "Exchange Agreement") pursuant to which
the shareholders of the Company listed in the Exchange Agreement as Sellers (the
"Sellers") would acquire 94.57% of the Outstanding Buyer Shares (as defined in
the Exchange Agreement); and
WHEREAS, pursuant to Section 5.13 of the Exchange Agreement, Buyer has
agreed during the term of the Exchange Agreement to negotiate exclusively with
the Company and the Sellers; and
WHEREAS, the Exchange Agreement provides in Section 8.1.2 that it may
be terminated by any of the parties if closing of the transaction ("Closing")
does not occur on or prior to August 31, 2000; and
WHEREAS, Section 8.1.2 of the Exchange Agreement was amended by an
Amendment dated February 2, 2001 to extend the Closing Date to March 2, 2001;
and
WHEREAS, Buyer has agreed to extend the required closing date for the
Exchange Agreement to 5:00 o'clock PM EST on March 2, 2001, and to cease all
third party contacts until such time pursuant to Section 5.13 of the Exchange
Agreement, provided that the Company deposits $50,000.00 in escrow with the
Escrow Agent pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and conditions set forth below and other valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties agree as follows:
1. The Company shall deliver to the Escrow Agent for deposit in its
trust account, within two business days from the execution and delivery of this
Agreement by Buyer, the amount of Fifty Thousand and 00/100 Dollars ($50,000.00)
(the "Escrowed Funds"), to be delivered by wire transfer or by overnight
delivery of certified or otherwise readily available funds. The Escrowed Funds
shall be held by Escrow Agent in its non-interest bearing trust account pursuant
to the terms of this Agreement. Upon Escrow Agent's receipt of the Escrowed
Funds, Buyer and Biotel agree to cease all third party contacts until 5:00
o'clock PM EST on March 2, 2001, and to give the Company and Sellers the
exclusive right and opportunity until such time to complete the exchange
transaction contemplated by the Exchange Agreement.
2. The Company agrees that the Company and the Sellers will close the
transaction contemplated by the Exchange Agreement on or before March 2, 2001 at
5:00 p.m. (the "Closing Deadline"), provided that Buyer has complied with its
material obligations pursuant thereto. If the Closing does not occur on or
before the Closing Deadline because of the Company's or the Sellers' failure to
comply with any of the material terms and conditions of the Exchange Agreement,
Advanced Medical Products, Inc. Debtor-in-Possession ("AMP") shall be entitled
to the Escrowed Funds. If the Closing Date occurs on or before the Closing
Deadline, the Escrowed Funds shall be applied against and in reduction of the
$300,000.00 payable to AMP at Closing.
3. If the Closing has not occurred on or before the Closing Deadline
because of the Company's or the Sellers' failure to comply with any of the
material terms and conditions of the Exchange Agreement on or before the Closing
Deadline, Buyer shall give written Notice to Escrow Agent and the Company
demanding payment of the Escrowed Funds to AMP, and certifying that the Closing
has not occurred on or before the Closing Deadline as required by this
Agreement. The Company shall have until March 9, 2001 at 5:00 p.m. (the "Notice
Deadline") to give written Notice to the Escrow Agent demanding return of the
Escrowed Funds, and certifying that: (i) the Company and the Sellers have
complied with all of the material terms and conditions of the Exchange Agreement
on or before the Closing Deadline; and (ii) the transaction contemplated by the
Exchange Agreement failed to close on or before the Closing Deadline
4. Unless the Escrow Agent has received the written Notice described in
paragraph 3 from the Company prior to the Notice Deadline, Escrow Agent shall
deliver the Escrowed Funds to AMP, pursuant to wiring or other delivery
instructions to be provided by Buyer, on or before March 12, 2001. In the event
the Escrowed Funds are paid to the Buyer, Buyer and AMP authorize Escrow Agent
to withhold from the Escrowed Funds and to apply against the balance due the
amount necessary to reimburse Escrow Agent for its fees and expenses related to
its undertakings pursuant to this Agreement.
5. If Escrow Agent has received Notice from the Company prior to the
Notice Deadline and has not yet received a demand for disbursement from Buyer,
Escrow Agent shall within two (2) business days deliver written Notice to Buyer
stating that the Company has demanded the return of the Escrowed Funds. Buyer
shall have five (5) business days after receipt of Notice from Escrow Agent to
contest the disbursement of the Escrowed Funds to the Company by delivering
written Notice to Escrow Agent pursuant to paragraph 3. If Escrow Agent has not
received Notice from Buyer within such five-day period, Escrow Agent shall
within two (2) business days thereafter disburse the Escrowed Funds to the
Company per its written instructions.
6. In the event of a dispute between Buyer and the Company as to
disbursement of the Escrowed Funds, evidenced by conflicting Notices given by
both parties to Escrow Agent pursuant to paragraph 3, Escrow Agent shall retain
the Escrowed Funds in its trust account until both Buyer and the Company join in
a written agreement as to disbursement, or until ordered to disburse the
Escrowed Funds pursuant to the final order of a court of competent jurisdiction.
7. In the event differences between the parties regarding disbursement
of the Escrowed Funds are resolved by a court of competent jurisdiction or by an
alternative method of dispute resolution, all costs and fees associated
therewith shall be borne by the non-prevailing party.
8. Escrow Agent shall have no liability to either party for actions
taken by it in good faith, including without limitation, any payments made to
the Company or to AMP.
9. Escrow Agent shall have no responsibility except for the performance
of its expressed duties hereunder and no additional duties shall be inferred or
implied.
10. Escrow Agent shall not be required to institute or defend any
action involving matters referred to herein or which affect it or its duties or
liabilities hereunder unless or until requested to do so by both parties and
then only upon receiving full indemnity, in character satisfactory to Escrow
Agent, against any and all claims, liabilities and expenses in relation thereto.
In the event of any dispute among the parties with relation to Escrow Agent or
its duties, (a) Escrow Agent may act or refrain from acting in respect to any
matter referred to herein in full reliance upon and by and with the advice of
counsel selected by it and shall be fully protected in so acting or in
refraining from acting upon the advice of such counsel, or (b) Escrow Agent may
refrain from acting until required to do so by an order of a court of competent
jurisdiction.
11. Should Escrow Agent desire to terminate this Agreement for any
reason whatsoever, it may do so by giving thirty (30) days written notice to the
other parties and Escrow Agent shall continue to hold any escrowed funds until
either (a) a successor Escrow Agent shall have been appointed by mutual
agreement of the parties, at which time Escrow Agent shall deliver all such
escrowed funds to such successor escrow agent, or (b) Escrow Agent deposits the
escrowed funds with the local clerk of court.
12. The Company and Buyer, jointly but not severally, agree to
indemnify and hold Escrow Agent harmless from and against all claims, suits,
costs and expenses incurred by Escrow Agent in connection with this Agreement
except as result from its willful neglect, gross negligence, bad faith or
intentional misconduct.
13. All notices or other communications hereunder shall be in writing
and shall be deemed given: (i) upon delivery if delivered personally; (ii) upon
receipt of a confirmation of delivery by the sender if delivered by facsimile;
(iii) one (1) day after deposited with a reputable overnight delivery service;
or (iv) three (3) days after deposited for delivery by certified or registered
mail, return receipt requested, and addressed as follows:
If to the Company, to:
Global Information Group USA, Inc.
Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxx, Esquire
Blank Rome Xxxxxxx & XxXxxxxx LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
If to Buyer, to:
ADVA International Inc.
0 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax No.: (000) 000-0000
With a copy to:
Escrow Agent, at the address below
If to Escrow Agent, to:
Xxxxxx Xxxxxxxxx Xxxxx & Xxxxxxxxx, P.A.
Attn: Xxxxx X. Xxxxxxx
P.O. Drawer 25008
Xxxxxxx-Xxxxx, XX 00000-0000
Fax No.: (000) 000-0000
14. Buyer shall be responsible for any fees charged by Escrow Agent.
15. Capitalized terms used in this Agreement and not otherwise defined
shall have the meaning given to them in the Exchange Agreement.
16. This Agreement shall be governed by the laws of the State of North
Carolina.
17. The Company acknowledges that Escrow Agent has provided and will in
the future provide legal representation to Buyer and to Biotel. Escrow Agent
shall not, as a result of its service as Escrow Agent pursuant to this
Agreement, be disqualified from representing any of its clients in any matter,
including any matter relating to this Agreement, provided such representation is
consistent with applicable rules of professional responsibility.
IN WITNESS WHEREOF, the parties have entered into this Agreement effective as of
the date set forth in the preamble.
GLOBAL INFORMATION GROUP USA, INC.
By: /s/Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, CEO / President
ADVA INTERNATIONAL INC.
By: /s/Xxxxxx Down
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Xxxxxx Down, President
BIOTEL, INC.
By: /s/Xxxxxx Xxxxx
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Xxxxxx Xxxxx, President
XXXXXX XXXXXXXXX XXXXX &
XXXXXXXXX, P.A.
By: /s/XXXXXX XXXXXXXXX XXXXX & XXXXXXXXX
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