Exhibit 99.8
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Escrow Agreement") is made effective this
14th day of December, 2001 by and among Health Sciences Group, Inc., a Colorado
corporation ("HESG") with its principal office at Xxxxxx Xxxxxx Center 0000
Xxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, XCEL Healthcare, Inc., a
California corporation ("XCEL") with its principal office at 0000 Xxxxxxxxx
Xxx., Xxxxx 000, Xxxxxxxx Xxxxx, XX 00000, BioSelect Innovations, Inc., a Nevada
corporation ("BioSelect") with its principal office at 0000 Xxxxxxxxx Xxx.,
Xxxxx 000, Xxxxxxxx Xxxxx, XX 00000, the individuals signatory hereto (the
"Shareholders"), and Xxxxxx & Xxxxxxxxxx, a Law corporation (the "Escrow Agent")
with its principal office at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 (collectively referred to herein as the "Parties").
RECITALS
WHEREAS, HESG, XCEL, BioSelect and the Shareholders are parties to that
certain Stock Purchase and Share Exchange Agreement of even date herewith (the
"Agreement");
WHEREAS, any capitalized term used but not defined herein shall have
the meaning ascribed to such term in the Agreement.
WHEREAS, the Escrow Agent has agreed to hold and release the HESG
Shares, XCEL Shares and BioSelect Shares upon the terms and conditions of this
Escrow Agreement;
WHEREAS, as provided in Section 1.6 of the Agreement, upon their
issuance at the Closing, and notwithstanding this Escrow Agreement, the HESG
Shares, BioSelect Shares and XCEL Shares will carry such voting rights and
rights to receive any declared dividends as if such shares were not held in
escrow under this Escrow Agreement;
NOW, THEREFORE, the Parties agree as follows:
1. ESCROW OF HESG, XCEL AND BIOSELECT SHARES: Until the termination of this
Escrow Agreement, the Escrow Agent shall hold the HESG Shares, XCEL Shares and
BioSelect Shares pursuant to Sections 1.1 and 1.2 of the Agreement.
2. DISCHARGE OF ESCROW HOLDER'S OBLIGATIONS: The Escrow Agent shall release the
HESG Shares to the Shareholders, and the XCEL Shares and BioSelect Shares to
HESG, in accordance with Section 1.5 of the Agreement, on the Guaranty
Cancellation Date; PROVIDED, HOWEVER, that, in accordance with Section 1.5 of
the Agreement, if any or all of the Shareholders cause undue delay or otherwise
fail to cooperate in seeking the novation of the Personal Guarantees, as
contemplated by Section 4.5 of the Agreement, then the Guaranty Cancellation
Date shall be deemed to be the 180th day from the Closing Date, and the HESG
Shares, XCEL Shares and BioSelect Shares shall be released from escrow on such
date, free and clear of any encumbrances created by the Agreement or this Escrow
Agreement.
3. LIMITED DUTIES OF ESCROW AGENT: It is understood and agreed that the duties
of the Escrow Agent are entirely ministerial in nature, being limited to
receiving the HESG Shares, XCEL Shares and BioSelect Shares, duly endorsed in
blank or with executed stock powers attached thereto in transferable form, as
delivered to the Escrow Agent at the Closing pursuant to Sections Sections 1.1
and 1.2 of the Agreement.
3.1 RELIANCE BY ESCROW AGENT: The Escrow Agent may conclusively rely
on, and shall be protected when it acts in good faith upon, any statement,
certificate, notice, request, consent, order, or other document which it
believes to be genuine and signed by the proper Party. The Escrow Agent shall
have no duty or liability to verify any such statement, certificate, notice,
request, consent, order or other document and its sole responsibility shall be
to act only as set forth in this Escrow Agreement. The Escrow Agent shall be
under no obligation to institute or defend any action, suit, or proceeding in
connection with this Escrow Agreement unless it is indemnified to its
satisfaction. The Escrow Agent shall not be liable for any action taken or
omitted, in good faith upon advice of counsel. In performing any of its duties
hereunder, the Escrow Agent shall not incur any liability to anyone for damages,
losses, or expenses except for its willful misconduct.
3.2 ESCROW AGENT AS DEPOSITORY ONLY: The Escrow Agent acts hereunder as
a depository only, and it is not responsible or liable in any manner whatsoever
for the sufficiency, correctness, genuineness or validity of any instrument
deposited with it hereunder, or with respect to the form or execution of the
same, or the identity, authority or rights of any person, executing the same.
The Escrow Agent shall not be required to take or be bound by notice of any
default of any person, or to take any action with respect to such default
involving any expense or liability, unless notice in writing is given to an
officer of the Escrow Agent of such default by the undersigned or any of them,
and unless it is indemnified in a manner satisfactory to it against any expense
or liability arising therefrom. The Escrow Agent shall not be liable for acting
upon any notice, request, waiver, consent, receipt or other papers or documents
not believed by the Escrow Agent to be genuine and to have been signed by the
proper Party or Parties.
3.3 NO LIABILITY FOR ERROR OF JUDGMENT: The Escrow Agent shall not be
liable for any error of judgment or for any act done or step taken or omitted by
it in good faith, or for any mistake of fact or law, or for anything which it
may do or refrain from doing in connection herewith except its own willful
misconduct. The Escrow Agent shall not be answerable for the default or
misconduct of any agent, attorney or employee appointed by it if such agent,
attorney or employee shall have been selected with reasonable care. The Escrow
Agent may consult with legal counsel in the event of any dispute hereunder, and
the Escrow Agent shall incur no liability and shall be fully protected in acting
in accordance with the opinion and instructions of any such counsel.
3.4 FURTHER RIGHTS OF ESCROW AGENT: In the event of any disagreement
between the undersigned or any of them, or the person or persons named in the
foregoing instructions, or any other person, resulting in adverse claims or
demands being made in connection with or for any papers, money or property
involved herein or affected hereby, the Escrow Agent shall be entitled at its
option to refuse to comply with any such claim or demand, so long as such
disagreement shall continue, and in so refusing, the Escrow Agent shall not be
or become liable to the undersigned or any of them or to any person named in the
foregoing instructions for the failure or refusal to comply with such
conflicting or adverse demands, and the Escrow Agent shall be entitled to
continue to do, refrain or refuse to act until:
a) the rights of adverse claimants have been finally adjudicated in a
court assuming and having jurisdiction of the Parties and the money,
papers and property involved herein or affected hereby; or
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b) all differences shall have been adjusted by agreement and the Escrow
Agent shall have been notified thereof in writing signed by all of the
persons interested; and
c) Escrow Agent shall have the right, at any time, to commence
interpleader at the expense of all other Parties to this Escrow
Agreement
4. NO FEES TO ESCROW AGENT: The Escrow Agent shall not receive a fee for the
discharge of its duties under this Escrow Agreement. However, in the event that
the conditions of this Escrow Agreement are not fulfilled, or the Escrow Agent
renders any material service not contemplated by the Agreement, or there is any
assignment of interest in the subject matter of this Escrow Agreement, or any
material modification thereof, or if any material controversy arises hereunder,
or the Escrow Agent is made a party or justifiably intervenes in any litigation
pertaining to this Escrow Agreement, or the subject matter hereof, the Escrow
Agent shall be reasonably compensated for such extraordinary expenses, including
reasonable attorneys' fees, occasioned by any delay, controversy, litigation or
event, and the same may be recoverable from HESG or jointly and severally from
all other parties.
5. NOTICE: The notice addresses of the Parties hereto are as follows:
HESG: Health Sciences Group
Xxxxxx Xxxxxx Center
0000 Xxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Fax: 000-000-0000
XCEL: XCEL Healthcare, Inc.
0000 Xxxxxxxxx Xxx., Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000
Attention: Xxx Xxxxxxx
Fax: 000-000-0000
BioSelect: Same as XCEL
Shareholders: Same as XCEL
Escrow Agent: Xxxxxx & Xxxxxxxxxx
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000-0000
Fax: 000-000-0000
6. MISCELLANEOUS: The provisions of Section 4 shall survive any termination of
this Escrow Agreement, whether by full release of the HESG Shares, XCEL Shares
and BioSelect Shares, resignation or termination of the Escrow Agent, or
otherwise.
7. ACKNOWLEDGEMENT: Escrow Agent hereby acknowledges receipt of this Escrow
Agreement and agrees to act in accordance with said Escrow Agreement and upon
the terms and conditions set forth herein.
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IN WITNESS WHEREOF, the Parties hereto have caused this Escrow
Agreement to be duly executed as of the day and year first written above.
HESG: THE ESCROW AGENT:
Health Sciences Group, Inc. Xxxxxx & Xxxxxxxxxx
/s/ Xxxx X. Xxxxxxx /s/ Xxxxx Xxxxxxxxxx
--------------------------- ----------------------
By: Xxxx X. Xxxxxxx By: Xxxxx Xxxxxxxxxx
Its: Chief Executive Officer Its: Principal
XCEL:
XCEL Healthcare, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------------------
Its: Chief Executive Officer
BIOSELECT:
BioSelect Innovations, Inc.
By: /s/ Xxx X. Xxxxxxx
---------------------------------------
Its: Chief Operating Officer
SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxx X. Xxxxxxx
--------------------------------------------
Xxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxxxxxx
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