EXHIBIT 10.4
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "ESCROW AGREEMENT") is executed and
delivered as of September 23, 2003 by and between Xxxx X. Xxxxx ("XX. XXXXX")
and Endocare, Inc., a Delaware corporation (the "COMPANY"). Xx. Xxxxx and the
Company each is referred to herein as a "PARTY," and, collectively, as the
"PARTIES."
RECITALS
WHEREAS, Xx. Xxxxx was an employee of the Company and the Chairman of
the Company's Board of Directors; and
WHEREAS, Xx. Xxxxx and the Company mutually decided to end their
employment relationship, upon the terms and conditions set forth in the
Separation Agreement entered into by Xx. Xxxxx and the Company as of July 31,
2003 ("SEPARATION AGREEMENT");
WHEREAS, Xx. Xxxxx and the Company have mutually decided to place into
escrow certain payments that are to be made to Xx. Xxxxx by the Company pursuant
to Section 1 of that Separation Agreement (Severance Payment) and pursuant to
Section 2(a) of the Consulting Agreement that is attached as Exhibit A to the
Separation Agreement and incorporated as part of that Separation Agreement;
NOW, THEREFORE, in consideration of the covenants and promises
contained herein, the Parties agree as follows:
1. ESCROW OF SEVERANCE PAYMENT. Pursuant to Section 1 of the Separation
Agreement, Xx. Xxxxx is entitled to receive a Severance Payment in the amount of
$375,000(the "SEVERANCE PAYMENT"). As soon as reasonably practicable following
the date of the signing of this Agreement, the Company shall deposit in cash
with the Escrow Agent (as defined below) the Severance Payment to be held in
escrow on behalf of Xx. Xxxxx in accordance with this Escrow Agreement. The
Company and Xx. Xxxxx intend that all rights to the Severance Payment shall
transfer to Xx. Xxxxx only upon the release of those funds to him by the Escrow
Agent in accordance with the terms and conditions of this Agreement. Until that
time, Xx. Xxxxx shall have the same rights and privileges and stand in the same
position as any other general creditor of the Company with respect to such
funds.
2. ESCROW OF CONSULTING PAYMENT. Pursuant to Section 2(a) of the
Consulting Agreement, which is attached and incorporated as Exhibit A to the
Separation Agreement, Xx. Xxxxx is entitled to receive a Cash Compensation for
providing specified consulting services in the amount of $375,000 (the
"CONSULTING CASH COMPENSATION"). As soon as reasonably practicable following the
date of the signing of this Agreement, the Company shall deposit in cash with
the Escrow Agent (as defined below) the Consulting Cash Compensation to be held
in escrow on behalf of Xx. Xxxxx in accordance with this Escrow Agreement. The
Company and Xx. Xxxxx intend that all rights to the Consulting Cash Compensation
shall transfer to Xx. Xxxxx only upon the release of those funds to him by the
Escrow Agent in accordance with the terms and conditions of this Agreement.
Until that time, Xx. Xxxxx shall have the same rights and privileges and stand
in the same position as any other general creditor of the Company with respect
to such funds
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3. ESCROW AGENT. The Company shall select and engage an escrow agent
(the "ESCROW AGENT") to accept delivery of the Severance Payment and the
Consulting Cash Compensation (collectively, the "ESCROWED Compensation") and to
hold the Escrowed Compensation in an escrow account (the "ESCROW ACCOUNT"),
subject to the terms and conditions of this Escrow Agreement. The Escrow Agent
shall be entitled to receive from time to time reasonable fees and shall be
entitled to reimbursement for reasonable and documented out-of-pocket expenses
incurred by the Escrow Agent in the performance of its duties hereunder and the
execution and delivery of this Escrow Agreement. All such fees and expenses
shall be paid by the Company unless otherwise noted. The Parties agree to
execute and deliver to the Escrow Agent any reasonable addendum or agreement
required by the Escrow Agent relating to the payment of such fees and expenses
and containing other reasonable terms and conditions, including without
limitation customary provisions providing for the indemnification of the Escrow
Agent.
4. INVESTMENT OF ESCROWED COMPENSATION. The Company shall instruct the
Escrow Agent to invest the Escrowed Compensation in an interest-bearing Money
Market Account or Certificate(s) of Deposit with one or more of the following
Banks, Mellon 1st Business Bank, East West Bank, Citizens Business Bank, or
Wilshire State Bank until the final disbursement of all Escrowed Compensation.
The Escrow Agent is authorized to liquidate in accordance with its customary
procedures any portion of the cash in the Escrow Account consisting of
investments to provide for payments required to be made under this Agreement.
5. DURATION OF ESCROW AND RELEASE OF ESCROWED COMPENSATION. The Escrow
Agent shall hold the Escrowed Compensation subject to the following schedule
regarding its release. If, at any time prior to March 1, 2004, the Company is
advised by the Securities and Exchange Commission (the "COMMISSION") that the
Commission will not institute a proceeding against Xx. Xxxxx, the Company shall
instruct the Escrow Agent to release all Escrowed Compensation, subject to
Section 6 below, including interest earned thereon, to Xx. Xxxxx within ten
business days of such advisement, and the escrow shall be terminated. Unless the
Commission has advised the Company by March 1, 2004 that the Commission has
instituted a proceeding against Xx. Xxxxx or that the Commission will not
institute a proceeding against Xx. Xxxxx, the Company shall instruct the Escrow
Agent to release all Escrowed Compensation, subject to Section 6 below,
including interest earned thereon, to Xx. Xxxxx between March 8, 2004 and March
9, 2004, and the escrow shall be terminated. If, at any time prior to March 1,
2004, the Company is advised by the Commission that the Commission has
instituted a proceeding against Xx. Xxxxx, the Company shall instruct the Escrow
Agent to continue to hold the Escrowed Compensation under the terms of this
Escrow Agreement until receipt by the Escrow Agent of written notice by the
Company that (i) a Payment Cancellation Event (as defined in Section 1 of the
Separation Agreement) has occurred, in which case the Escrow Agent shall release
all Escrowed Compensation, including interest earned thereon, to the Company
within ten business days of such notice, and the escrow shall be terminated; or
(ii) there has been a Final Resolution (as defined below) of the proceeding
brought by the Commission against Xx. Xxxxx and that no Payment Cancellation
Event has occurred, in which case the Escrow Agent shall release all Escrowed
Compensation, subject to Section 6 below, including interest earned thereon, to
Xx. Xxxxx within ten business days of such notice, and the escrow shall be
terminated. Notwithstanding anything in this Agreement to the contrary: (a) if
prior to any release of the Escrowed Compensation, the Escrow Agent receives
written notice from the Company that a Payment Cancellation Event has occurred,
the Escrow Agent shall release all Escrowed Compensation, including interest
earned thereon, to the Company within ten business days of such notice, and the
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escrow shall be terminated; and (b) the Company shall not instruct the Escrow
Agent to release any Escrowed Compensation to Xx. Xxxxx prior to the Final
Resolution of any proceeding brought by the Commission against Xx. Xxxxx without
the prior written consent of the Commission, unless otherwise ordered by a court
of law. For purposes of this Agreement, "Final Resolution" shall mean an
agreement between Xx. Xxxxx and the Commission that expressly resolves all
issues presented in any and all proceedings initiated by the Commission against
Xx. Xxxxx, or a final judgment or judgments addressing all issues, after all
appeals have been exhausted.
6. TAX MATTERS. The Parties intend that the Escrowed Compensation only
be compensation for applicable tax purposes to Xx. Xxxxx upon release of the
Escrowed Compensation from Escrow Account to him (the "RELEASE"). The Parties
will take positions consistent with such intent for all tax purposes, unless
otherwise required by law. In accordance therewith, unless there is a "final
determination," within the meaning of Section 1313(a) of the Internal Revenue
Code of 1986, as amended ("FINAL DETERMINATION"), to the contrary, the Company
shall be entitled to and shall only withhold all applicable taxes (for payment
to the taxing authorities) from the Escrowed Compensation upon the Release, and
pursuant to written instruction by the Company, the Escrow Agent shall deduct
the amount of such applicable taxes from Escrowed Compensation and remit the
same to the Company for withholding and payment to the taxing authorities. If
there is a Final Determination treating the Escrowed Compensation as
compensation to Xx. Xxxxx for applicable tax purposes prior to the Release, the
Company shall be entitled to withdraw the applicable withholding taxes, together
with any interest and penalties thereon, from the Escrow Account at the time of
the Final Determination for payment of such taxes, interest and penalties to the
taxing authorities.
7. TRANSFERABILITY. The interests of Xx. Xxxxx in the Escrow Account
and in the Escrowed Compensation shall not be assignable or transferable, other
than by operation of law. No assignment or transfer of any of such interests by
operation of law shall be recognized or given effect until the Company and the
Escrow Agent shall have received written notice of such assignment or transfer.
8. INTERPRETATION. This Escrow Agreement, together with any exhibits
attached hereto, is intended to modify and clarify the terms of the Separation
Agreement between Xx. Xxxxx and the Company.
9. SEVERABILITY. If any provision of this Escrow Agreement shall be
held by a court or arbitrator to be invalid, unenforceable or void, such
provision shall be enforced to the fullest extent permitted by law, and the
remainder of this Escrow Agreement shall remain in full force and effect. In the
event that the time period or scope of any provision is declared by a court or
arbitrator of competent jurisdiction to exceed the maximum time period or scope
that such court or arbitrator deems enforceable, then such court or arbitrator
shall reduce the time period or scope to the maximum time period or scope
permitted by law.
10. COUNTERPARTS. This Escrow Agreement may be executed in any number
of counterparts, each of which shall be deemed an original of this Agreement,
but all of which together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereby execute this Escrow Agreement as
of the date first above written.
ENDOCARE, INC.
By: /s/ Xxxxxxx X. Xxxxx /s/ Xxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx Xxxx X. Xxxxx
Title: President & Chief Operating Officer
[SIGNATURE PAGE TO ESCROW AGREEMENT]
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