EXHIBIT 10.9
ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is entered into as of the 16th day
of May, 1997, by and among the following parties: American National Bank and
Trust Company of Chicago, as escrow agent (the "Escrow Agent"), Photogen
Technologies, Inc. (f/k/a MT Financial Group, Inc.) ("the Company"), Xxxx X.
Xxxxxxx, Ph.D., Xxxxx Xxxx, Ph.D., Xxxxxx X. Xxxxxxx, Ph.D., Xxxxxxx X. Xxxxx,
Ph.D., and Xxxx Xxxxxx (sometimes individually "Grantor" and collectively
"Grantors"), and Xxxxxx Xxxxx, Xxxx Xxxxx Xxxxxxxx and Xxxxxxx X. Xxxx
(sometimes "Grantee" and collectively "Grantees").
RECITALS
A. Grantors are the equal owners of all the Membership Interests of
Photogen L.L.C. ("Photogen");
B. Photogen retained the services of Xxxxx, and Xxxx Xxxxx Xxxxxxxx and
Xxxxxxx X. Xxxx, his associates, as placement agents to find venture capital to
develop Photogen's technology; and
X. Xxxxx and his associates found and brought the Company, Photogen and
its Members together. The Company and Photogen, together with Photogen's
Members and others have entered into a transaction which if consummated will
result in a placement fee due to Xxxxx and his associates consisting of cash and
Warrants to purchase an aggregate of 960,000 shares of common stock of the
Company owned by the Grantors (192,000 shares owned by each Grantor);
D. In order for the Grantors to meet their obligation to provide Warrants
for 960,000 shares of common stock of the Company, the parties have agreed to
establish this Escrow Agreement pursuant to which the American National Bank and
Trust Company of Chicago shall act as the Escrow Agent.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Each Grantor hereby delivers a single stock certificate in the
amount of 192,000 shares of Common Stock of the Company together with stock
powers executed in blank and guaranteed to the Escrow Agent to be held by the
Escrow Agent pursuant to the terms and conditions of this Escrow Agreement (the
"Escrow Deposits"). The identification of each stock certificate by number
which each Grantor is depositing with the Escrow Agent is set forth on
Exhibit A, attached hereto.
2. The Warrant Agreements and the form of Warrants issued by each
Grantor to the Grantees is attached hereto as Exhibit B.
3. This Escrow is established for a period of five years and will
terminate on the 15 day of May, 2002, unless sooner terminated as provided for
herein.
4. The Escrow Agent will only act with respect to a Grantor's
Deposits in accordance with one or more written letters of direction jointly
executed by the Company, the Grantor who made the Deposit and that Grantor's
intended Grantee(s) (or the Grantee(s) lawful transferee(s) (a "Holder") of the
Warrant) or in accordance with a final order of a court of competent
jurisdiction.
5. The Escrow Agent shall be entitled to compensation for standard
services rendered at the rate of $2,000 per annum. In addition, an exercise fee
of $500 in the aggregate will be charged each time a Grantee intends to exercise
a Warrant (which will always require the Grantee to exercise Warrants from all
five Grantors in equal amounts, I.E., a $100 charge for exercise of each of the
five warrants) and additional compensation for services beyond the standard,
including without limitation, participation in litigation. All fees, costs or
expenses pursuant to this Agreement and any transactions carried out hereunder
shall be billed by the Escrow Agent to the Company and shall not be deducted
from the Escrow Deposits, and the Company shall pay the same within 30 days from
receipt of the invoice. The Company shall also be responsible for any taxes and
tax reporting relating to the Escrow Deposits, if any. The Escrow Agent shall
not have a lien on the Escrow Deposit to secure payment of any fees, costs or
expenses, and the Escrow Agent hereby waives any right of offset or recoupment
it may have against the Escrow Deposits or any of the assets in the Escrow.
6. In the event of any dispute between the parties hereto, or
between them and any other person, which results in claims or demands against
the Escrow Deposits or the Escrow Agent, or in the event the Escrow Agent, in
the exercise of good faith, is reasonably in doubt as to what action it should
take hereunder, the Escrow Agent at its option may refuse to comply with any
claims or demands on it or refuse to take any other action hereunder, so long as
such dispute or such doubt exists; and in any such event, the Escrow Agent shall
not be or become liable in any way or to any person for its failure or refusal
to act. The Escrow Agent shall be entitled to continue so to refrain from
acting until (i) the rights of the parties to the dispute have been fully and
finally adjudicated by a court of competent jurisdiction, or (ii) all
differences shall have been adjusted and all doubt resolved by agreement between
the parties to the dispute and the Escrow Agent shall have been notified thereof
in writing signed by or on behalf of all such persons. The foregoing rights of
the Escrow Agent are in addition to all other rights it may have by law or
otherwise.
7. The Escrow Agent may consult with independent legal counsel in
the event of any dispute or question as to the construction of any of the
provisions hereof or its duties hereunder and it shall incur no liability and
shall be fully protected in acting reasonably and in good faith in accordance
with the written opinion and instructions of such counsel (except to the extent
a court of competent jurisdiction determines that such action nonetheless
constituted gross negligence or willful misconduct by the Escrow Agent). The
Escrow Agent shall notify the Company when it intends to consult with such
independent legal counsel. The Escrow Agent shall have the right to file legal
proceedings, including an interpleader, to determine the proper
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disposition of the Escrow Deposits hereunder, and all costs thereof shall
constitute an expense of administration of this Agreement.
8. In the event the Escrow Agent becomes involved in any disputes
(including without limitation any litigation) in connection with this Agreement,
the Company, Grantors and Grantees agree to indemnify and hold the Escrow Agent
harmless from all loss, cost, damages, expenses, liabilities, judgments and
attorneys' fees suffered or incurred by the Escrow Agent as a result thereof;
provided, however, that the foregoing indemnity obligation shall not apply to
any litigation in which relief is obtained for, and the Escrow Agent shall
remain liable for, its gross negligence or willful misconduct or any breach by
the Escrow Agent of its duties hereunder.
9. The following general provisions apply:
a. The Escrow Agent shall not be responsible for the
sufficiency of the form, execution, validity or genuineness of notices,
documents or securities now or hereafter deposited hereunder, or of any
endorsement thereon, or for any description therein nor shall the Escrow Agent
be responsible or liable in any respect on account of the identity, authority or
rights of the persons executing or delivering or purporting to execute or
deliver any such document, security or endorsement.
b. The duties and responsibilities of the Escrow Agent shall be
limited to those expressly set forth in this Escrow Agreement; provided however,
that with Escrow Agent's written consent, the duties and responsibilities in
this Agreement may be amended at any time or times by an instrument in writing
signed by all other parties hereto.
c. Except for the provisions of this Agreement, the Escrow
Agent is not required to be familiar with the provisions of the Warrant, Warrant
Agreement or any other instrument or agreement and shall not be charged with any
responsibility or liability in connection with the observance or non-observance
by anyone of the provisions of the Warrant, Warrant Agreement or such other
instrument or agreement.
d. The Escrow Agent shall have the right to resign by giving
30 days' prior written notice to the other parties hereto. Within such 30
day period, the Company, the Grantors, the Grantees and all Holders shall
appoint a successor escrow agent and advise the Escrow Agent of such
successor in writing. Thereupon, the Escrow Agent shall deliver all Deposits
in this Escrow to such successor escrow agent and after such delivery all
further responsibility of the Escrow Agent under this Agreement shall
terminate. If a successor escrow agent has not been appointed and has not
accepted such appointment by the end of the 30-day period, the Escrow Agent
may apply to a court of competent jurisdiction for the appointment of a
successor escrow agent, and the costs, expenses and reasonable attorneys'
fees which are incurred in connection with such a proceeding shall be paid by
the parties to this Agreement.
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e. In any event, this Escrow Agreement shall terminate on the
15 day of May, 2002, and all Escrow Deposits at that time shall be returned to
each depositing Grantor as his interest shall appear.
10. MISCELLANEOUS.
a. All notices or communications pursuant to this Agreement
shall be in writing and addressed as follows:
IF TO THE ESCROW AGENT:
American National Bank and
Trust Company of Chicago
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
IF TO THE COMPANY:
Xxxx Xxxxxx
Photogen Technologies, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxx 00000
IF TO THE GRANTOR:
[__________________]
Photogen Technologies, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxx 00000
IF TO THE GRANTEES:
To the address on the Company records,
as set forth on Exhibit C hereto.
Notices or communications by mail shall be deemed given and effective three days
after depositing the same in the United States mail, postage prepaid, certified
mail return receipt requested. Alternatively, any party may give any
communication using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, or ordinary mail), but no such
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party may
change the address to which communications hereunder are to be delivered by
giving the other parties notice in the manner herein set forth.
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b. This Agreement (i) may be executed in one or more
counterparts and, if so executed, the various counterparts shall be and
constitute one instrument for all purposes and shall be binding on the party
that executed it; (ii) constitutes the full and entire agreement between the
parties with regard to the subject hereof, and supersedes any prior
representations, promises, or warranties (oral or otherwise) made by any party
or its agents, attorneys, employees or representatives; and no party shall be
liable or bound to any other party for any prior representation, promise or
warranty (oral or otherwise) except for those expressly set forth in this
Agreement; (iii) shall be governed by and construed in accordance with the laws
of the State of Illinois without regard to conflict of laws provisions thereof;
(iv) shall only be amended by a writing signed by all parties hereto; and (v)
has been executed by the parties' respective duly authorized representatives,
has been duly authorized by all requisite corporate action as applicable, and
constitutes the valid and binding obligation of the parties hereto.
[The remainder of this page is intentionally blank.]
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IN WITNESS WHEREOF, the undersigned have caused this Escrow Agreement
to be executed as of the date first written above.
AMERICAN NATIONAL BANK PHOTOGEN TECHNOLOGIES, INC.
AND TRUST COMPANY OF CHICAGO,
As Escrow Agent
/S/ XXXXXXX X. XXXXXX /S/ XXXX XXXXXX
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By: By:
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Its: Assistant Vice President Its: President
GRANTORS
/S/ XXXX X. XXXXXXX /S/ XXXXX XXXX
------------------------------ ------------------------------
Xxxx X. Xxxxxxx, Ph.D. Xxxxx Xxxx, Ph.D.
/S/ XXXXXX X. XXXXXX /S/ XXXXXXX X. XXXXX
------------------------------ ------------------------------
Xxxxxx X. Xxxxxxx, Ph.D. Xxxxxxx X. Xxxxx, Ph.D.
/S/ XXXX XXXXXX
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Xxxx Xxxxxx
GRANTEES
/S/ XXXXXX XXXXX
------------------------------
Xxxxxx Xxxxx
/S/ XXXX XXXXX XXXXXXXX
------------------------------
Xxxx Xxxxx Xxxxxxxx
/S/ XXXXXXX X. XXXX
------------------------------
Xxxxxxx X. Xxxx
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