Exhibit 10.2
CONFIDENTIAL TREATMENT OF REDACTED PORTIONS HAS BEEN GRANTED BY THE SEC
Execution Document
February 3, 1999
ESCROW AGREEMENT
This Escrow Agreement (this "Agreement") is among Xxxxxx, Inc., a Colorado
corporation ("Seller"); Xxxxx Norton Pharmaceuticals, Inc., a Florida
corporation ("Buyer"); and Norwest Bank Colorado, National Association (the
"Escrow Agent"). Seller and Buyer are sometimes referred to collectively as
the "Escrowing Parties."
RECITALS
WHEREAS, the Escrowing Parties agree to place in escrow certain funds and the
Escrow Agent agrees to hold and distribute such funds in accordance with the
terms of this Escrow Agreement, the Escrow Agent and the Escrowing Parties
make this agreement as follows:
ARTICLE 1: DIRECTIONS
1.01 ESCROWED FUNDS:
With its execution and delivery hereof, Buyer is depositing with the Escrow
Agent the sum of [ (US$ )] (the "Escrowed Funds")
in the form of a bank cashiers' check, certified wire transfer, or other
immediately available funds payable to the order of the Escrow Agent.
1.02 INSTRUCTIONS:
(a) The Escrow Agent shall invest the Escrowed Funds in such manner as may
be directed by written instructions signed by both Seller and Buyer,
provided, however, that, in the absence of such instructions the Escrow Agent
shall invest the Escrowed Funds in an interest-bearing account of a federally
insured financial institution (which may be the Escrow Agent or any of its
affiliated financial institutions).
(b) If and when the Escrow Agent receives, at the address stated for the
Escrow Agent above its signature at the end of this Escrow Agreement, written
notice (the "Delivery Notice") from Seller stating (A) that Seller is
entitled to the Escrowed Funds under the terms of the Supply Agreement and
(B) that Seller has given notice to Buyer that Seller is making the Delivery
Notice, then the Escrow Agent shall (i) furnish Buyer with a copy of the
Delivery Notice within two banking days after Escrow Agent's receipt thereof
and (ii) on the tenth banking day after its receipt of the Delivery Notice
(such tenth day being the "Delivery Date").
(1) Deduct, from the aggregate of the Escrowed Funds and interest accrued
thereon, the Escrow Agent's Fees, as determined pursuant to Article 2;
(2) Release and deliver to Seller the lesser of (i) the Escrowed Funds,
excluding interest accrued thereon, or (ii) the amount remaining after
deducting the Escrow Agent's fees from the aggregate of the Escrowed Funds
and interest accrued thereon; and
(3) Release and deliver to Buyer the amount, if any, remaining of the
aggregate of the Escrowed Funds and interest accrued thereon after making the
deductions and deliveries provided for in Section 1.02(b)(1) and Section
1.02(b)(2).
(c) Notwithstanding Section 1.02(b), the Escrow Agent shall not make the
deductions, releases and deliveries provided for in Section 1.02(b) if, prior
to the Delivery Date, the Escrow Agent shall have received, at the address
stated for the Escrow Agent above its signature at the end of this Escrow
Agreement, written notice (the "Claim Notice") from Buyer stating (1) that
Seller is not entitled to the Escrowed Funds under the terms of the Supply
Agreement and (2) that Buyer is entitled to file the Claim Notice under the
terms and conditions of the Supply Agreement. The Escrow Agent shall furnish
Seller with a copy of the Claim Notice within two banking days of the Escrow
Agent's receipt thereof.
(d) If the Escrow Agent receives a Claim Notice as contemplated in Section
1.02(c), the Escrow Agent shall release and deliver the Escrowed Funds as
directed by written instructions signed by both Seller and Buyer, which
instructions may direct the Escrow Agent (A) to release all of the Escrowed
Funds to Seller, (B) to release all of the Escrowed Funds to Buyer, (C) to
release a stated portion or percentage of the Escrowed Funds to one of them
and the balance to the other, or (D) to release the Escrowed Funds as
otherwise directed in the written instructions; provided, however, that, if
the Escrow Agent does not receive such written instructions within six months
following receipt of a Claim Notice, the Escrow Agent shall continue to hold
the Escrowed Funds pursuant to this Agreement pending receipt of such written
instructions until the Escrow Agent determines in its discretion to proceed
in accordance with Section 3.08.
1.03 ASSIGNMENT OF INTEREST:
The assignment, transfer, conveyance, or hypothecation of any right title, or
interest in and to the subject matter of this Agreement (referred to under
this Section 103 as "Assignment') shall be binding upon the Escrow Agent upon
delivery of notice to the Escrow Agent of the Assignment and payment to the
Escrow Agent of all of its fees, in connection with the Assignment, provided
the Escrow Agent has given its written assent to the Assignment, which assent
shall not be unreasonably withheld.
ARTICLE 2: COMPENSATION OF THE ESCROW AGENT
The Escrowing Parties agree, jointly and severally, to pay the Escrow Agent
the following ("Escrow Agent's Fees"):
(a) [ ] inception fee and [ ] annual administration fee for all
services rendered by it under this Agreement; and
(b) Reasonable compensation for services rendered in connection with this
Agreement but not expressly provided for herein and reimbursement for those
reasonable expenses incurred by the Escrow Agent in rendering such services,
including, but not limited to court costs and attorney's fees incurred as a
result of any dispute arising out of this Agreement.
Provision is made in Section 1.02(b)(1) for the deduction of the Escrow
Agent's Fees in connection with release and delivery of the Escrowed Funds.
The Escrow Agent shall have a first and prior lien upon the Escrowed Funds to
secure the payment of the Escrow Agent's Fees. If any such payment is not
timely received by the Escrow Agent the Escrowing Parties authorize the
Escrow Agent to deduct such payment from the Escrowed Funds.
ARTICLE 3: PROVISIONS CONCERNING ESCROW AGENT
3.01 AUTHORITY OF ESCROWING PARTIES:
The Escrow Agent shall be under no duty or obligation to ascertain the
identity, authority, and/or rights of the Escrowing Parties or their agents.
3.02 OTHER AGREEMENTS:
The Escrow Agent shall not be a party to, or bound by, any agreement between
the Escrowing Parties other than this Agreement, whether or not a copy and/or
original of such agreement is held as escrowed property under this Agreement,
and, the Escrow Agent shall have no duty to know or inquire as to the
performance or nonperformance of any provision of any such agreement between
the Escrowing Parties.
3.03 DEPOSITED INSTRUMENTS AND/OR FUNDS:
The Escrow Agent assumes no responsibility for the validity or sufficiency of
any instrument held as Escrowed Funds, except as expressly and specifically
set forth in this Agreement.
3.04 LATE PAYMENTS OR PERFORMANCE:
The Escrow Agent may not accept any payment or performance required under
this Agreement after the date such payment or performance is due, except as
the Parties may otherwise jointly instruct the Escrow Agent in writing
subsequent to the date such payment or performance is due but prior to the
actual date of payment or performance.
3.05 ESCHEAT:
The Escrowing Parties are aware that under Colorado law, escrowed property
which is presumed abandoned may escheat to the State. The Escrow Agent shall
have no liability to the Escrowing Parties, their respective heirs, legal
representatives, successors, and assigns, should any or all of the Escrowed
Funds become escheat able or escheat by operation of law.
3.06 NON-LIABILITY:
The Escrow Agent shall not be liable for any act or omission while acting in
good faith and in the exercise of its own best judgment. Any act or omission
by the Escrow Agent pursuant to the advice of its attorneys shall be
conclusive evidence of such good faith. The Escrow Agent shall have the
right to consult with counsel at the expense of the Escrowing Parties
whenever any question arises concerning this Agreement and shall incur no
liability for any delay reasonably required to obtain such advice of counsel.
The Escrow Agent shall have no further responsibility or liability whatsoever
to any or all of the Escrowing Parties following a complete distribution of
the Escrowed Funds pursuant to this Agreement. The Escrow Agent shall not
incur any liability with respect to any act or omission in reliance upon any
document including any written notice or instruction provided for in this
Agreement. In performing its obligations hereunder, the Escrow Agent shall
be entitled to presume, without inquiry, the due execution, validity and
effectiveness of all documents it receives, and also the truth and accuracy
of any information contained therein. The Escrow Agent shall not be
responsible or liable for any diminution of principal of the Escrowed Funds
or any interest penalty, whatsoever, for any reason.
3.07 INDEMNIFICATION:
The Escrowing Parties agree, jointly and severally, to indemnify and hold
harmless the Escrow Agent from any liability, cost, or expense whatsoever,
including, but not limited to, attorney's fees incurred by reason of
accepting this Agreement and/or Escrowed Funds.
3.08 DISAGREEMENTS.
If any disagreement or dispute arises between the Escrowing Parties
concerning the meaning or validity of any provision hereunder or concerning
any other matter relating to this Agreement, the Escrow Agent.
(a) Shall be under no obligation to act, except under process or order of
court or until it has been adequately indemnified to its full satisfaction,
and shall sustain no liability for its failure to act pending such process,
court order or indemnification; and
(b) May, in its sole and absolute discretion, interplead the Escrowed Funds
or that portion of Escrowed Funds it then holds with the District Court of
the City and County of Denver, State of Colorado, and name the Escrowing
Parties in such interpleader action. Upon filing the interpleader action,
the Escrow Agent shall be relieved of all liability as to the Escrowed Funds
and shall be entitled to recover from the Escrowing Parties its reasonable
attorneys' fees and other costs incurred in commencing and maintaining such
action, The Escrowing Parties by signing this Agreement submit themselves to
the jurisdiction of such court and do appoint the Clerk of such Court as
their agent for the service of all process in connection with such
proceedings In no event shall the institution of such interpleader action
impair the rights of the Escrow Agent described in Section 3.06 of this
Article.
ARTICLE 4: GENERAL TERMS AND CONDITIONS
4.01 EXTENSION OF BENEFITS:
This agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective heirs, legal representatives, successors, and
assigns of all of the Escrowing Parties and the Escrow Agent.
4.02 GOVERNING LAW:
This Agreement shall be construed and enforced in accordance with the laws of
the State of Colorado.
4.03 NOTICES:
All notices, requests, demands, and other communications required under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered personally or by certified mail, return receipt requested and
postage prepaid, addressed as set forth below under the signature lines of
the respective addressees of such communications, provided that an addressee
may change the address for communications to it by giving notice of such
change to a communicating party, which change shall become effective as to
that communicating party on the later of the effective date stated in the
notice of change or the tenth day after the notice of change is given. If
any notice is mailed, it shall be deemed given on the date on which the
return receipt is signed or delivery is refused or the notice is designated
by the postal authorities as not deliverable, as the case may be. If any
notice is personally delivered, it shall be deemed given upon the date of
such delivery. If notice is given to a party, it shall be mailed or
delivered to the addresses set forth below the signature blocks. It shall be
the responsibility of the Escrowing Parties to notify the Escrow Agent in
writing of any name or address changes.
4.04 ENTIRE AGREEMENT:
This Agreement sets forth the entire agreement and understanding of the
Escrowing Parties hereto.
4.05 AMENDMENT:
This Agreement may be amended, modified, superseded, rescinded, or canceled
only by a written instrument executed by the Escrowing Parties and the Escrow
Agent.
4.06 WAIVERS:
The failure on any party to this Agreement at any time or times to require
performance of any provision under this Agreement shall in no manner affect
the right at a later time to enforce the same performance. A waiver by any
party to this Agreement of any such condition or breach of any term,
covenant, representation, or warranty contained in this Agreement, in any one
or more instances, shall neither be construed as a further or continuing
waiver of any such condition or breach nor a waiver of any other condition or
breach of any other term, covenant, representation or warranty contained in
this Agreement.
4.07 HEADINGS:
Section headings of this Agreement have been inserted for convenience of
reference only and shall in no way restrict or otherwise modify any of the
terms or provisions of this Agreement.
4.08 COUNTERPARTS:
This Agreement may be executed in one or more counterparts, each of which
when executed shall be deemed to be an original, and such counterparts shall
together constitute one and the same instrument.
4.09 RESIGNATION OR REMOVAL OF ESCROW AGENT:
The Escrow Agent may resign at any time by furnishing written notice of its
resignation to the Escrowing Parties. The Escrowing Parties may remove the
Escrow Agent at any time by furnishing to the Escrow Agent a written notice
of its removal. Such resignation or removal, as the case may be, shall be
effective upon delivery of such notice.
[Signatures follow]
IN WITNESS WHEREOF, the Escrowing Parties to this Agreement have each caused
this Escrow Agreement to be duly executed on this third day of February 1999.
Corporate Name: XXXXX XXXXXX PHARMACEUTICALS, INC.
By: /s/Xxxx Xxxxx
Title: Vice President
Address: 0000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Tax I.D. N :
Corporate Name: XXXXXX, INC.
By: /s/Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer and Treasurer
Address: 0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Tax I.D. N :
A copy of all notices to Xxxxx Xxxxxx Pharmaceuticals, Inc. shall be sent to:
IVAX Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Telephone: (000)000-0000
The Escrow Agent by affixing its signature below, hereby acknowledges receipt
of the Escrowed Funds and agrees to hold, administer, and dispose of the
Escrowed Funds in accordance with the terms, conditions, and instructions of
this Agreement and any amendments thereto, including those set forth in
Schedule A.
Norwest Bank Colorado, National Association
Escrow Agent
Date: By:
Account No. Title:
c/o Norwest Investment Management and Trust
Corporate Trust and Escrow Services
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Phone: (000) 000-0000 Fax: (000) 000-0000
SCHEDULE A TO ESCROW AGREEMENT
Joint Written Investment Instructions
Pursuant to Section 1-02(a) of the Escrow Agreement among Xxxxxx, Inc.. a
Colorado corporation ("Seller"); Xxxxx Xxxxxx Pharmaceuticals, Inc., a
Florida corporation] ("Buyer"); and Norwest Bank Colorado, National
Association (the "Escrow Agent"), the Seller and Buyer ("Escrowing Parties")
direct the Escrow Agent to invest the Escrowed Funds as follows:
The sum of [ (US$ )] be invested in the Cash
Investment Fund of the Norwest Advantage Fund Group.
The Escrowed Funds will remain invested in the Norwest Cash Investment Fund
until such time as Escrowing Parties supply new instructions for the
investment of the Escrowed Funds or until the Escrowed Funds are released and
delivered as provided in the Escrow Agreement
IN WITNESS WHEREOF, the parties have executed these instructions by their
authorized representatives effective as of the date first above written.
XXXXXX, INC.
By: /s/Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer and Treasurer
XXXXX XXXXXX
PHARMACEUTICALS, INC.
By: /s/Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President
CONFIDENTIAL TREATMENT OF REDACTED PORTIONS HAS BEEN GRANTED BY THE SEC
