ESCROW AGREEMENT
This Escrow
Agreement (“Agreement”)
is made and entered into as of this 30th day of January, 2008, by and among:
CorMedix,
Inc., a Delaware corporation (the “Corporation”),
ND
Partners LLC, a Delaware limited liability
company (the “Subscriber”)
and the Secretary of the Corporation (the “Escrow
Agent”).
Recitals
A. The Corporation and
the Subscriber have entered into a Common Stock Subscription Agreement dated as
of the date hereof (the “Subscription
Agreement”), pursuant to which the Corporation is issuing shares of
Common Stock to the Subscriber in consideration for the Subscriber’s performance
under a License and Assignment Agreement dated as of even date therewith (the
“License
Agreement”).
B. The Subscription
Agreement contemplates the establishment of an escrow arrangement to secure
rights of Subscriber to shares of Common Stock upon the achievement of certain
milestones.
Agreement
The
parties, intending to be legally bound, agree as follows:
Section
1. Defined
Terms.
1.1 Capitalized terms
used in this Agreement and not otherwise defined herein shall have the meanings
given to them in the Subscription Agreement and the License Agreement, as
applicable.
Section
2. Escrow.
2.1 Shares and Stock Powers Placed in
Escrow. Upon execution of the Subscription Agreement, in
accordance with Section 1(b) of the Subscription Agreement, (a) the Corporation
shall issue certificates for shares of Common Stock registered in the name of
Subscriber, evidencing the shares of Common Stock to be held in escrow on behalf
of the Subscriber in accordance with this Agreement, and (b) the Subscriber
shall deliver to the Corporation five “assignments separate from certificate”
(“Stock
Powers”) endorsed by Subscriber. The shares of Common Stock
being held in escrow pursuant to this Agreement (the “Escrow
Shares”) shall collectively constitute an escrow fund (the “Escrow
Fund”) to secure the rights of Subscriber to receive certain shares of
Common Stock pursuant to the Subscription Agreement. The Escrow Agent
agrees to accept delivery of the Escrow Fund and to hold the Escrow Fund in an
escrow account (the “Escrow
Account”), subject to the terms and conditions of this
Agreement.
2.2 Voting of Escrow
Shares. The record owner of the Escrow Shares shall be
entitled to exercise all voting rights with respect to such Escrow
Shares.
2.3 Dividends, Etc. The
Corporation and the Subscriber agree among themselves, for the benefit of the
Corporation and the Escrow Agent, that any shares of the Corporation’s stock or
other property (including ordinary cash dividends) distributable or issuable
(whether by way of dividend, stock split or otherwise) in respect of or in
exchange for any Escrow Shares (including pursuant to or as a part of a merger,
consolidation, acquisition of property or stock, reorganization or liquidation
involving the Corporation) shall not be distributed or issued to the beneficial
owners of such Escrow Shares, but rather shall be distributed or issued to and
held by the Escrow Agent in the Escrow Account as part of the Escrow
Fund. Any securities or other property (including ordinary cash
dividends) received by the Escrow Agent in respect of any Escrow Shares held in
escrow as a result of any stock split or combination of shares of Common Stock,
payment of a stock dividend or other stock distribution in or on shares of
Common Stock, or change of Common Stock into any other securities pursuant to or
as a part of a merger, consolidation, acquisition of property or stock,
reorganization or liquidation involving the Corporation, or otherwise, shall be
held by the Escrow Agent as, and shall be included within the definition of,
Escrow Shares.
2.4 Transferability. The
interests of the Subscriber in the Escrow Account and in the Escrow Shares 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 Corporation and the Escrow Agent shall have
received written notice of such assignment or transfer.
2.5 Fractional
Shares. No fractional shares of Common Stock or other
securities shall be retained in or released from the Escrow Account pursuant to
this Agreement. In connection with any release of Escrow Shares from
the Escrow Account, the Corporation and the Escrow Agent shall be permitted to
“round down” or to follow such other rounding procedures as the Corporation
reasonably determines to be appropriate in order to avoid retaining any
fractional shares in the Escrow Account and in order to avoid releasing any
fractional shares from the Escrow Account.
2.6 Trust Fund. The
Escrow Fund shall be held as a trust fund and shall not be subject to any lien,
attachment, trustee process or any other judicial process of any creditor of the
Subscriber or of any party hereto. The Escrow Agent shall hold and
safeguard the Escrow Fund until the Termination Date.
Section
3. Release of
Escrow Shares.
3.1 Within five business
days after each Milestone Date (as defined below), the Escrow Agent shall
distribute or cause to be distributed to the Subscriber at its business address
25% of the original number of Escrow Shares (or other property held in the
Escrow Account), if any, held on such Milestone Date.
3.2 The distributions
described in Section 3.1 above shall occur on the following dates (each a “Milestone
Date”):
(a) The
date of the first commercial sale of a Licensed Product in the United
States.
(b) The
date of the first commercial sale of a Licensed Product in the European
Union.
(c) The
date 30 days after the end of the first calendar quarter during which aggregate,
lifetime Net Sales of all Licensed Products exceed $200,000,000.
(d) The
date 30 days after the end of the first calendar quarter during which aggregate,
lifetime Net Sales of all Licensed Products exceed $500,000,000.
3.3 If any Escrowed
Shares (or other property held in the Escrow Account) have not been delivered to
the Subscriber pursuant to Section 3.1 by December 31, 2022 (or, subject to
Section 6, such earlier date if the License Agreement is terminated), the Escrow
Agent shall, on such date, distribute or cause to be distributed to the
Corporation at its business address the total number of such Escrow Shares (or
other property held in the Escrow Account) for cancellation. The
Subscriber will have no further right, title or interest to such Escrowed Shares
distributed to the Corporation in accordance with this Section 3.3.
3.4 The Escrow Agent is
not the stock transfer agent for the Common Stock. Accordingly,
whenever a distribution of a number of shares of Common Stock is to be made, the
Escrow Agent must requisition the appropriate number of shares from such stock
transfer agent, delivering to it the appropriate stock
certificates. For purposes of this Agreement, the Escrow Agent shall
be deemed to have delivered Common Stock to the Subscriber when the Escrow Agent
has delivered such certificates to such stock transfer agent with instructions
to deliver it to the Subscriber.
Section
4. Stock Splits.
4.1 All numbers contained
in, and all calculations required to be made pursuant to, this Agreement with
respect to the Escrow Shares shall be adjusted as appropriate to reflect any
stock split, reverse stock split, stock dividend or similar transaction effected
by the Corporation after the date hereof.
Section
5. Limitation of Escrow Agent’s Liability.
5.1 The Escrow Agent
undertakes to perform such duties as are specifically set forth in this
Agreement only and shall have no duty under any other agreement or document, and
no implied covenants or obligations shall be read into this Agreement against
the Escrow Agent. The Escrow Agent shall incur no liability with
respect to any action taken by him or for any inaction on his part in reliance
upon any notice, direction, instruction, consent, statement or other document
believed by him in good faith to be genuine and duly authorized, nor for any
other action or inaction except for his own gross negligence or willful
misconduct. In all questions arising under this Agreement, the Escrow
Agent may rely on the advice of counsel, and for anything done, omitted or
suffered in good faith by the Escrow Agent based upon such advice the Escrow
Agent shall not be liable to anyone. In no event shall the Escrow
Agent be liable for incidental, punitive or consequential damages, except for in
the case of gross negligence or willful misconduct by the Escrow
Agent.
5.2 The Corporation and
the Subscriber hereby agree to indemnify the Escrow Agent for, and hold him
harmless against, any loss, liability or expense incurred without negligence or
willful misconduct on the part of Escrow Agent, arising out of or in connection
with the Escrow Agent carrying out his duties hereunder. This right
of indemnification, compensation and reimbursement shall survive the termination
of this Agreement, and the resignation of the Escrow Agent.
Section
6. Termination. This
Agreement shall terminate on the Termination Date. The “Termination
Date” shall be the earlier of (i) the date that all Escrowed Shares have
been released and distributed to either the Subscriber or the Corporation in
accordance with Section 3 above or the (ii) the termination of the License
Agreement. Notwithstanding the foregoing, if the License Agreement is
terminated by the Corporation pursuant to Article 11.4 of the License Agreement,
then this Agreement shall survive such termination until the date described in
clause (i) of the preceding sentence; provided, that Escrowed Shares shall
continue to be released and distributed in accordance with Section 3 hereof
solely with respect to products the manufacture, use or sale of which would
infringe one or more issued patents licensed pursuant to the Exclusive License
and Consulting Agreement between Subscriber and Xxxx-Xxxxxxxx Polaschegg, dated
as of April 29, 2005.
Section
7. Successor Escrow
Agent. In the event the individual serving as Escrow Agent is
no longer serving as the secretary of the Corporation, or if the Escrow Agent
becomes unavailable or unwilling to continue as escrow agent under this
Agreement, the Escrow Agent may resign and be discharged from his duties and
obligations hereunder by giving his written resignation to the parties to this
Agreement. Such resignation shall take effect not less than 30 days
after it is given to all parties hereto. In any such event, the
Corporation may appoint a successor Escrow Agent, who may be the successor
secretary of the Corporation, if applicable. The successor Escrow
Agent shall, without further acts, be vested with all the estates, property
rights, powers and duties of the predecessor Escrow Agent as if originally named
as Escrow Agent herein. The Escrow Agent shall act in accordance with
written instructions from the Corporation as to the transfer of the Escrow Fund
to a successor escrow agent.
Section
8. Miscellaneous.
8.1 Attorneys’ Fees. In
any action at law or suit in equity to enforce or interpret this Agreement or
the rights of any of the parties hereunder, the prevailing party in such action
or suit shall be entitled to receive a reasonable sum for its attorneys’ fees
and all other reasonable costs and expenses incurred in such action or
suit.
8.2 Notices. Any notice
or other communication required or permitted to be delivered to any party under
this Agreement shall be in writing and shall be deemed properly delivered, given
and received (a) when delivered by hand, or (b) two business days after sent by
registered mail or, by courier or express delivery service, or by facsimile, to
the address or facsimile telephone number set forth below (or to such other
address or facsimile telephone number as such party shall have specified in a
written notice given to the other parties hereto):
if
to the Corporation:
CorMedix,
Inc.
00 Xxxxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attn:
President
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
if
to the Subscriber:
ND
Partners LLC
Xxx Xxx
Xxxxxx
Xxxxxx,
XX 00000
Attention: Xxxxxxxxxx
Xxxxxxxxxx
With a copy to:
BRL Law Group LLC
00 Xx. Xxxxx Xxxxxx, Xxxxx
000
Xxxxxx, XX 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
if
to the Escrow Agent:
Corporate
Secretary
CorMedix,
Inc.
00 Xxxxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Secretary
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
With a
copy to:
Paramount BioSciences, LLC
000
Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxx Xxxxx
Telephone:
(000) 000-0000
8.3 Headings. The
bold-faced headings contained in this Agreement are for convenience of reference
only, shall not be deemed to be a part of this Agreement and shall not be
referred to in connection with the construction or interpretation of this
Agreement.
8.4 Counterparts. This
Agreement may be executed in several counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one agreement.
8.5 Applicable Law;
Jurisdiction. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof. In any action
between the parties arising out of or relating to this Agreement or any of the
transactions contemplated by this Agreement: (a) each of the parties
irrevocably and unconditionally consents and submits to the exclusive
jurisdiction and venue of the state and federal courts located in the Borough of
Manhattan, County of New York; (b) if any such action is commenced in a state
court, then, subject to applicable law, no party shall object to the removal of
such action to any federal court located in the Borough of Manhattan, County of
New York; (c) each of the parties irrevocably waives the right to trial by jury;
and (d) each of the parties irrevocably consents to service of process by first
class certified mail, return receipt requested, postage prepaid, to the address
at which such party is to receive notice in accordance with Section
8.2.
8.6 Successors and Assigns. This
Agreement shall be binding upon and shall inure to the benefit of each of the
parties hereto and each of their respective permitted successors and assigns, if
any. The Subscriber may not assign its rights under this Agreement
without the express prior written consent of the Corporation, and any attempted
assignment of this Agreement or any of such rights by the Subscriber without
such consent shall be void and of no effect.
8.7 Waiver. No
failure on the part of any party to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of any party in exercising
any power, right, privilege or remedy under this Agreement, shall operate as a
waiver of such power, right, privilege or remedy; and no single or partial
exercise of any such power, right, privilege or remedy shall preclude any other
or further exercise thereof or of any other power, right, privilege or
remedy. No party shall be deemed to have waived any claim arising out
of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such party; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
8.8 Amendment. This
Agreement may not be amended, modified, altered or supplemented other than by
means of a written instrument duly executed and delivered on behalf of all of
the parties hereto.
8.9 Severability. Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified. In the event such
court does not exercise the power granted to it in the prior sentence, the
parties hereto agree to replace such invalid or unenforceable term or provision
with a valid and enforceable term or provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid or
unenforceable term.
8.10 Parties in Interest. Except
as expressly provided herein, none of the provisions of this Agreement, express
or implied, is intended to provide any rights or remedies to any person other
than the parties hereto and their respective successors and assigns, if
any.
8.11 Entire Agreement. This
Agreement and the other agreements referred to herein set forth the entire
understanding of the parties hereto relating to the subject matter hereof and
supersede all prior agreements and understandings among or between any of the
parties relating to the subject matter hereof.
8.12 Waiver of Jury
Trial. Each of the parties hereto hereby irrevocably waives
any and all right to trial by jury in any action arising out of or related to
this Agreement or the transactions contemplated hereby.
8.13 Tax
Reporting Information and Certification of Tax Identification
Numbers.
(a) The parties hereto
agree that, for tax reporting purposes, all interest on or other income, if any,
attributable to the Escrow Fund or any other amount held in escrow by the Escrow
Agent pursuant to this Agreement shall be allocable to the
Subscriber.
(b) The Corporation and
the Subscriber agree to provide the Escrow Agent with certified tax
identification numbers for each of them by furnishing appropriate forms W-9 (or
Forms W-8, in the case of non-U.S. persons) and any other forms and documents
that the Escrow Agent may reasonably request (collectively, “Tax Reporting
Documentation”) to the Escrow Agent within 30 days after the date
hereof. The parties hereto understand that, if such Tax Reporting
Documentation is not so furnished to the Escrow Agent, the Escrow Agent shall be
required by the Code to withhold a portion of any interest or other income
earned on the investment of monies or other property held by the Escrow Agent
pursuant to this Agreement, and to immediately remit such withholding to the
Internal Revenue Service.
8.14 Cooperation. The
Subscriber agrees to cooperate fully with the Corporation and the Escrow Agent
and to execute and deliver such further documents, certificates, agreements and
instruments and to take such other actions as may be reasonably requested by the
Corporation or the Escrow Agent to evidence or reflect the transactions
contemplated by this Agreement and to carry out the intent and purposes of this
Agreement.
8.15 Construction.
(a) For purposes of this
Agreement, whenever the context requires: the singular number shall include the
plural, and vice versa; the masculine gender shall include the feminine and
neuter genders; the feminine gender shall include the masculine and neuter
genders; and the neuter gender shall include masculine and feminine
genders.
(b) The parties hereto
agree that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not be applied in the construction or
interpretation of this Agreement.
(c) As used in this
Agreement, the words “include” and “including,” and variations thereof, shall
not be deemed to be terms of limitation, but rather shall be deemed to be
followed by the words “without limitation.”
(d) Except as otherwise
indicated, all references in this Agreement to “Sections” and “Exhibits” are
intended to refer to Sections of this Agreement and Exhibits to this
Agreement.
In Witness
Whereof, the parties have duly caused this Agreement to be executed as of
the day and year first above written.
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Corporation:
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CORMEDIX,
INC.
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By:
/s/ Xxxxx
Xxxxxx
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Name: Xxxxx
Xxxxxx
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Title: CEO
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Subscriber:
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ND
PARTNERS LLC
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By: /s/ Xxxxxxxxxx
Xxxxxxxxxx
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Xxxxxxxxxx
Xxxxxxxxxx, managing member
of
Spinnaker Capital, LLC, the managing
member
of ND Partners LLC
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Escrow
Agent:
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SECRETARY, CORMEDIX,
INC.
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By: /s/ Xxxxxxx
Xxxxx
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Name: Xxxxxxx
Xxxxx
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Title:
Secretary
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