EXHIBIT 4.15
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") made and entered into as of September
29, 1994, by and among PHP Family Healthcare Corporation, a Delaware corporation
("Family"), X.X. Xxxx & Associates, Inc., a Virginia corporation ("JPC"), Xxxx
X. Xxxx, Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxxxx (collectively, the
"Shareholders"), PHP Healthcare Corporation, a Delaware corporation ("PHP"), and
Xxxxxxx X. Xxxxxxxx, III (the "Escrow Agent").
RECITALS
A. Family, JPC, the Shareholders and PHP (the "Escrow Parties") have
entered into a Plan and Agreement of Merger, dated as of September 29, 1994 (the
"Merger Agreement"), pursuant to which the outstanding shares of common stock of
JPC will be converted into, among other things, shares of common stock, $.01 par
value, of PHP ("PHP Common Stock").
B. The Merger Agreement provides that Forty Four Thousand Two Hundred
Eighty Six (44,286) shares of PHP Common Stock (the "Escrow Securities") shall
be deposited and held in escrow in accordance with the terms set forth herein.
C. The Escrow Agent desires to perform the escrow services described
herein, and the Escrow Parties desire to engage the Escrow Agent to perform such
services;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein and in the Merger Agreement, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
TERMS
1. APPOINTMENT OF ESCROW AGENT. The Escrow Agent is hereby appointed to
act as Escrow Agent hereunder and agrees to accept and to hold the Escrow
Securities in accordance with the terms hereof.
2. ESTABLISHMENT OF ESCROW. Pursuant to Article IV of the Merger
Agreement, certificates representing the Escrow Securities registered in the
names of the Shareholders have been deposited with the Escrow Agent, and the
Escrow Agent hereby acknowledges receipt of the Escrow Securities.
3. DECLARATION OF ESCROW. The Escrow Agent hereby declares and agrees
that it will hold and distribute the Escrow Securities, in accordance with and
subject to the provisions of
this Agreement. The Escrow Agent further agrees that it will receive, hold and
distribute as additional Escrow Securities, in accordance with and subject to
the terms of this Agreement, all dividends, distributions, securities, rights,
instruments and proceeds in respect of the Escrow Securities which PHP or the
Shareholders may subsequently deliver to the Escrow Agent.
4. ESCROW PERIOD. The term of this escrow (the "Term") shall commence
immediately upon receipt by the Escrow Agent of the Escrow Securities and shall
expire as provided in Section 7(c) hereof.
5. DISTRIBUTION OF ESCROW SECURITIES.
(a) THE PERFORMANCE CONDITION. The Escrow Securities shall be
retained in escrow on the terms set forth herein until Family determines as
provided in Article IV of the Merger Agreement whether on or before December 31,
1996, (i) it has accrued the JPC Minimum Target Revenues under Qualifying
Contracts (the "Performance Condition"), or (ii) Change in Control of PHP has
occurred. Family shall make such determination and give notice thereof to the
Escrow Agent and the Escrow Parties as soon as reasonably practicable.
(b) RELEASE OF ESCROW SECURITIES TO SHAREHOLDERS. If Family shall give
notice that the Performance Condition has been satisfied or that a Change in
Control of PHP has occurred, the Escrow Securities shall be released to the
Shareholders promptly.
(c) RELEASE OF ESCROW SECURITIES TO PHP. If Family shall give notice
that the Performance Condition has not been satisfied and the Shareholders shall
not, within 20 days after receipt of such notice, give notice that they claim
that the Performance Condition has been satisfied, the Escrow Securities shall
be released to PHP promptly. If the Shareholders give timely notice that they
claim that the Performance Condition has been satisfied, the dispute shall be
resolved in accordance with Section 6 hereof.
6. SETTLEMENT OF DISPUTES. Any dispute among the Escrow Parties that may
arise under this Agreement with respect to: (a) the delivery, ownership or right
to possession of the Escrow Securities; (b) the facts upon which the Escrow
Agent's determinations are based; (c) the duties of the Escrow Agent hereunder;
(d) whether the Performance Condition set forth in Section 5(a) hereof has been
satisfied; and (e) any other questions arising under this Agreement, shall be
determined by (i) mutual agreement of the Escrow Parties (evidenced by
appropriate instructions in writing to the Escrow Agent signed by or on behalf
of all of such parties) within 30 days after such dispute arises, or (ii) if the
Escrow Parties are unable to reach an agreement, and are unable to agree upon
arbitration or some other form of alternative dispute resolution, litigation in
a court of competent jurisdiction. The Escrow Agent shall be under no duty to
institute or defend any proceeding relating to any such dispute and none of the
costs and expenses of any such proceedings shall be borne by the
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Escrow Agent. Pending the resolution of any dispute as provided in this Section
6, the Escrow Agent is authorized and directed to retain the Escrow Securities
in its possession.
7. PROVISIONS CONCERNING THE ESCROW AGENT.
(a) AMENDMENTS AND MODIFICATIONS. The Escrow Agent shall not in any
way be bound or affected by any amendment, modification or cancellation of this
Agreement which increases or alters the obligations of the Escrow Agent under or
pursuant to this Agreement, unless the same shall have been agreed to in writing
by the Escrow Agent.
(b) COMPENSATION. Upon receipt by Buyer and Seller of the Escrow
Agent's written notice itemizing its fees and out-of-pocket expenses incurred in
performing its duties hereunder, the Escrow Agent shall be entitled to payment
(from other than the Escrow Securities) of such fees and reimbursements for such
expenses from PHP, such amounts to be paid within thirty (30) days after such
written notice is given. The Escrow Agent's fee shall be as agreed upon by the
parties, plus all reasonable out-of-pocket expenses payable when billed.
(c) TERMINATION OF THIS ESCROW AGREEMENT. This Agreement shall
terminate upon the release of the Escrow Securities by the Escrow Agent pursuant
to this Agreement.
(d) DUTIES OF ESCROW AGENT. This Agreement sets forth the duties and
obligations of the Escrow Agent with respect to any and all matters pertinent to
its acting as such hereunder. The Escrow Agent shall not have duties or
responsibilities other than those specifically set forth herein and shall act
only in accordance with the provisions hereof. Without limiting the generality
of the foregoing, the Escrow Agent shall not have any duty or responsibility (i)
to enforce or cause to be enforced any of the terms and conditions contained in
the Merger Agreement or (ii) to verify the accuracy or sufficiency of any notice
or other document received by it in connection with this Agreement. The Escrow
Agent shall be entitled to reply upon any instructions or directions to it in
writing under this Agreement signed or presented by the proper party or parties
and shall be entitled to treat as genuine any instruction or document delivered
to the Escrow Agent hereunder and reasonably believed by the Escrow Agent to be
genuine and to have been presented by the proper party or parties, without being
required to determine the authenticity or correctness of any fact stated
therein, or the authority or authorization of the person or persons making
and/or delivering the same to do so.
(e) LIABILITY OF ESCROW AGENT. Neither the Escrow Agent nor any of its
officers, directors, shareholders, partners, employees or agents shall be liable
to the Escrow Parties or any other person or entity for or in respect of any
loss, claim, damage, liability or expense resulting from or arising out of any
act or failure to act by it in connection with this Agreement, other than for
any loss, claim, damage, liability or expense which shall be finally adjudicated
to be the result of gross negligence or willful bad faith on the part of the
Escrow Agent or any such officers, directors, partners, employees or agents.
More
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specifically, (i) the Escrow Agent shall not be liable for any error of judgment
made by it in good faith and (ii) the Escrow Agent may consult with counsel of
its own choice whenever the Escrow Agent shall deem it convenient or
appropriate, and shall have full and complete authorization and protection for
any action taken or suffered by it hereunder in good faith in accordance with
the advice of counsel.
(f) RESIGNATION OF ESCROW AGENT. At any time that the Escrow Agent so
chooses, the Escrow Agent may resign from its duties hereunder by giving not
less than 30 days' written notice to the Escrow Parties. Prior to the expiration
of such 30-day period, the Escrow Parties shall designate, by mutual consent, a
successor escrow agent; PROVIDED that notwithstanding any resignation date set
forth in the Escrow Agent's notice, such resignation shall not take effect until
receipt by the Escrow Agent of an instrument duly executed by a successor escrow
agent evidencing its appointment as Escrow Agent hereunder and acceptance of
this Agreement. If no successor escrow agent is appointed within such 30-day
period, the Escrow Agent may deposit the Escrow Securities with a court of
competent jurisdiction as provided in paragraph (g) below and thereupon the
Escrow Agent shall be discharged of all duties and obligations hereunder.
(g) DEPOSIT OF ESCROW SECURITIES WITH COURT. Notwithstanding anything
herein to the contrary, in the event of any disagreement between any of the
parties to this Agreement, or between them and any other person, resulting in
adverse claims or demands being made against the Escrow Securities, or in the
event the Escrow Agent in good faith is in doubt as to what action it should
take hereunder, the Escrow Agent may be discharged of its duties and obligations
hereunder upon its deposit, at any time after written notice to the Escrow
Parties, of the Escrow Securities with a court of competent jurisdiction.
8. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement has been entered into pursuant to
the Merger Agreement and as such embodies the entire agreement and understanding
among the parties hereto relating to the subject matter hereof and may not be
charged orally, but only by an instrument in writing signed by all the parties
hereto.
(b) NOTICES. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given if the same shall be in
writing and shall be delivered and received personally or sent by facsimile
transmission or overnight delivery service, and addressed as set forth below:
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(i) If to PHP, Family or JPC:
PHP Healthcare Corporation
00000 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
(ii) If to Shareholders:
Xxxx X. Xxxx Xxxxxxx X. Xxxxxx
PHP Healthcare Corporation Shamrock Investments
00000 Xxxxxxxx Xxxx Xxxxx 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000 Xxx Xxxxxxx, Xxxxxxxxxx 00000
(iii) If to the Escrow Agent:
Xxxxxxx X. Xxxxxxxx, III
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
or at such other address or to such other wire instructions as any party may
designate by means of notice given in accordance with this Section 8(b). Any
facsimile transmission not received by the Escrow Agent before 5:00 p.m. eastern
standard time shall be deemed received on the next business day.
(c) HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience only and shall not modify, define, limit or expand
the express provisions of this Agreement.
(d) GOVERNING LAW; SEVERABILITY. This Agreement shall be construed
and interpreted according to the laws of the State of Delaware without regard to
conflicts of law principles.
(e) BINDING NATURE. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns, provided that the Escrow
Agent may not assign its obligations hereunder without the consent of all of the
other parties hereto.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed as original, but all of which
together constitute one and the same agreement, and it shall not be necessary,
in proving the due execution and delivery of this Agreement, to produce or
account for more than one such counterpart.
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(g) DEFINITIONS. Unless expressly provided otherwise herein, all
initially capitalized terms used herein and defined in the Acquisition Agreement
shall have the same meanings ascribed to them in the Acquisition Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the day and year first written.
Attest: X.X. XXXX & ASSOCIATES, INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxx
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Xxxxxxx X. Xxxxxx, Secretary Xxxx X. Xxxx, President
Attest: PHP FAMILY HEALTHCARE CORPORATION
/s/ Xxx Xxxxxxxxx, III By: /s/ Xxxxxxx X. Xxxxxxx
---------------------- ----------------------
Xxx Xxxxxxxxx, III, Secretary Name: Xxxxxxx X. Xxxxxxx
Title: President
Attest: PHP HEALTHCARE CORPORATION
/s/ Xxx Xxxxxxxxx, III By: /s/ Xxxx X. Xxxxx
---------------------- -----------------
Xxx Xxxxxxxxx, III, Secretary Name: Xxxx X. Xxxxx
Title: Sr. Exec. Vice Pres.
/s/ Xxxx X. Xxxx
----------------
Xxxx X. Xxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx
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/s/ Xxxxxxx X. Xxxxxxxx, III
-----------------------------
Xxxxxxx X. Xxxxxxxx, III
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