Exhibit I
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of June 11, 1999, (the "Agreement")
by and among Zuellig Group N.A., Inc., a Delaware corporation (the "ZGNA"),
Xxxxxx, Inc., a Colorado corporation (the "Company"), Zuellig Botanicals, Inc.,
a Delaware Corporation ("ZBI") and American Securities Transfer & Trust, Inc.,
as Escrow Agent (the "Escrow Agent").
R E C I T A L S
WHEREAS, ZGNA, ZBI, the Company and certain other parties are
parties to an Agreement and Plan of Merger (the "Merger Agreement"), dated as of
December 8, 1998, pursuant to which, among other things, the Company acquired
three subsidiaries from ZGNA and ZBI in exchange for shares of Common Stock, par
value $0.001 per share, of the Company (the "Common Stock");
WHEREAS, pursuant to the Merger Agreement, the Company and
ZGNA have agreed to have the Escrow Agent hold 1,083,078 shares of Common Stock
registered in the name of ZGNA, and 1,323,761 shares of Common Stock registered
in the name of ZBI1 (the ratio of 45 to 55 being the "ZGNA-ZBI Ratio"), on the
terms
--------
1 This amount in total will equal the lesser of (a) such number of shares
of Common Stock as will result in ZGNA and ZBI owning (excluding the
Escrow Shares) 42% of the shares of Common Stock outstanding after
giving effect to the transaction and (b) such number of shares of
Common Stock as will result in ZGNA and ZBI owning (excluding the
Escrow Shares) 40% of the shares of Common Stock outstanding on a fully
diluted basis after giving effect to the transaction. The shares of
Common Stock for each of ZGNA and ZBI to be deposited in escrow will be
in proportion to the shares of Common Stock received in the merger. For
purposes of this calculation, the shares of Common Stock outstanding on
a fully diluted basis shall equal the number of shares of Common Stock
issued and outstanding on the Closing Date, plus all shares of Common
Stock issuable (i) upon the exercise of all outstanding options or
warrants to acquire shares of Common Stock (whether or not then
exercisable) other than the ZGNA Option or (ii) upon conversion or
exchange of any securities convertible into or exchangeable for shares
of Common Stock.
and subject to the conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
1. Appointment of Escrow Agent; Escrow Deposit. The Company
and ZGNA hereby appoint the Escrow Agent as the escrow agent under this
Agreement, and the Escrow Agent accepts such appointment according to the terms
and conditions set forth herein. On the date hereof, the Company, ZGNA and ZBI
have deposited with the Escrow Agent, and the Escrow Agent hereby acknowledges
receipt of, certificates ("Certificates") registered in the name of ZGNA and ZBI
evidencing 1,083,078 shares and 1,323,761 shares of Common Stock, respectively
(the "Escrow Shares"). The Escrow Agent shall hold, manage, administer,
distribute and dispose of the Escrow Shares and Proceeds (as defined below) in
accordance with the terms and conditions of this Agreement. The parties hereto
acknowledge that the Escrow Shares have been pledged to Xxxxx Fargo Bank,
National Association.
2. Payments From Escrow. The Escrow Agent shall hold the
Escrow Shares and Proceeds in escrow in accordance with this Agreement and shall
make payments from the Escrow Shares and Proceeds only as follows or as provided
in Section 3 below:
(a) On November 8, 1999 (the "Claim Expiration Date"), the
Escrow Agent shall deliver the respective Escrow Shares and Proceeds to Xxxxx
Fargo Bank, National Association at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxx, unless, prior to the Claim
Expiration Date, the Escrow Agent shall have received a Sale Notice (as defined
below) from the Company.
(b) Any delivery required to be made hereunder by the Escrow
Agent shall be delivered in accordance with written instructions given to the
Escrow Agent by the party entitled under this Agreement to receive such
delivery.
3. Claims. The procedure for the delivery of Escrow
Shares and Proceeds shall be as follows:
(a) If a Paclitaxel Transaction has occurred prior to the
Claim Expiration Date, the Company will provide written notice (a "Sale Notice")
to the Escrow Agent and ZGNA to the effect that one or more transactions have
occurred that constitute a Paclitaxel Transaction (as defined below).
2
(b) At any time up to the conclusion of the final accounting,
ZGNA may request additional information regarding any Paclitaxel Transaction and
the related calculations of Net Proceeds, Transaction Expenses and gross
proceeds, and the Company shall provide all available financial information
related to the transaction.
(c) For purposes hereof:
(i) a "Paclitaxel Transaction" means a sale
of any tangible or intangible asset of the Company (which
includes any asset of its subsidiaries) which is a part of the
paclitaxel business of the Company (a "Paclitaxel Asset"),
whether in bulk, as a going concern, by occasional sale, or
otherwise, at any time on or after December 9, 1998 and on or
before October 31, 1999. Exhibit I hereto includes a
non-exclusive list of assets which would be included in the
category of Paclitaxel Asset.
(ii) "Net Proceeds" means the gross cash
proceeds received by the Company on or before October 31,
1999, in connection with a Paclitaxel Transaction, less the
Paclitaxel Expenses, less Accrued Termination Expenses, and
less $3,000,000.
(iii) "Paclitaxel Expenses" means the sum
of: (a) all cash expenses incurred on or after December 9,
1998, through and including October 31, 1999, in connection
with the Termination of the Paclitaxel Business or in
connection with any Paclitaxel Transaction, plus (b) all
Accrued Termination Expenses as of October 31, 1999. Exhibit 2
hereto is a nonexclusive list of cash expenses that would be
considered Paclitaxel Expenses.
(iv) "Accrued Termination Expenses" means
the estimated present value as of October 31, 1999, of the
cash cost of disposing of all Paclitaxel Assets and otherwise
with respect to Termination of the Paclitaxel Business which
have not been disposed of by the Company as of October 31,
1999. Present value shall be calculated using an interest rate
of eight percent (8%). Accrued Termination Expenses is not
based upon accounting write-offs or write downs and is solely
calculated on an estimated cash expenditure basis. Exhibit 3
hereto is a non-exclusive list of possible Accrued Termination
Expenses.
(v) "Termination of the Paclitaxel Business"
means those activities necessary to be done so that the
3
Company no longer owns assets or employs personnel used in the
paclitaxel business or has liabilities related to the
paclitaxel business other than liabilities in connection with
the performance of normal functions related to sold inventory
(such as stability testing and historical types of warranty
performance obligations, but actual pending warranty claims to
the extent not covered by insurance shall be a liability that
shall be an expense). Assets or personnel that are utilized in
other parts of the Company's business are not considered as
part of a Termination of the Paclitaxel Business to the extent
that such utilization is bona fide, so that, for example, the
bona fide use for herbal industry purposes of laboratory
equipment that was previously used in paclitaxel research
would result in there not being an expense charged for that
equipment.
(d) The Escrow Agent shall within five (5) days furnish
ZGNA with a copy of any Sale Notice received by it.
(e) If any Sale Notice has been given, then the following
procedures shall apply:
The Company, ZGNA and ZBI shall meet within ten (10) days
after the Claim Expiration Date to determine each element of the calculation of
the Net Proceeds. The parties shall freely share information and attempt to
agree on the final amount of the Net Proceeds within thirty (30) days after the
Claim Expiration Date. If the parties cannot agree within forty five (45) days
after the Claim Expiration Date, they shall submit the matter to arbitration as
provided for in the Merger Agreement. The parties (or arbitrator) shall then
jointly direct the Escrow Agent to cause the disbursement of the Escrow Shares
and Proceeds to the Company, ZGNA and ZBI by directing the Company's transfer
agent to cancel the Escrow Shares in an amount equal to the number (the
"Canceled Shares") derived by dividing the Net Proceeds by $3.50 and as between
ZGNA and ZBI in the ZGNA-ZBI Ratio. The Canceled Shares shall be specified in a
notice from the Escrow Agent to the Company and ZGNA and in the event of a
fractional share the number of shares to be canceled shall be rounded down to
the next whole share. The Company shall promptly deliver stock certificates for
the balance of the Escrow Shares to the Escrow Agent, registered in the name of
ZGNA and ZBI, respectively, and bearing all the legends on the Certificates. All
Proceeds shall follow the Escrow Shares to which the Proceeds relate and shall
be disbursed to the person receiving the respective Escrow Share (except for
Escrow Shares delivered to the Company's transfer agent), and any reference
herein to delivery of Escrow Shares (except to the transfer agent) shall include
delivery of Proceeds.
4
(f) If at the end of the forty-five day period after the end
of the Claim Expiration period the parties have not agreed on the number of
Canceled Shares, within three business days thereafter the parties will issue
instructions to the Escrow Agent specifying the number of Escrow Shares which
are in dispute ("Disputed Escrow Shares"), the number to be Canceled Shares and
the number to be delivered to ZGNA and ZBI as provided in the preceding
subparagraph. The Escrow Agent and the Company shall take all steps necessary to
issue certificates to ZGNA and ZBI in respect of such shares and to cause
residual certificates representing the Disputed Escrow Shares to be delivered to
the Escrow Agent.
Certificates representing the Disputed Escrow Shares shall be
released by the Escrow Agent from the escrow only either (i) in accordance with
a joint written instruction by ZGNA and the Company or (ii) if and to the extent
consistent with a copy of a final judgment by or order of a court of competent
jurisdiction with respect to which any period of time to appeal such judgment or
order shall have lapsed pertaining to the Disputed Escrow Shares, sent to the
Escrow Agent by ZGNA or the Company, in any case accompanied by a certification
that any period of time to file an appeal of such judgment or order has lapsed
and no such appeal has been filed or is otherwise pending (a "Final
Determination").
4. Conditions to Escrow. The Escrow Agent agrees to hold the
Escrow Shares and Proceeds and to perform in accordance with the terms and
provisions of this Agreement. The Company, ZBI and ZGNA agree that the Escrow
Agent does not assume any responsibility for the failure of the Company or ZGNA
to perform in accordance with the Merger Agreement or this Agreement. The
acceptance by the Escrow Agent of its responsibilities hereunder is subject to
the following terms and conditions, which the parties hereto agree shall govern
and control with respect to the Escrow Agent's rights, duties, liabilities and
immunities:
(a) The Escrow Agent may conclusively rely, and shall be
protected in acting or refraining from acting upon, any written notice,
certification, request, waiver, consent, receipt or other paper or document
furnished to it, not only as to its due execution and validity and effectiveness
of its provisions but also as to the truth and accuracy of any information
therein contained which the Escrow Agent reasonably believes to be genuine and
to have been signed and presented by the proper party or parties. Should it be
necessary for the Escrow Agent to act upon any instructions, directions,
documents or instruments issued or signed by or on behalf of any corporation,
fiduciary, or individual acting on behalf of another party hereto, it shall not
be necessary for the Escrow Agent to inquire into such
5
corporation's, fiduciary's or individual's authority, capacity, existence or
identity. The Escrow Agent is also relieved from the necessity of satisfying
itself as to the authority of the persons executing this Agreement in a
representative capacity. It is understood that any references herein to joint
instructions or joint written instructions or words of similar import include
any instructions signed in counterpart.
(b) The Escrow Agent shall not be liable for any error of
judgment or for any act done or step taken or omitted by it in good faith, or
for any mistake of fact or law, or for anything which it may do or refrain from
doing in connection herewith, except for its own gross negligence or willful
misconduct.
(c) The Escrow Agent may consult with, and obtain advice from,
legal counsel in the event of any question as to any of the provisions hereof or
the duties hereunder, and it shall incur no liability and shall be fully
protected in acting in good faith in accordance with the opinion and
instructions of such counsel. The reasonable costs of such counsel's services
shall be paid to the Escrow Agent in accordance with Section 7 below.
(d) The Escrow Agent shall have no duties except those which
are expressly set forth herein and it shall not be bound by (i) the Merger
Agreement or any agreement of the other parties hereto (whether or not it has
any knowledge thereof) or by any notice of a claim, or demand with respect
thereto, or (ii) any waiver, modification, amendment, termination or rescission
of this Agreement unless the Escrow Agent agrees thereto in writing.
(e) The Escrow Agent may resign and be discharged from its
duties and obligations hereunder by giving notice in writing of such resignation
specifying a date (no earlier than 30 days following the date of such notice)
when such resignation will take effect, provided, however, that until a
successor escrow agent is appointed by ZGNA and the Company and such successor
accepts such appointment, the Escrow Agent shall continue to hold the Escrow
Shares and otherwise comply with the terms of this Agreement; provided further
that the parties to this Escrow Agreement agree to use their best efforts to
mutually agree on a successor escrow agent within 30 days after the giving of
Escrow Agent's notice and if no such successor escrow agent shall be appointed
within 30 days of the Escrow Agent providing its notice, the Escrow Agent may,
at the expense of the Company and ZGNA, (i) appoint a successor escrow agent
which shall be a national or state-chartered banking, trust or savings
association, (ii) petition any court of competent jurisdiction for the
appointment of a successor escrow agent or (iii) may deposit the Escrow Shares
and Proceeds ("Escrow Deposit") with the Clerk of the United States District
Court for the District of
6
Colorado, or with the office of the clerk of registry of any other court of
competent jurisdiction, at which time the Escrow Agent's duties hereunder shall
terminate. Any successor escrow agent shall execute and deliver an instrument
accepting such appointment and it shall, without further acts, be vested with
all the estates, properties, rights, powers and duties of the predecessor escrow
agent as if originally named as escrow agent. The resigning Escrow Agent shall
thereupon be discharged from any further obligations under this Escrow
Agreement.
(f) Upon delivery of all of the entire Escrow Shares to ZGNA,
to the Transfer Agent for cancellation in full, or to ZGNA after prior delivery
to the Transfer Agent, as the case may be, and the Proceeds, pursuant to the
terms of Section 3 above, or to a successor escrow agent, the Escrow Agent shall
thereafter be discharged from any further obligations hereunder. The Escrow
Agent is hereby authorized, in any and all events, to comply with and obey any
and all final judgments, orders and decrees (not subject to appeal) of any court
of competent jurisdiction which may be filed, entered or issued, and, if it
shall so comply or obey, it shall not be liable to any other person by reason of
such compliance or obedience.
(g) The Escrow Agent shall not have any responsibility or
liability for the completeness, correctness or accuracy of any transactions
between ZGNA and ZBI, on the one hand, and the Company, on the other hand.
(h) In the event that the Escrow Agent shall be uncertain as
to its duties or rights hereunder or shall receive instructions with respect to
the Escrow Shares or Proceeds which, in its sole opinion, are in conflict with
either other instructions received by it or any provision of this Agreement, it
shall without liability of any kind, be entitled to hold the Escrow Shares and
Proceeds pending the resolution of such uncertainty to the Escrow Agent's sole
satisfaction, by final judgment of a court or courts of competent jurisdiction
or otherwise, or the Escrow Agent, at its option, may, in final satisfaction of
its duties hereunder, deposit the Escrow Shares and Proceeds with the Clerk of
the United States District Court for the District of Colorado or with the office
of the clerk of registry of any other court of competent jurisdiction.
5. Indemnification. From and at all times after the date of this Escrow
Agreement, the Company, ZBI and ZGNA (the "Indemnifying Parties") shall, except
as otherwise hereinafter provided, to the fullest extent permitted by law,
indemnify and hold harmless Escrow Agent and each partner, employee, attorney,
agent and affiliate of Escrow Agent, (collectively, the "Indemnified Parties")
against any and all actions, claims
7
(whether or not valid), losses, damages, liabilities, costs and expenses of any
kind or nature whatsoever (including without limitation reasonable attorneys'
fees, costs and expenses) incurred by or asserted against any of the Indemnified
Parties from and after the date hereof, whether direct, indirect or
consequential, as a result of or arising from or in any way relating to any
claim, demand, suit, action or proceeding (including any inquiry or
investigation) by any person, including without limitation the Indemnifying
Parties, whether threatened or initiated, asserting a claim for any legal or
equitable remedy against any person under any statute or regulation, including,
but not limited to, any federal or state securities laws, or under any common
law or equitable cause or otherwise, arising from or in connection with the
negotiation, preparation, execution, performance or failure of performance of
this Escrow Agreement or any transactions contemplated herein, whether or not
any such Indemnified Party is a party to any such action, proceeding, suit or
the target of any such inquiry or investigation; provided, however, that no
Indemnified Party shall have the right to be indemnified hereunder for any
liability finally determined by a court of competent jurisdiction, subject to no
further appeal, to have resulted solely from the gross negligence or willful
misconduct of such Indemnified Party. If any such action or claim shall be
brought or asserted against any Indemnified Party, such Indemnified Party shall
promptly notify the Indemnifying Parties in writing, and the Indemnifying
Parties shall assume the defense thereof, including the employment of counsel
and the payment of all expenses. Such Indemnified Party shall, in its sole
discretion, have the right to employ separate counsel, (who may be selected by
such Indemnified Party in its sole discretion) in any such action and to
participate in the defense thereof, and the fees and expenses of such counsel
shall be paid by such Indemnified Party, except that the Indemnifying Parties
shall be required to pay such fees and expenses if (i) the Indemnifying Parties
agree to pay such fees and expenses (ii) the Indemnifying Parties shall fail, in
the reasonable discretion of such Indemnified Party, to employ counsel
satisfactory to the Indemnified Party in any such action of proceeding, (iii)
the Indemnifying Parties are the plaintiff in any such action or proceeding, or
(iv)the named parties to any such action or proceeding (including any impleaded
parties) include both Indemnified Party and the Indemnifying Parties, and the
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to it which are different from or additional to
those available to the Indemnifying Parties, the Indemnifying Parties shall be
liable to pay fees and expenses of counsel pursuant to the preceding sentence.
All such fees and expenses payable by the Indemnifying Parties pursuant to the
foregoing sentence shall be paid from time to time as incurred, both in advance
of and after the final
8
disposition of such action or claim. The obligations of the Indemnifying Parties
under this Section 5 shall survive any termination of this Escrow Agreement and
the resignation or renewal of Escrow Agent.
6. Banking Days. If any date on which the Escrow Agent is
required to make a delivery pursuant to the provisions hereof is not a banking
day, then the Escrow Agent shall make such investment or delivery on the next
succeeding banking day.
7. Escrow Costs; No Right of Set-off. The Escrow Agent shall
be entitled to be paid a fee for its services pursuant to the attached Fee
Schedule and to be reimbursed for its reasonable costs and expenses hereunder
(including reasonable counsel fees), which fees, costs and expenses shall be
paid from time to time by the Company. Nothing in this Section 7 limits the
Escrow Agent's rights against the Company and ZGNA for the payment of amounts
due to the Escrow Agent under Section 5 above or the Escrow Agent's fees, costs
and expenses hereunder.
The Escrow Agent acknowledges and agrees that it is holding
the Escrow Shares and Proceeds in its capacity as escrow agent and that it has
no right to apply amounts in the Escrow Deposit against any obligations of (a)
the other parties to this Agreement that do not arise under this Agreement or
(b) the Company.
8. Proceeds, Investment of Proceeds; Split Adjustment;
Voting.
(a) The term "Proceeds" means, as to each Escrow Share, any
stock, cash or other dividend or distribution (whether or not liquidating or a
return of capital) made in respect of an Escrow Share, including any resulting
from a subdivision, combination or reclassification of the outstanding capital
stock of the Company or as a result of a merger, consolidation, acquisition or
other exchange of assets, to which the Company may be a party or otherwise.
(b) The Escrow Agent may invest all cash Proceeds in an
insured savings account in a United States federal or state chartered bank with
total assets in excess of $100,000,000, and the Escrow Agent shall have no
obligation to maximize the rate of return thereof. The Escrow Agent has no duty
to convert any Proceeds received in any form other than cash, to cash, and may
hold any such non-cash Proceeds in the form received.
(c) The number of Escrow Shares to be treated as Canceled
Shares and Disputed Shares shall be equitably adjusted for stock splits, stock
dividends paid in capital stock of the
9
Company, and stock combinations, in respect of Common Stock. ZGNA and the
Company shall deliver joint instructions to Escrow Agent as to such adjustment.
(d) ZGNA and ZBI shall be entitled to exercise all voting
rights as to all Escrow Shares other than Canceled Shares.
9. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado applicable to
contracts made and to be performed entirely within such State.
(b) Paragraph and Section Headings. The headings of the
sections and subsections of this Agreement are inserted for convenience only and
shall not be deemed to constitute a part thereof.
(c) Notices.
(i) All communications under this Agreement shall be in
writing and shall be delivered by hand, by facsimile or
mailed by overnight courier or by registered mail or
certified mail, postage prepaid:
(1) if to ZGNA or ZBI, at 0000 Xx Xxxxxxxx Xxxxxx, Xxxx Xxxxx,
Xxxxxxxxxx 00000-0000 (facsimile: (000) 000-0000), marked for
the attention of President, or at such other address as ZGNA
may have furnished the Company in writing (with a copy to
Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX
00000-0000, Attention: Xxxxxx X. Xxxxxx, Esq. (facsimile:
212-728-8111), or at such other address it may have furnished
the Company and the Escrow Agent in writing), or
(2) if to the Company, at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (facsimile: (000) 000-0000), marked for the
attention of Xxxx Xxxxx, or at such other address as the
Company may have furnished ZGNA in writing (with a copy to
Xxxxxxxx, Xxxxx & Xxxxxxx, P.C., 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxx, Esq.
(facsimile: 303-449-5426) or at such other address as it may
have furnished in writing to ZGNA and the Escrow Agent), or
(4) if to the Escrow Agent and Transfer Agent, at American
Securities Transfer & Trust, Inc., 000 Xxxxx Xxxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxxxx 00000 (facsimile: (000) 000-0000),
marked for the attention of Corporate
10
Trust Department, or at such other address as it may have
furnished in writing to ZGNA, the Company and the Escrow
Agent).
(ii) Any notice so addressed shall be deemed to be given:
if delivered by hand or by facsimile, on the date of such
delivery; if delivered by courier, on the first business
day following the date of the delivery to the courier; and
if mailed by registered or certified mail, on the third
business day after the date of such mailing.
(d) Expenses and Taxes. Each party shall pay its own fees and
expenses incurred in connection with the transactions contemplated hereby.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
(f) Entire Agreement; Amendment and Waiver. This Agreement
constitutes the entire understandings of the parties hereto and supersede all
prior agreements or understandings with respect to the subject matter hereof
among such parties. This Agreement may be amended, and the observance of any
term of this Agreement may be waived, with (and only with) the written consent
of the Company and ZGNA. No course of dealing between the Company and ZGNA nor
any delay in exercising any rights hereunder shall operate as a waiver of any
rights of either party hereto.
(g) Severability. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not effect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(h) Specific Performance. The parties hereto agree that this
Agreement may be enforced by either party through specific performance,
injunctive relief and other equitable relief. Both parties further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such equitable relief and that this provision is without
prejudice to any other rights that the parties hereto may have for any failure
to perform this Agreement.
(i) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
11
IN WITNESS WHEREOF, the parties hereto have executed this
Escrow Agreement on the date first written above.
XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
ZUELLIG GROUP N.A., INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
ZUELLIG BOTANICALS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President, Treasurer and Secretary
AMERICAN SECURITIES TRANSFER & TRUST, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Client Services Manager
By: /s/ Xxxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Corporate Trust Officer
* * * * * *
12
EXHIBIT 1
Paclitaxel Assets
Non-exclusive list of Paclitaxel Assets includes:
Bulk paclitaxel inventory (any volume amounts)
Fixed assets and other tangible assets primarily used in paclitaxel
production, testing and research
Technology, patents, license, and contract rights related primarily to
paclitaxel and paclitaxel technology
Taxanees, sidesteams, and other derivative products related primarily
to paclitaxel and paclitaxel technologies
Proceeds from royalties derived primarily from paclitaxel and
paclitaxel technology
Goodwill associated with the foregoing
13
EXHIBIT 2
Paclitaxel Expenses
Non-exclusive list of Paclitaxel Expenses includes:
Costs to complete production of sold bulk paclitaxel from which Xxxxxx
has received cash
Costs of analytical and stability process requirements
Legal costs
Salaries, travel etc. for purposes of exiting the paclitaxel business
Plant shutdown costs
Cash costs of terminating yew tree cultivar contracts
14
EXHIBIT 3
Accrued Termination Expenses
Non-exclusive list of Accrued Termination Expenses includes:
Estimated future cash costs to terminate yew tree cultivar contracts
Pending warranty claims on paclitaxel assets not covered by insurance
15
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign
and transfer to ____________________________, ________ shares of Common Stock,
par value $0.001 per share, of Xxxxxx, Inc., a Delaware corporation, represented
by Certificate No. _____________(the "Stock"), standing in the name of the
undersigned on the books of said corporation and does hereby irrevocably
constitute and appoint _______________________ as the undersigned's true and
lawful attorney, for it and in its name and stead, to sell, assign and transfer
all or any of the Stock, and for that purpose to make and execute all necessary
acts of assignment and transfer thereof; and to substitute one or more persons
with like full power, hereby ratifying and confirming all that said attorney or
substitute or substitutes shall lawfully do by virtue hereof.
Dated: __________________
ZUELLIG GROUP N.A., INC.
By:
Name:
Title:
Executed in presence of:
------------------------
Name:
16
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign
and transfer to ____________________________, ________ shares of Common Stock,
par value $0.001 per share, of Xxxxxx, Inc., a Delaware corporation, represented
by Certificate No. ____________(the "Stock"), standing in the name of the
undersigned on the books of said corporation and does hereby irrevocably
constitute and appoint _______________________ as the undersigned's true and
lawful attorney, for it and in its name and stead, to sell, assign and transfer
all or any of the Stock, and for that purpose to make and execute all necessary
acts of assignment and transfer thereof; and to substitute one or more persons
with like full power, hereby ratifying and confirming all that said attorney or
substitute or substitutes shall lawfully do by virtue hereof.
Dated: __________________
ZUELLIG Botanicals, INC.
By:
Name:
Title:
Executed in presence of:
------------------------
Name:
17
