ESCROW AGREEMENT
Exhibit 6
Execution Copy
THIS ESCROW AGREEMENT, dated
as of July 21, 2010 (this “Agreement”), is by
and among MDRNA, Inc., a Delaware corporation (“Purchaser”),
Ampersand 2006 Limited Partnership, solely in its capacity as representative of
the stockholders of Cequent Pharmaceuticals, Inc. pursuant to the Merger
Agreement (as defined below) (the “Stockholder
Representative”), and American Stock Transfer and Trust Company, LLC (the
“Escrow
Agent”). Each capitalized term used in this Agreement but not otherwise
defined herein shall have the meaning ascribed thereto in the Merger Agreement.
Purchaser shall provide the Escrow Agent with a true and complete copy of the
Merger Agreement for its records and reference.
WHEREAS, Purchaser, Calais
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Purchaser (“Merger
Sub”), and Cequent Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), are
parties to an Agreement and Plan of Merger, dated as of March 31, 2010 (as such
agreement may be subsequently amended or modified, the “Merger Agreement”),
providing for the merger of Merger Sub with and into the Company (the “Merger”);
WHEREAS, pursuant to the
Merger Agreement, immediately following the Effective Time, Purchaser shall
issue and deposit with the Escrow Agent a number of shares of Purchaser Common
Stock equal to 10% of the aggregate Merger Consideration (the “Escrowed Shares”),
which are to be held in escrow for the purpose of satisfying the indemnification
obligations of the Stockholders under Article VIII of the Merger Agreement;
and
WHEREAS, the parties desire to
set forth their understandings with regard to the escrow account established
hereunder.
NOW, THEREFORE, in
consideration of the promises and agreements of the parties contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Appointment of
Agent. Purchaser and the Stockholder Representative hereby
appoint the Escrow Agent as their agent to hold in escrow, and to administer the
disposition of, the Escrow Fund (as defined below) in accordance with the terms
of this Agreement, and the Escrow Agent hereby accepts such
appointment.
2. Stockholder
Representative. The Stockholder Representative has been
designated to act as the representative, agent and attorney-in-fact for the
Stockholders and their successors and assigns for all purposes under this
Agreement and the Merger Agreement. The Escrow Agent is hereby relieved from any
liability to any person for any acts done by the Escrow Agent in accordance with
any notice, direction, consent or instruction of or from the Stockholder
Representative under this Agreement or the Merger Agreement, except as set forth
in Section 9(b) hereof.
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3. Establishment of
Escrow. Immediately following the Effective Time, and in
accordance with the terms of the Merger Agreement, Purchaser shall issue and
deliver the Escrowed Shares to a special escrow account established by the
Escrow Agent on behalf of Purchaser and the Stockholder Representative for the
benefit of the Stockholders (the “Escrow Account”). The
Escrowed Shares shall be represented by one or more stock certificates
registered in the name of the Escrow Agent or its nominee. Upon receipt of
certificates representing such shares of Purchaser Common Stock, the Escrow
Agent shall acknowledge in writing receipt of such certificates to Purchaser and
the Stockholder Representative. Any securities of Purchaser issued or
distributed in respect of or in exchange for any of the Escrowed Shares, whether
by way of stock dividends, stock splits or otherwise, shall be issued in the
name of the Escrow Agent or its nominee, and shall be delivered to the Escrow
Agent, who shall hold such securities in the Escrow Account (such securities
being considered Escrowed Shares for the purposes hereof). The Escrow Agent
shall have no responsibility to monitor or compel issuance of any Escrowed
Shares in its name, but shall merely hold such shares as are delivered, as
provided herein. The Escrowed Shares held in the Escrow Account, together with
any further shares that may be deposited in the Escrow Account by Purchaser and
with any cash, securities or other property deposited in the Escrow Account in
accordance with Section 4(c) hereof, less any shares released from the
Escrow Account and/or cancelled, as the case may be, from time to time in
accordance with Section 6 hereof, shall be referred to herein as the “Escrow Fund.” The
Escrow Agent agrees to administer the disposition of the Escrow Fund in
accordance with the terms and conditions of this Agreement. The Escrow Fund
shall be segregated on the books and records of the Escrow Agent from the other
assets of the Escrow Agent and shall be held by the Escrow Agent in trust for
the benefit of Purchaser and the Stockholders in accordance with the terms and
conditions of this Agreement. The Escrow Fund shall not be subject to any lien,
attachment, trustee process or any other judicial process of any creditor of any
party hereto, and shall be held and disbursed solely for the purposes of, and in
accordance with the terms and conditions of, this Agreement.
4. Voting
and Rights of Ownership.
(a) The
Escrowed Shares held pursuant to this Agreement will be shown as issued and
outstanding on the books and records of Purchaser.
(b) The
Escrow Agent agrees to vote the Escrowed Shares on any matter for which the
Escrowed Shares are eligible to vote such that the Escrowed Shares are voted in
a manner consistent with and in the same proportion to the voting of all other
shares of Purchaser Common Stock that were eligible to vote and for which votes
were cast in respect of such matter. The Escrow Agent shall have no obligation
to solicit consents or proxies from any Stockholder for purposes of any such
vote.
(c) Any
cash dividends or other cash distribution in respect of the Escrowed Shares
shall promptly be distributed to the Stockholders by check payable to the
Stockholders in proportion to the number of Escrowed Shares that would otherwise
be released to the Stockholders. Any non-cash dividend or other non-cash
distribution on the Escrowed Shares shall be issued in the name of the Escrow
Agent or its nominee and deposited with the Escrow Agent to be held in escrow
along with the corresponding Escrowed Shares. Any such non-cash dividend or
other non-cash distribution shall be released from escrow in conjunction with
the release from escrow of the corresponding Escrowed Shares, and, if
applicable, Purchaser and the Stockholder Representative shall direct the Escrow
Agent to do the same in the applicable Release Notice (as defined below). If all
or a portion of the Escrowed Shares are cancelled, any corresponding non-cash
dividends or other non-cash distributions on such Escrowed Shares not previously
distributed to the Stockholders shall be returned to Purchaser. If the Escrowed
Shares are reclassified, converted or changed into, or exchanged for securities
or other property (other than cash) pursuant to a merger, consolidation or other
reorganization of Purchaser after the Effective Time, then such reclassified
shares or securities or other property (other than cash), as the case may be,
shall be deposited with the Escrow Agent to be held in escrow and released from
escrow and/or cancelled, as the case may be, in conjunction with the terms of
this Agreement at the same time and in the same respective amounts as the
related Escrowed Shares, assuming for this purpose that such reclassification,
merger, consolidation or other reorganization had not been
effected.
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5. Tax
Matters.
(a) The
parties agree solely for U.S. Tax purposes and, to the extent permitted by
applicable Law, state and local Tax purposes, (i) the Escrowed Shares shall
be treated as owned by the Stockholders (in the same proportion that the Merger
Consideration payable at the Closing was issued to the Stockholders),
(ii) any dividend or other distribution on the Escrowed Shares, whether in
the form of securities or cash, and any interest and earnings from the
investment and reinvestment of any distribution on the Escrowed Shares
(collectively, “Escrow
Earnings”) shall, as of the end of each calendar year and to the extent
required by the Internal Revenue Code, be reported as having been earned by the
respective Stockholders, and (iii) the Escrow Agent does not have any
interest in the Escrowed Shares or Escrow Earnings. In accordance with its
respective share of the Escrow Earnings, each Stockholder shall report on its
Tax Returns and be liable for the payment of, and shall pay when due, its
respective share of any Taxes on the Escrow Earnings. For Tax reporting
purposes, all Escrow Earnings in any Tax year shall be reported as allocated to
the Stockholders in accordance with their respective ownership of Escrowed
Shares until the release of the Escrowed Shares to the Stockholders or the
cancellation of the Escrowed Shares. The Escrow Agent shall report all Escrow
Earnings on Form 1099 or other appropriate forms with respect to each calendar
year during the term of this Agreement in a manner consistent with the
provisions of this Section 5(a). Unless clearly required by applicable Law,
no party to this Agreement shall take any position that is inconsistent with the
provisions of this Section 5(a) for any Tax purposes.
(b) Upon
request, each Stockholder shall complete, sign and send to the Escrow Agent, a
Form W-9, or Form W-8, as applicable, and any other forms and documents that the
Escrow Agent may reasonably request for Tax reporting purposes. Moreover, each
Stockholder acknowledges and agrees that, in the event the Escrow Agent is
required to withhold any Taxes, the Escrow Agent shall, upon mutual direction
from Purchaser and the Stockholder Representative, remove such portion of any
distribution to such Stockholder as is required to be remitted to the Internal
Revenue Service in compliance with the Code or to any other applicable Taxing
Authority.
6. Release/Cancellation
of the Escrowed Shares.
(a) Release/Cancellation.
(i) On
or prior to January 1, 2011 (or the next business day thereafter) (such date
being referred to herein as the “Release Date”),
Purchaser and the Stockholder Representative shall provide to the Escrow Agent
written instructions (such written instructions, a “Release Notice”) to
release to the Stockholders, on the Release Date, in the amounts set forth on
Schedule A to
this Agreement, all of the Escrowed Shares, minus such number of Escrowed Shares
having a value (based on the Signing Date Stock Price) equal to the amount of
any Claim or Claims existing as of such date and of which the Escrow Agent has
received written notice from the Purchaser setting forth the amount of such
Claim. Any shares held by the Escrow Agent beyond the Release Date
shall continue to be held by the Escrow Agent in accordance with the terms of
this Agreement, until such time as the Escrow Agent receives a Release Notice
from Purchaser and the Stockholders Representative instructing the Escrow Agent
to release any such retained Escrowed Shares to Purchaser for cancellation or to
the Stockholders in the amounts set forth on Schedule A to this
Agreement, as the case may be. Upon satisfaction of any
conditions in the Merger Agreement for release of any Escrowed Shares so held
beyond the Release Date, Purchaser and the Stockholder Representative shall
execute and deliver to the Escrow Agent a Release Notice in accordance with the
terms of the Merger Agreement, whereupon the Escrow Agent shall release such
Escrowed Shares as directed in accordance with such Release Notice.
(ii) The
Escrow Agent shall deliver to Purchaser’s transfer agent, within five
(5) business days of the Release Date or the receipt of any Release Notice,
as applicable, a share certificate evidencing all of the Escrowed Shares being
released from escrow at that time, as well as any dividends, distributions or
other property in the Escrow Fund relating thereto. If, on a date that Escrowed
Shares are to be released, the Escrow Agent holds a stock certificate or other
evidence representing more Escrowed Shares than are to be released, the Escrow
Agent shall promptly deliver the stock certificate or other evidence to
Purchaser’s transfer agent and request replacement stock certificates or other
evidence in denominations necessary to evidence such Escrowed Shares as are not
then being released from the Escrow Fund. The Escrow Agent shall hold any
certificate(s) representing Escrowed Shares that are not being released from the
Escrow Fund in accordance with the terms of this Agreement.
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(iii) If
any of the Escrowed Shares (including any dividends, distributions or other
property in the Escrow Fund relating thereto) are released to Purchaser for
cancellation pursuant to this Section 6(a) (such Escrowed Shares being the
“Cancelled Escrowed
Shares”), such Cancelled Escrowed Shares shall be deemed to have been
cancelled, and all rights of any Stockholder associated with the ownership of
such shares, including but not limited to the right to receive distributions,
shall terminate as of the date of such Release Notice, regardless of when
Purchaser receives the certificates representing such Cancelled Escrowed Shares.
As of any such date, any Cancelled Escrowed Shares will cease to be shown as
issued and outstanding on the books and records of Purchaser.
(b) The
number of Escrowed Shares to be released from escrow or cancelled, as the case
may be, in accordance with this Agreement shall be adjusted from time to time to
account for any stock dividends, stock splits, combinations or other similar
recapitalizations affecting Purchaser Common Stock subsequent to the Effective
Time (each such change, a “Capital Change”). In
the event that a Capital Change occurs subsequent to the Effective Time and
prior to the termination of this Agreement pursuant to Section 8, Purchaser
shall ensure that the number of Escrowed Shares to be released from escrow or
cancelled, as the case may be, in accordance with this Agreement takes into
account the change in number of Escrowed Shares that occurred as a result of
such Capital Change and is adjusted, where necessary, such that the number of
Escrowed Shares released from escrow or cancelled, as the case may be, in
accordance with this Agreement is equal to that number of Escrowed Shares that
would be eligible for release or cancellation, as the case may be, had such
Capital Change been given effect immediately prior to the Effective
Time.
7. Transfer
of Escrowed Shares.
(a) During
the term of this Agreement, the interests of the Stockholders in the Escrowed
Shares shall not be assignable or transferable, except by operation of law or
the laws of descent and distribution (and in either case the assignee or
transferee shall be subject to the terms and conditions of this Agreement).
During the term of this Agreement, the interest of Purchaser in the Escrowed
Shares shall not be assignable or transferable, except by operation of law (and
assignee or transferee shall be subject to the terms and conditions of this
Agreement).
(b) Each
certificate representing Escrowed Shares held in escrow shall have the following
legend noted conspicuously thereon:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF THAT
CERTAIN ESCROW AGREEMENT DATED JULY 21, 2010 BY AND AMONG MDRNA, INC., AMERICAN
STOCK TRANSFER AND TRUST COMPANY, LLC, AS ESCROW AGENT, AND AMPERSAND 2006
LIMITED PARTNERSHIP, AS STOCKHOLDER REPRESENTATIVE. THIS CERTIFICATE IS SUBJECT
TO RESTRICTIONS ON TRANSFER UNTIL RELEASED FROM SUCH RESTRICTIONS IN ACCORDANCE
WITH THE TERMS OF SUCH ESCROW AGREEMENT.
(c) Notwithstanding
the foregoing, certificates representing the Escrowed Shares shall not bear the
legend set forth in Section 7(b) after being transferred out of the Escrow
Account, if such transfer is made in accordance with Section 6 of this
Agreement.
(d) The
Escrow Agent is hereby granted the power to effect any transfer of the interest
of such Stockholder in any Escrowed Shares permitted by this Agreement.
Purchaser will cooperate (and cause its transfer agent to cooperate) with the
Escrow Agent in promptly issuing stock certificates to effect such transfers
(including the cancellation and reissuance of the stock certificates
representing cancelled and other Escrowed Shares).
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8. Termination. This Agreement
shall terminate upon the earliest to occur of the following events:
(a) all
Escrowed Shares have been either released or cancelled in accordance with
Section 6; or
(b) Purchaser
and the Stockholder Representative agree in writing to terminate this Agreement,
in which case the Escrow Agent shall distribute the Escrowed Shares in
accordance with the joint written instructions of Purchaser and the Stockholder
Representative.
9. Responsibilities
and Liability of Escrow Agent.
(a) Duties Limited. The
Escrow Agent undertakes to perform only such duties as are expressly set forth
herein. The Escrow Agent may perform its duties through its agents and
affiliates. The Escrow Agent’s duties shall be determined only with reference to
this Agreement and applicable laws and it shall have no implied duties. The
Escrow Agent shall not be bound by, deemed to have knowledge of, or have any
obligation to make inquiry into or consider, any term or provision of any
agreement between Purchaser, the Stockholder Representative, and/or any other
third party which may be referred to herein or as to which the escrow
relationship created by this Agreement relates.
(b) Liability of Escrow
Agent. Except in cases of the Escrow Agent’s bad faith, willful
misconduct or gross negligence, the Escrow Agent shall be fully protected
(i) in acting in reliance upon any certificate, statement, request, notice,
advice, instruction, direction, other agreement or instrument or signature
reasonably and in good faith believed by the Escrow Agent to be genuine,
(ii) in assuming that any person purporting to give the Escrow Agent any of
the foregoing in accordance with the provisions hereof, or in connection with
either this Agreement or the Escrow Agent’s duties hereunder, has been duly
authorized to do so, and (iii) in acting or refraining from acting in good
faith when advised to act or refrain to act, as the case may be, by any counsel
retained by the Escrow Agent. The Escrow Agent shall not be liable for any
mistake of fact or law or any error of judgment, or for any act or omission,
except as a result of its bad faith, willful misconduct or gross negligence. The
Escrow Agent shall not be responsible for any loss incurred upon any investment
made under circumstances not constituting bad faith, willful misconduct or gross
negligence.
Without
limiting the generality of the foregoing, it is hereby agreed that in no event
will the Escrow Agent and its agents and affiliates be liable for any lost
profits or other indirect, special, incidental or consequential damages which
the parties may incur or experience by reason of having entered into or relied
on this Agreement or arising out of or in connection with the Escrow Agent’s
performance of services hereunder, even if the Escrow Agent was advised or
otherwise made aware of the possibility of such damages; nor shall the Escrow
Agent be liable for acts of God, acts of war, breakdowns or malfunctions of
machines or computers, interruptions or malfunctions of communications or power
supplies, labor difficulties, actions of public authorities, or any other
similar cause or catastrophe beyond the Escrow Agent’s reasonable
control.
In the
event that the Escrow Agent shall be uncertain as to its duties or rights
hereunder, or shall receive any certificate, statement, request, notice, advice,
instruction, direction or other agreement or instrument from any other party
with respect to the Escrow Fund which, in the Escrow Agent’s reasonable and good
faith opinion, is in conflict with any of the provisions of this Agreement, or
shall be advised that a dispute has arisen with respect to the Escrow Fund or
any part thereof, the Escrow Agent shall be entitled, without liability to any
person, to refrain from taking any action other than to keep safely the Escrow
Fund until the Escrow Agent shall be directed otherwise in accordance with this
Agreement. The Escrow Agent shall be under no duty to institute or defend any
legal proceedings, although the Escrow Agent may, in its discretion and at the
expense of Purchaser as provided in Sections 9(c) or 9(d) hereof, institute or
defend such proceedings.
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(c) Indemnification of Escrow
Agent. Purchaser agrees to indemnify the Escrow Agent and its officers,
directors, employees, agents, affiliates, successors and assigns for, and to
hold it harmless against, any and all claims, suits, actions, proceedings,
investigations, judgments, deficiencies, damages, settlements, liabilities and
expenses (including reasonable legal fees and expenses of attorneys chosen by
the Escrow Agent) as and when incurred, arising out of or based upon any act,
omission, alleged act or alleged omission by the Escrow Agent or its officers,
directors, employees, agents, affiliates, successors and assigns or any other
cause, in any case in connection with the acceptance of, or performance or
non-performance by the Escrow Agent of, any of the Escrow Agent’s duties under
this Agreement, except as a result of the Escrow Agent’s bad faith, willful
misconduct or gross negligence.
(d) Authority to
Interplead. The parties hereto authorize the Escrow Agent, if the Escrow
Agent is threatened with litigation or is sued, to interplead all interested
parties in any court of competent jurisdiction and to deposit the Escrow Fund
with the clerk of that court. In the event of any dispute hereunder, the Escrow
Agent shall be entitled to petition a court of competent jurisdiction and shall
perform any acts ordered by such court.
(e) No Representations.
The Escrow Agent makes no representations as to the validity, value,
genuineness, or the collectibility of any security or other document or
instrument held by or delivered to the Escrow Agent by or on behalf of the
parties hereto.
10. Removal
and Resignation of Escrow Agent.
(a) Removal. Purchaser
and the Stockholder Representative acting together shall have the right to
terminate the appointment of the Escrow Agent at any time by giving no less than
thirty (30) calendar days’ prior written notice of such termination to the
Escrow Agent, specifying the date upon which such termination shall take effect.
Thereafter, the Escrow Agent shall have no further obligation hereunder except
to hold the Escrow Fund as depositary. Purchaser and the Stockholder
Representative agree that they will jointly appoint a banking corporation, trust
company or other financial institution as successor Escrow Agent. The Escrow
Agent shall refrain from taking any action until it shall receive joint written
instructions from Purchaser and the Stockholder Representative designating the
successor Escrow Agent. The Escrow Agent shall deliver all of the Escrow Fund to
such successor Escrow Agent in accordance with such instructions and upon
receipt of the Escrow Fund, the successor Escrow Agent shall be bound by all of
the provisions hereof.
(b) Resignation. The
Escrow Agent may resign and be discharged from its duties and obligations
hereunder at any time by giving no less than thirty (30) calendar days’
prior written notice of such resignation to Purchaser and the Stockholder
Representative, specifying the date when such resignation will take effect.
Thereafter, the Escrow Agent shall have no further obligation hereunder except
to hold the Escrow Fund as depository. In the event of such resignation,
Purchaser and the Stockholder Representative agree that they will jointly
appoint a banking corporation, trust company, or other financial institution as
successor Escrow Agent within thirty (30) calendar days of notice of such
resignation. The Escrow Agent shall refrain from taking any action until it
shall receive joint written instructions from Purchaser and the Stockholder
Representative designating the successor Escrow Agent. The Escrow Agent shall
deliver all of the Escrow Fund to such successor Escrow Agent in accordance with
such instructions and upon receipt of the Escrow Fund, the successor Escrow
Agent shall be bound by all of the provisions hereof.
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11. General.
(a) Accounting. Upon each
release or cancellation of any of the Escrowed Shares in the Escrow Fund or the
termination of this Agreement, the Escrow Agent shall render to Purchaser and
the Stockholder Representative an accounting in writing of the Escrow Fund and
all distributions therefrom.
(b) Survival.
Notwithstanding anything herein to the contrary, the provisions of Sections 9(b)
and 9(c) hereof shall survive any resignation or removal of the Escrow Agent,
and any termination of this Agreement.
(c) Escrow Agent Fees.
The Escrow Agent shall charge a one-time administrative fee of $2,000, and
Purchaser shall be solely liable for the payment of such fee.
(d) Notices. All notices
under this Agreement shall be transmitted to the respective parties, shall be in
writing and shall be considered to have been duly given or served when
personally delivered to any individual party, or on the first
(1st) Business Day after the date of deposit with an overnight courier for
next day delivery, postage paid, or on the third (3rd) Business Day after
deposit in the United States Mail, certified or registered, return receipt
requested, postage prepaid, or on the date of telecopy, fax or similar
telephonic transmission during normal business hours of the recipient, as
evidenced by mechanical confirmation of such telecopy, fax or telephonic
transmission; addressed in all cases to the party at his, her or its address set
forth below, or to such other address as such party may hereafter
designate:
If to
Purchaser:
MDRNA,
Inc.
0000
Xxxxx Xxxxx Xxxxxxx
Xxxxxxx,
XX 00000
Facsimile:
E-Mail:
Attention:
Copies
to:
Xxxxx
Xxxxxxx LLP
0 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Facsimile:
E-Mail:
Attention:
If to the
Stockholder Representative:
Ampersand
2006 Limited Partnership
c/o
Ampersand Ventures
00
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxx
Telecopy:
E-Mail:
7
With a
copy to:
Xxxxxxx
Xxxxx Xxxxxx & Dodge LLP
000
Xxxxxxxxxx Xxxxxx
Xxxxxx,
XX 00000-0000
Attention: Xxxxx
X. Xxxxxxx, Esq.
Xxxxxxx
X. Xxxxxxxx, Esq.
Telecopy:
If to the
Escrow Agent:
American
Stock Transfer and Trust Company, LLC
000 Xxxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx,
XX 00000
Facsimile:
E-Mail:
Attention:
With a
copy to:
American
Stock Transfer and Trust Company, LLC
0000
00xx
Xxxxxx
Xxxxxxxx,
XX 00000
Facsimile:
Attention:
General Counsel
Any
notice given hereunder may be given on behalf of any party by its counsel or
other authorized representative. In all cases the Escrow Agent shall be entitled
to rely on a copy or a fax transmission of any document with the same legal
effect as it were the original of such document.
(e) Modifications;
Waiver. This Agreement may not be amended, altered or modified without
the express prior written consent of each of the parties hereto. No course of
conduct shall constitute a waiver of any terms or conditions of this Agreement,
unless such waiver is specified in writing, and then only to the extent so
specified. A waiver of any of the terms and conditions of this Agreement on one
occasion shall not constitute a waiver of the other terms of this Agreement, or
of such terms and conditions on any other occasion.
(f) Further Assurances.
If at any time the Escrow Agent shall consider or be advised that any further
agreements, assurances or other documents are reasonably necessary or desirable
to carry out the provisions hereof and the transactions contemplated hereby, the
parties hereto shall execute and deliver any and all such agreements or other
documents, and do all things reasonably necessary or appropriate to carry out
fully the provisions hereof.
(g) Assignment. This
Agreement shall inure to the benefit of and be binding upon the successors,
heirs, personal representatives, and permitted assigns of the parties hereto.
This Agreement may not be assigned by the Escrow Agent, except that upon prior
written notice to Purchaser and the Stockholder Representative, the Escrow Agent
may assign this Agreement to an affiliated or successor trust company or other
qualified bank entity.
(h) Section Headings. The
section headings contained in this Agreement are inserted for purposes of
convenience of reference only and shall not affect the meaning or interpretation
hereof.
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(i) Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to its rules of conflict of laws. Each of
Purchaser, Stockholder Representative and Escrow Agent hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of Delaware and of the United States of America located in the
State of Delaware (the “Delaware Courts”) for
any litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any litigation relating thereto
except in such courts), waives any objection to the laying of venue of any such
litigation in the Delaware Courts, and agrees not to plead or claim in any
Delaware Court that such litigation brought therein has been brought in any
inconvenient forum. Each of the parties hereto agrees, (a) to the extent
such party is not otherwise subject to service of process in the State of
Delaware, to appoint and maintain an agent in the State of Delaware as such
party’s agent for acceptance of legal process, and (b) that service of
process may also be made on such party by prepaid certified mail with a proof of
mailing receipt validated by United States Postal Service constituting evidence
of valid service. Service made pursuant to (a) or (b) above shall have
the same legal force and effect as if served upon such party personally with the
State of Delaware.
(j) Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.
[the
next page is the signature page]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
| MDRNA, Inc. | |||
|
|
By:
|
/s/ J. Xxxxxxx Xxxxxx | |
| Name: | J. Xxxxxxx Xxxxxx | ||
| Title: | President and CEO | ||
| AMPERSAND 2006 LIMITED PARTNERSHIP | |||
| By: | AMP-06 Management Company Limited Partnership, its General Partner | ||
| By: | AMP-06 MC LLC, its General Partner | ||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | ||
| Title: | Managing Member | ||
| AMERICAN STOCK TRANSFER AND TRUST COMPANY, LLC, as Escrow Agent | |||
|
|
By:
|
/s/ Xxxx X. Xxxx | |
| Name: | Xxxx X. Xxxx | ||
| Title: | Vice President | ||
[SIGNATURE
PAGE TO ESCROW AGREEMENT]
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