ESCROW AGREEMENT
EXHIBIT
4.5
This
Escrow Agreement
is
entered into as of June 30, 2005, by and among Century
Park Pictures Corp.,
a
Minnesota corporation (“Parent”);
IsoRay Medical, Inc.,
a
Delaware corporation (referred to herein interchangeably as the “Company”
and the
“Escrow
Agent”);
and
Xxxxxx
Xxxxxxx,
an
individual (the “Stockholder”).
Recitals
A. Parent,
Century Park Transitory Subsidiary, Inc., a Delaware corporation and wholly
owned subsidiary of Parent (the “Merger
Sub”),
the Company, the Stockholder and
Xxxxxxx
Xxxxxxxxx
have entered into an Agreement and Plan of Merger dated as of May 27, 2005
(the
“Merger
Agreement”)
pursuant to which the Company will be merged with and into Merger Sub whereby
the Company will cease to exist, and Merger Sub will be the surviving
corporation (the “Merger”).
B. The
Merger Agreement provides that an escrow account will be established as
collateral for certain possible indemnification obligations to the Company
and
its officers, directors and affiliates (the “Indemnitiees”)
by the Stockholder that may arise under the Merger Agreement.
C. This
Agreement will become effective automatically upon the closing of the
Merger.
D. The
parties hereto desire to establish the terms and conditions pursuant to which
such escrow account will be established and maintained.
Agreement
Now,
Therefore,
the
parties hereby agree as follows:
1. Defined
Terms. Capitalized
terms used in this Agreement and not otherwise defined shall have the meanings
given them in the Merger Agreement.
2. Escrow
Account.
(a) Escrow
of Parent Shares.
On the
Effective Date, Stockholder shall deliver to the Escrow Agent 50,000 shares
(post 30:1 reverse stock split) of Parent common stock (the “Escrow
Shares”).
The
Escrow Shares will be represented by a certificate or certificates issued in
the
name of the Escrow Agent or its nominee. The Escrow Shares 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 any party hereto. The Escrow
Agent
agrees to accept delivery of the Escrow Shares and to hold the Escrow Shares
(as
well as any dividends or other amounts paid on such account pursuant to Section
2(b)) in an escrow account (the “Escrow
Account”)
subject
to the terms and conditions of this Agreement. Upon delivery, the Escrow Agent
will issue a written receipt for the Escrow Shares to the
Stockholder.
1
(b) Dividends,
Etc. Any
securities distributable in respect of or in exchange for any of the Escrow
Shares, whether by way of stock dividend, stock splits or otherwise, shall
be
delivered to the Escrow Agent, who shall hold such securities in the Escrow
Account. Such securities shall be issued in the name of the Escrow Agent or
its
nominee and shall be considered Escrow Shares for all purposes hereof. Any
cash
dividend or property (other than securities) distributable to the Stockholder
in
respect of the Escrow Shares shall be delivered to the Stockholder, and shall
not become part of the Escrow Account.
(c) Voting
of Shares. On
any
matter brought before the Stockholders of Parent for a vote, the Escrow Agent
shall deliver to the Stockholder a notice of such vote promptly upon receiving
a
proxy or other materials regarding such vote and the Stockholder shall deliver
notice to the Escrow Agent (the “Voting
Notice”)
setting
forth the manner in which the Escrow Agent shall vote the Escrow Shares. The
Stockholder shall deliver such Voting Notice to the Escrow Agent at least five
business days prior to the date of the taking of any vote of the stockholders
of
Parent (the “Voting
Notice Date”).
The
Escrow Agent shall have no obligation to vote any of the Escrow Shares if no
Voting Notice is received prior to the Voting Notice Date or if such notice
does
not clearly set forth the manner in which the Escrow Agent shall vote the Escrow
Shares.
(d) Transferability.
The
interest of the Stockholder in the Escrow Account shall not be assignable or
transferable by the Stockholder. The interest of Parent in the Escrow Account
shall be assignable or transferable by Parent in connection with a merger,
sale
of substantially all of its assets or other business combination involving
Parent.
(e) Escrow
Agent’s Power to Transfer.
The
Escrow Agent is hereby granted the power to effect any transfer of all or a
part
of the Escrow Account permitted under the terms of this Agreement.
3. Administration
of Escrow Account.
The
Escrow Agent shall administer the Escrow Account as follows:
(a) Delivery
of Claim Notice.
If any
Indemnitee has incurred or suffered any Damages for which it is or may be
entitled to indemnification under the Merger Agreement, the Parent shall, on
behalf of such Indemnitee and on or prior to the Termination Date (as defined
below), give written notice of such claim (a “Claim
Notice”)
to the
Stockholder and the Escrow Agent. Each Claim Notice shall state the basis for
such claim and the amount of Damages incurred or suffered by such Indemnitee
(the “Claimed Amount”)
and
delivery instructions for the Claimed Amount. No Indemnitee shall make any
claim
for Damages after 11:59 p.m. (Washington Time) on the date that is three years
after the Closing Date (such date being referred to herein as the “Termination
Date”).
(b) Response
Notice. Within
15
business days of the date a Claim Notice was sent to the Stockholder and the
Escrow Agent (the “Response
Date”),
the
Stockholder shall provide to Parent and to the Escrow Agent a written response
(the “Response
Notice”)
in
which the Stockholder shall: (i) agree that the full Claimed Amount may be
released from the Escrow Account to the Indemnitee, (ii) agree that part, but
not all of the Claimed Amount (the “Agreed
Amount”)
may be
released from the Escrow Account to the Indemnitee or (iii) contest that any
of
the Claimed Amount may be released from the Escrow Account to the Indemnitee.
The Stockholder may contest the release of all or a portion of a Claimed Amount
only based upon a good faith belief that all or such portion of the Claimed
Amount does not constitute Damages for which the Indemnitee is entitled to
indemnification under the Merger Agreement. If no Response Notice is delivered
by the Stockholder to the Escrow Agent by the Response Date, the Stockholder
shall be deemed to have agreed that the entire Claimed Amount may be released
to
the Indemnitee from the Escrow Account.
2
(c) Uncontested
Claim.
If the
Stockholder in the Response Notice agrees or is deemed to have agreed that
the
Claimed Amount may be released from the Escrow Account to the Indemnitee, the
Escrow Agent shall, no later than five business days after receipt of the
Response Notice, transfer, deliver, and assign to such Indemnitee the Claimed
Amount (or such lesser amount as is then held in the Escrow
Account).
(d) Partially
Contested Claims.
If the
Stockholder in the Response Notice agrees that part, but not all, of the Claimed
Amount may be released from the Escrow Account to such Indemnitee, the Escrow
Agent shall, no later than five business days after receipt of the Response
Notice, transfer, deliver, and assign to such Indemnitee the Agreed Amount
(or
such lesser amount as is then held in the Escrow Account).
(e) Contested
Claims.
If the
Stockholder in the Response Notice contests the release of all or part of the
Claimed Amount (the “Contested
Amount”),
the
matter shall be settled by binding arbitration held in Phoenix, Arizona. All
claims shall be settled by three arbitrators in accordance with the Commercial
Arbitration Rules then in effect of the American Arbitration Association (the
“Rules”).
The
Stockholder and Parent shall each designate one arbitrator within 10 business
days of the delivery of the Response Notice contesting the Claimed Amount.
Such
designated arbitrators shall mutually agree upon and shall designate a third
arbitrator within 10 business days of the last to be appointed of such
arbitrators; provided
however,
that (i)
in the event the two designated arbitrators fail to reach agreement with respect
to the designation of the third arbitrator within such 10 business day period,
the third arbitrator shall be appointed in accordance with the Rules and (ii)
if
either the Stockholder or Parent fail to timely designate an arbitrator, the
dispute shall be resolved by the one arbitrator timely designated. There shall
be limited discovery prior to the arbitration hearing, subject to the discretion
of the arbitrators, as follows: (a) exchange of witness lists and copies of
documentary evidence and documents related to or arising out of the issues
to be
arbitrated, (b) depositions of all party witnesses, and (c) such other
depositions as may be allowed by the arbitrators upon a showing of good cause.
Depositions shall be conducted in accordance with the Federal Rules of Civil
Procedure. Each party shall pay its own costs and expenses (including counsel
fees) of any such arbitration. The Stockholder and Parent shall pay the fees
and
expenses of their respectively designated arbitrators and shall bear equally
the
fees and expenses of the third arbitrator. The arbitrators shall decide the
matter to be arbitrated pursuant hereto within 45 business days after the
appointment of the last arbitrator. The arbitrators’ decision shall relate
solely to whether Parent is entitled to receive the Contested Amount (or a
portion thereof) pursuant to the applicable terms of the Merger Agreement and
this Agreement. The final decision of the majority of the arbitrators shall
be
furnished to the Stockholder, Parent and the Escrow Agent in writing and shall
constitute a conclusive determination of the issue in question, binding upon
the
Stockholder, the Company, Parent and the Escrow Agent and shall not be contested
by any of them. Such decision may be used in a court of law only for the purpose
of seeking enforcement of the arbitrators’ award. After delivery of a Response
Notice that the Claimed Amount is contested by the Stockholder, the Escrow
Agent
shall retain in the Escrow Account that portion of the Escrow Account having
a
value equal to one hundred percent (100%) of the Contested Amount by such number
of Escrow Shares (with the Fair Market Value of any Escrow Shares calculated
according to Section 6) (up to the amount then available in the Escrow Account),
notwithstanding the occurrence of the Termination Date, until (i) delivery
of a
copy of a settlement agreement executed by Parent and the Stockholder setting
forth instructions to the Escrow Agent as to release of any amounts from the
Escrow Account, if any, that shall be made with respect to the Contested Amount,
or (ii) delivery of a copy of the final award of the majority of the arbitrators
setting forth instructions to the Escrow Agent as to the release of any amounts
from the Escrow Account, if any, that shall be made with respect to the
Contested Amount. The Escrow Agent shall thereupon release the amount, if any,
from the Escrow Account (or such lesser amount as is then held in the Escrow
Account) in accordance with such agreement or instructions. Each of the
Stockholder and Parent shall use commercially reasonable efforts to fully and
finally resolve all disputes governed by the procedures set forth in this
Section 3(e) as expeditiously as possible.
3
4. Satisfaction
of Claims. Claims
will be satisfied, by delivery of such number of Escrow Shares having a Fair
Market Value equal to the amount to be released from escrow. The Escrow Agent
shall have no responsibility to perform any calculations anticipated by this
Section 4, but will in all circumstances be directed in writing executed by
both
parties as to the number of Escrow Shares that are to be disbursed.
5. Release
of Escrow Shares
(a) Within
5
business days after the Termination Date, Parent shall deposit with the Escrow
Agent a certificate in the name of the Stockholder representing the number
of
(pursuant to Section 5(c)) shares of Parent Common Stock to which such
stockholder is then entitled and the Escrow Agent shall, pursuant to written
instructions provided to it by Parent and the Stockholder, distribute to the
Stockholder, such certificates representing the Escrow Shares, if any, then
held
in escrow. Notwithstanding the foregoing, if any Indemnitee shall have asserted
a claim for indemnification prior to the Termination Date and such claim has
not
yet been resolved, the Escrow Agent shall retain in the Escrow Account after
the
Termination Date that portion of the Escrow Account having a value equal to
one
hundred percent (100%) of the Claimed Amount or Contested Amount, as the case
may be, by such number of Escrow Shares (with the Fair Market Value of any
Escrow Shares calculated according to Section 6), which has not then been
resolved, upon the terms set forth in Section 2.
(b) Any
distribution of all or a portion of the Escrow Shares, if any, to the
Stockholder, shall be made by mailing a stock certificate in the name of the
Stockholder to the address of the Stockholder provided in Section 10 (or
such
other address as may be provided in writing to the Escrow Agent and Parent
by
the Stockholder).
(c) No
fractional Escrow Shares shall be distributed to the Stockholder pursuant to
this Agreement. In lieu of any fractional shares to which such Stockholder
would
otherwise be entitled, such Stockholder shall be paid in cash an amount equal
to
the dollar amount (rounded to the nearest whole cent) determined by multiplying
the Fair Market Value by the fraction of a share of Parent Common Stock that
would otherwise be deliverable to such Stockholder hereunder. As soon as
practicable after the Termination Date, Parent shall deposit cash in the Escrow
Account in a sufficient amount to pay for any such fractional shares in
accordance with this Section 5(c).
4
6. Fair
Market Value. For
purposes of determining (i) the number of Escrow Shares to be either delivered
to satisfy a claim pursuant to Section 4, or retained in the escrow account
pursuant to Section (3)(e) or Section (5)(a), or (ii) the dollar amount paid
to
the Stockholder in lieu of fractional shares of Parent Common Stock pursuant
to
Section 5(c), “Fair
Market Value”
shall
be determined as follows:
(i) if
the
Common Stock is listed on a national securities exchange, the closing price
of
such Common Stock on the principal national securities exchange on which such
Common Stock is traded on the date for which any determination of Fair Market
Value is made for any purpose hereunder ("Determination
Date"),
or,
if there shall have been no sales on any such exchange on the Determination
Date, the average of the highest bid and lowest asked prices on such principal
exchange on such Determination Date; or
(ii) if
the
Common Stock is not listed on a national securities exchange, the closing price
on the NASD's National Market System, or, if there shall have been no sales
on
the Determination Date on the National Market System, the average of highest
bid
and lowest asked prices on the Determination Date on the National Market System,
as applicable; or
(iii) if
the
Common Stock is not listed on a securities exchange or the National Market
System, the average of the representative bid and asked prices of the Stock
as
of the close of trading on the Determination Date as quoted in the NASDAQ
System; or
(iv) if
the
Common Stock is not quoted in the NASDAQ System, the average of the high and
low
bid and asked prices on the Determination Date in the over-the-counter market
as
reported by the NASD Bulletin Board, the National Quotation Bureau,
Incorporated, or any similar successor organization; or
(v) if
the
Common Stock is not listed on or traded in any recognized securities market,
such value as the Parent and the Stockholder may agree upon; or
(vi) if
the
Parent and the Stockholder cannot agree on a value for the Common Stock within
thirty (30) days after the Parent or the Stockholder has made a written proposal
with respect to such value to the other party, the fair market value of the
Stock as of the Determination Date as determined by an Independent Appraisal
(as
defined below). The fees and expenses incurred by the Independent Financial
Expert (as defined below) in rendering its Independent Appraisal shall be paid
by the Parent. The determination of the Market Value of the Common Stock shall
be based solely upon the value of the Parent and shall be computed by dividing
the amount that represents the value of the Parent by the number of outstanding
shares of Common Stock. In making such a valuation, items such as discounts
for
minority interests, lack of marketability of the Common Stock or blockage shall
not be considered. "Independent
Appraisal"
shall
mean an evaluation of the price that would be paid if the Company were sold
at
that time on an orderly basis as a going concern, which evaluation shall be
made
by an Independent Financial Expert. "Independent
Financial Expert"
shall
mean an independent financial expert selected by the Company's Board of
Directors on not less than ten (10) days prior written notice to the Holder
but
shall not include any independent financial expert to whom the Holder shall
object in writing not later than ten (10) days after the Board's delivery of
notice of selection.
5
7. Duties
of Escrow Agent.
(a) The
Escrow Agent shall be entitled to rely upon any order, judgment, certificate,
demand, notice, instrument or other writing delivered to it hereunder without
being required to investigate the validity, accuracy or content thereof nor
shall the Escrow Agent be responsible for the validity or sufficiency of this
Agreement. 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 on such advice, the Escrow Agent shall
not
be liable to anyone. The Escrow Agent shall not be required to take any action
hereunder involving any expense unless the payment of such expense is made
or
provided for in a manner reasonably satisfactory to it.
(b) In
the
event conflicting demands are made or conflicting notices are served upon the
Escrow Agent with respect to the Escrow Account, the Escrow Agent will have
the
absolute right, at the Escrow Agent’s election, to do either or both of the
following: (i) resign as Escrow Agent so a successor can be appointed pursuant
to clause (e) of this Section 7, or (ii) file a suit in interpleader and obtain
an order from a court of competent jurisdiction requiring the parties to
interplead and litigate in such court their several claims and rights among
themselves. In the event such interpleader suit is brought, the Escrow Agent
will thereby be fully released and discharged from all further obligations
imposed upon it under this Agreement, and Parent on the one hand and the
Stockholder on the other hand will pay the Escrow Agent all costs, expenses
and
reasonable attorneys’ fees expended or incurred by the Escrow Agent pursuant to
the exercise of the Escrow Agent’s rights under this Section 7(b).
(c) The
Escrow Agent, its corporate parent, its subsidiary corporations or any of its
related companies, its employees, agents, officers, and directors, shall be
indemnified and held harmless by Parent, from and against any and all liability,
including all expenses reasonably incurred in its defense, to which the Escrow
Agent, its corporate parent, its subsidiary corporations or any of its related
companies, its employees, agents, officers, and directors, shall be subject
by
reason of any action taken or omitted or any investment or disbursement of
any
part of the Escrow Account made by the Escrow Agent pursuant to this Escrow
Agreement, except as a result of the Escrow Agent’s own gross negligence or
willful misconduct. This right of indemnification shall survive the termination
of this Escrow Agreement, and the removal or resignation of the Escrow Agent.
(d) The
Escrow Agent shall have no interest in the Escrow Account, but is serving as
escrow holder only and having only possession thereof.
6
(e) The
Escrow Agent may resign as Escrow Agent at any time and for any reason
whatsoever. In the event the Escrow Agent desires to resign as Escrow Agent
under this Agreement, the Escrow Agent shall deliver a notice to Parent and
the
Stockholder stating the date upon which such resignation shall be effective;
provided
however,
that
any such resignation shall not be effective until at least the 15th
business
day after Parent and the Stockholder receive such notice. Upon the receipt
of
any such notice from the Escrow Agent, Parent may appoint a successor escrow
agent without the consent of the Stockholder so long as such successor is a
bank
or trust company with assets of at least $500 million and may appoint any other
successor escrow agent with the consent of the Stockholder, which consent shall
not be unreasonably withheld. In the case of the appointment of any successor
escrow agent requiring the consent of the Stockholder as set forth in the
preceding sentence, Parent and the Stockholder shall deliver a written notice
to
the Escrow Agent designating the successor escrow agent. Upon the effectiveness
of the resignation of the Escrow Agent, the Escrow Agent shall deliver the
Escrow Account to any successor escrow agent properly designated hereunder,
whereupon the Escrow Agent shall be discharged from any and all further
obligations arising hereunder. The Escrow Agent shall be paid any outstanding
fees and expenses prior to transferring assets to a successor escrow agent.
If
upon the effective date of resignation of the Escrow Agent a successor escrow
agent has not been duly designated, the Escrow Agent’s sole responsibility after
that time shall be to retain and safeguard the Escrow Account until receipt
of a
designation of successor escrow agent or a final nonappealable order of a court
of competent jurisdiction.
(f) In
no
event shall the Escrow Agent be liable to any party for any special, indirect
or
consequential loss or damage of any kind, even if the Escrow Agent has been
previously advised of the possibility of such loss or damage.
8. Termination.
This
Agreement shall terminate upon the later of the Termination Date or the release
by the Escrow Agent of all of the property then held in the Escrow Account
pursuant to a written direction executed by Parent and the Stockholder or in
accordance with Section 3(e) of this Agreement.
9. Merger
of Escrow Agent.
In the
event the Escrow Agent is merged with, acquired or otherwise combined with
another entity, or the Escrow Agent transfers all or substantially all of its
assets, the successor as a result of such transaction will be the Escrow Agent
hereunder without any further action by the parties hereto.
10. Notices.
All
notices, instructions and other communications given hereunder or in connection
herewith shall be in writing. Any such notice, instruction or communication
shall be sent either (i) by registered or certified mail, return receipt
requested, postage prepaid, or (ii) via a reputable nationwide overnight courier
service, in each case to the address set forth below. Any such notice,
instruction or communication shall be deemed to have been delivered three
business days after it is sent prepaid, or 1 business day after it is sent
via a
reputable nationwide overnight courier service.
7
|
|
If
to Parent:
|
IsoRay,
Inc.
000
Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxx 00000
Attn:
Chief Executive Officer
Fax: (000) 000-0000 |
|
|
With
a copy to:
|
Xxxxxx
Xxxxxxxx, P.L.C.
0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000-0000
Attn:
Xxxxxxx X. Xxxxxxxxxx, Esq.
Fax:
(000) 000-0000
|
||
|
If
to the
Stockholder:
|
Xxxxxx Xxxxxxx 0000 XXX Xxxxxx Xxxxxxxxxxx,
Xxxxxxxxx 00000
Fax:
(___) ___-____
|
||
|
With
a copy to:
|
|||
|
If
to the Escrow
Agent:
|
IsoRay Medical, Inc.
000
Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxxxx 00000
Attn:
Chief Executive Officer
Fax: (000) 000-0000 |
||
|
|
With
a copy to:
|
Xxxxxx
Xxxxxxxx, P.L.C.
0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000-0000
Attn:
Xxxxxxx X. Xxxxxxxxxx, Esq.
Fax:
(000) 000-0000
|
Any
party may give any notice, instruction or communication in connection with
this
Agreement using any other means (including personal delivery, facsimile or
ordinary mail), but no such notice, instruction or communication shall be deemed
to have been delivered unless and until it is actually received by the party
to
whom it was sent. Any party may change the address to which notices,
instructions or communications are to be delivered by giving the other parties
to this Agreement notice thereof in the manner set forth in this Section
10.
8
11. General
(a) Effectiveness.
This
Agreement will become effective automatically upon the Closing of the Merger.
Unless and until the Merger closes, this document shall be of no force or
effect.
(b) Governing
Law.
This
Agreement shall be construed in accordance with, and governed in all respects
by, the internal laws of the State of Delaware (without giving effect to
principles of conflicts of laws).
(c) Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
(d) Entire
Agreement.
Except
as set forth in the Merger Agreement, this Agreement constitutes the entire
understanding and agreement of the parties with respect to the subject matter
of
this Agreement and supersedes all prior agreements or understandings between
the
parties with respect to the subject matter hereof.
(e) Waivers.
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.
(f) Amendment.
This
Agreement may be amended only with the written consent of Parent, the Escrow
Agent and the Stockholder (or their duly designated successors).
12. Tax
Reporting Matters.
(a) The
Escrow Agent may require the Stockholder to provide the Escrow Agent with a
certified tax identification number for such Stockholder by furnishing
appropriate Form W-9 and other forms and documents that the Escrow Agent may
reasonably request (collectively, “Tax
Reporting Documentation”).
The
parties hereto understand that, if such Tax Reporting Documentation is not
so
certified to the Escrow Agent, the Escrow Agent may be required by the Internal
Revenue Code of 1986, as it may be amended from time to time, (the “Code”),
to
withhold a portion of the Escrow Shares or other property held in the Escrow
Account by the Escrow Agent pursuant to this Agreement. Notwithstanding anything
herein to the contrary, the Escrow Agent shall have no obligation to file or
prepare any tax returns or to prepare any other reports for any taxing
authorities concerning the matters covered by this Escrow
Agreement.
9
(b) The
Escrow Agent need not make any distribution of any Escrow Shares, monies or
other property to the Stockholder (or any assignee or transferee of such
Stockholder) if such Stockholder (or assignee or transferee) has not furnished
to the Escrow Agent such Tax Reporting Documentation as the Escrow Agent may
require.
(c) Any
cash
received by the Escrow Agent under Section 5(c) of this Agreement shall be
allocated for tax reporting purposes to the Stockholder in accordance with
the
dollar amount such Stockholder is entitled to receive in lieu of such
Stockholder’s fractional shares as provided in Section 5(c) herein.
In
Witness Whereof,
the parties have duly executed this Agreement as of the day and year first
above
written.
Parent:
By:____________________________
Title:
____________________________
The
Company and Escrow Agent:
ISORAY
MEDICAL, INC.
By:
____________________________
Title:
____________________________
Stockholder:
____________________________
Xxxxxx
Xxxxxxx
10
