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Exhibit 10.15
ESCROW AGREEMENT
THIS
ESCROW AGREEMENT (the "Agreement") is made and entered into as
of
April ___, 2006, by and among Abbott Laboratories, a corporation
organized and
existing under the laws of the State of Illinois and having a
principal place of
business at 100 Abbott Park Road, Abbott Park, Illinois 60064
("Abbott") and
ImaRx Therapeutics, Inc., a corporation organized and existing
under the laws of
Delaware and having a principal place of business at 1635 East 18th
Street,
Tucson, Arizona 85719 ("ImaRx"), and LaSalle Bank National
Association, a
national banking association duly organized and existing under the
laws of the
United States of America, with its principal office in Chicago,
Illinois (the
"Escrow Agent").
WHEREAS, ImaRx and Abbott are parties to an Asset Purchase
Agreement (the
"Purchase Agreement") dated as of April 10, 2006.
WHEREAS, ImaRx is the maker of a Secured Promissory Note (the
"Note"),
dated as of even date herewith in favor of Abbott in the principal
amount of
$15,000,000.
WHEREAS, pursuant to the terms of the Security Agreement (the
"Security
Agreement") by and between Abbott and ImaRx, the Obligations (as
defined in the
Note) of ImaRx are secured by the Collateral (as defined in the
Security
Agreement).
WHEREAS, among other things, the Collateral includes any and all
proceeds
(the "Proceeds") from the sale or transfer of the Inventory (as
defined in the
Purchase Agreement), which such Proceeds are to be held in escrow,
pursuant to
the terms of the Security Agreement.
NOW,
THEREFORE, in consideration of the mutual promises contained
herein
and other good and valuable consideration, the receipt and
sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
ESTABLISHMENT OF ESCROW
1.1 From and after the execution of this Agreement, the following
will occur,
all of which shall be acknowledged by Abbott, ImaRx, and the Escrow
Agent:
(a)
Within five Business Days, ImaRx will deposit with the Escrow Agent
50%
of the proceeds of any sales of Inventory in the ordinary course of
business,
consistent with past practice after ImaRx has received proceeds
from such sales
equal to Five Million U.S. dollars. Such deposits, together with
any investment
earnings thereon, shall hereinafter collectively be referred to as
the "Escrow
Fund." ImaRx shall make the deposits referenced in this Section
1.1(a) until the
earlier of (A) the Note being repaid in full or (B) ImaRx having
deposited
Fifteen Million U.S. dollars with the Escrow Agent.
(b)
Abbott and ImaRx hereby appoint the Escrow Agent, and the Escrow
Agent
hereby agrees to serve, as the escrow agent and depositary subject
to the terms
and conditions set forth herein. The Escrow Agent shall receive the
Proceeds and
agrees to hold the Escrow Fund in a separate and distinct account
(the "Escrow
Account") which, subject to the terms and
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conditions of this Agreement, will be available for disbursement to
ImaRx or
Abbott at the Escrow Agent's office in Chicago, Illinois. The
Escrow Agent shall
not distribute or release any of the Escrow Fund except in
accordance with the
express terms and conditions of this Agreement.
ARTICLE II
INVESTMENT OF ESCROW FUND
2.1 The Escrow Fund shall be invested as soon as reasonably
practicable,
including income earned on said investment, in the Federated
Treasury
Obligations Fund (Trust Shares).
2.2 The Escrow Agent shall not be responsible to Abbott or ImaRx or
any other
person or entity for any loss or liability arising in respect of
any directed
investment in Section 2.1 except to the extent that such loss or
liability arose
from the Escrow Agent's gross negligence or willful misconduct.
ARTICLE III
DISBURSEMENTS FROM THE ESCROW ACCOUNT
3.1 The Escrow Agent shall only disburse amounts held in the Escrow
Account as
follows:
(a)
If on or before December 31, 2007, Abbott and ImaRx each execute
and
deliver a written notice of termination (the "Repayment Notice") to
the Escrow
Agent notifying the Escrow Agent of ImaRx' indefeasible payment in
full of
ImaRx' Obligations under the Note, then within 2 Business Days of
the date that
the Escrow Agent receives the Repayment Notice, the Escrow Agent
shall deliver
the Escrow Fund to ImaRx in accordance with the instructions for
payment
provided in the Repayment Notice.
(b)
If the Escrow Agent does not receive the Repayment Notice on or
before
December 31, 2007, then on December 31, 2007, the Escrow Agent
shall deliver the
Escrow Fund to Abbott via wire transfer of immediately available
funds, in
accordance with Abbott's written instructions less the amount of
any written
claim against the Escrow Fund delivered to Escrow Agent by Abbott
and ImaRx
prior to such date (a "Claim), in which event the Escrow Agent
shall deliver an
amount equal to the Escrow Fund less the amount of the Claim to
Abbott via wire
transfer of immediately available funds, in accordance with
Abbott's written
instructions, and shall hold the balance of the Escrow Fund pending
resolution
of the Claim pursuant to Section 5.3.
(c)
At any time prior to December 31, 2007, ImaRx may, by delivery
of
written notice to the Escrow Agent and Abbott, instruct the Escrow
Agent to pay
such amounts from the Escrow Account to Abbott as ImaRx may
instruct.
(d)
On the 15th day of each calendar month following the date hereof,
the
Escrow Agent shall deliver to Abbott and ImaRx a statement
detailing the amounts
deposited into the Escrow Account as of such date.
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ARTICLE IV
COMPENSATION; EXPENSES
4.1 In consideration for its services as Escrow Agent, the Escrow
Agent shall be
entitled to receive the compensation set forth in Exhibit A hereto,
as well as
the reimbursement of all reasonable out-of-pocket costs and
expenses actually
incurred by the Escrow Agent in the performance of its duties
hereunder. Abbott
and ImaRx shall share equally such compensation and expenses.
4.2 To the extent any amount due to the Escrow Agent pursuant to
Section 4.1 is
not paid, the Escrow Agent shall notify all parties hereto and if
such amount is
not paid within five (5) Business Days of such notice, then the
Escrow Agent may
deduct the same from the Escrow Account. In the event that Escrow
Agent has
offset such fees and expenses from the Escrow Fund, the party or
parties failing
to pay the same directly to Escrow Agent shall promptly reimburse
the Escrow
Fund for the same.
ARTICLE V
EXCULPATION AND INDEMNIFICATION
5.1 The obligations and duties of the Escrow Agent are confined to
those
specifically set forth in this Agreement. In the event that any of
the terms and
provisions of any other agreement between any of the parties hereto
conflict or
are inconsistent with any of the terms and provisions of this
Agreement, the
terms and provisions of this Agreement shall govern and control in
all respects.
The Escrow Agent shall not be subject to, nor be under any
obligation to
ascertain or construe the terms and conditions of any other
instrument, whether
or not now or hereafter deposited with or delivered to the Escrow
Agent or
referred to in this Agreement, nor shall the Escrow Agent be
obligated to
inquire as to the form, execution, sufficiency, or validity of any
such
instrument nor to inquire as to the identity, authority, or rights
of the person
or persons executing or delivering same.
5.2 The Escrow Agent shall not be personally liable for any act
that it may do
or omit to do hereunder in good faith and in the exercise of its
own best
judgment. Any act done or omitted to be done by the Escrow Agent
pursuant to the
advice of its attorneys shall be deemed conclusively to have been
performed or
omitted in good faith by the Escrow Agent.
5.3 In the event the Escrow Agent is notified of
