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EXHIBIT 99.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") is entered into this 9th day
of April, 1998, by and among SYBRON INTERNATIONAL CORPORATION ("SYBRON"), STATE
STREET BANK AND TRUST COMPANY (the "Escrow Agent"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (collectively, the "LRS Representatives"), and each of the
HOLDBACK PARTICIPANTS identified on SCHEDULE I.
WHEREAS, simultaneously with the execution and delivery hereof, SYBRON,
Normandy Acquisition Co. ("ACQUISITION"), LRS Acquisition Corp. ("LRS") and
Liberty Partners Holdings 5, L.L.C. ("Liberty") are consummating the
transactions described in an Agreement and Plan of Reorganization dated as of
January 23, 1998 (the "Agreement"), pursuant to which, among other things, each
share of the issued and outstanding capital stock of LRS, an outstanding warrant
held by Liberty to purchase LRS capital stock and certain outstanding options
for such capital stock was converted into or exchanged for common stock, par
value $0.01 per share, of SYBRON ("Common Stock") registered under the
Securities Act of 1933, resulting in the issuance of an aggregate of 3,215,982
shares of Common Stock (the "Merger Shares"); and
WHEREAS, the Agreement contemplates delivery by the LRS Warrantholder
and certain LRS Stockholders and LRS Optionholders, each identified on SCHEDULE
I hereto (each, a "Holdback Participant"), of a portion of the Merger Shares
received by such Holdback Participant, as identified on SCHEDULE I hereto, to
the Escrow Agent at the Closing as described herein, to be held by the Escrow
Agent in accordance with the terms hereof;
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein which are not otherwise
defined herein shall have the meanings given to such terms in the Agreement.
2. APPOINTMENT AND ACCEPTANCE. SYBRON, the LRS Representatives and the
Holdback Participants hereby constitute and appoint the Escrow Agent as, and the
Escrow Agent hereby agrees to assume and perform the duties of, the Escrow Agent
under and pursuant to this Escrow Agreement. Furthermore, the Holdback
Participants hereby authorize the LRS Representatives to act on their behalf as
described in this Escrow Agreement, including without limitation pursuant to
Section 20. Upon execution of this Escrow Agreement (and in any event prior to
the investment of funds), the LRS Representatives agree to obtain from each of
the Holdback Participants and deliver to the Escrow Agent a fully executed
Internal Revenue Service Form W-9. The parties hereto understand that, in the
event their tax identification numbers are not certified to the Escrow Agent,
the Internal Revenue Code, as amended from time to time, may require withholding
of a portion of any interest or other income earned on the investment of the
Escrow Deposit. The parties hereto agree that, for tax reporting purposes, all
interest or other income earned from the investment of the Escrow Fund
(including any Dispute Fund and any Reserved Amount, each as defined below,
which are part of the Escrow Fund) shall be allocable to the Holdback
Participants in accordance with their percentages set forth on SCHEDULE I.
3. ESTABLISHMENT OF ESCROW FUND. (a) Immediately upon the execution of
this Escrow Agreement, the Escrow Agent shall establish an escrow account (the
"Escrow Account") into and from which certain deposits and/or disbursements
shall be made pursuant to the terms of this Agreement.
(b) In accordance with the terms of Section 2.8(f) of the Agreement,
there hereby is deposited (the "Escrow Deposit"), on behalf of and at the
direction of the Holdback Participants, into the Escrow Account certificates
representing Merger Shares (the "Escrow Shares") together with a separate stock
power for each such certificate executed in blank by the record holder thereof,
receipt of which is hereby acknowledged by the Escrow Agent. The number of
Escrow Shares deposited by each Holdback Participant is set forth on SCHEDULE I
hereto. From and after the date hereof, the term "Escrow Fund" means the Escrow
Deposit less any distributions therefrom made in accordance
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with the provisions of this Escrow Agreement, plus any additions thereto
resulting from any stock split or stock dividend paid on the Escrow Shares and
delivered to the Escrow Agent and the proceeds from any sale of Merger Shares as
described in Section 20. All such distributions and additions shall be allocable
to the Holdback Participants in accordance with their percentages set forth on
SCHEDULE I. In particular, and not in limitation of the foregoing, the Escrow
Fund shall include any property held in a Dispute Fund and any Reserved Amount
(each as defined below).
4. DISPOSITION OF ESCROW FUND. SYBRON and the LRS Representatives
hereby instruct the Escrow Agent, and the Escrow Agent hereby agrees, to hold,
invest and dispose of the Escrow Fund and any interest and other income received
from the investment or reinvestment of the Escrow Fund, including any cash
dividends received with respect to shares held therein (collectively, the
"Interest"), in accordance with and subject to the terms, conditions,
limitations and restrictions contained in this Escrow Agreement.
5. INVESTMENT. The Escrow Agent shall invest and reinvest any cash
funds from time to time comprising part of the Escrow Fund and all Interest in
SSgA U.S. Treasury Money Market Funds. In no event shall the Escrow Agent have
any liability under this Escrow Agreement for investment losses incurred on any
investment or reinvestment made in accordance with the terms of this Escrow
Agreement.
6. CHARGES AGAINST ESCROW DEPOSIT. (a) The Escrow Fund has been
established for the purposes of securing and providing a source for satisfying
the indemnification rights of SYBRON and the Surviving Corporation pursuant to
Section 10.3 of the Agreement. In the event that, and from time to time as,
SYBRON, the Surviving Corporation or, with respect to defense costs permitted to
be recovered from the Escrow Fund pursuant to Section 10.3 of the Agreement, the
LRS Representatives (any of such parties hereinafter also referred to as the
"Claimant") is entitled to amounts pursuant to Section 10.3 of the Agreement (an
"Indemnification Claim"), the Claimant shall promptly provide written notice
(which notice shall set forth with reasonable specificity the basis for the
Indemnification Claim and the amount of the Indemnification Claim (the "Claimed
Amount")) thereof to the Escrow Agent and, if the Claimant is SYBRON or the
Surviving Corporation, to the LRS Representatives (collectively, an "Other
Party" for purposes hereof) or, if the Claimant is the LRS Representatives, to
SYBRON and the Surviving Corporation (collectively, an "Other Party" for
purposes hereof).
(b) Unless it receives a timely Objection Notice pursuant to Section 7
from the Other Party, at the end of the time period set forth in such Section 7
for the giving of an Objection Notice, the Escrow Agent shall disburse to the
Claimant out of the Escrow Fund the Claimed Amount. The LRS Representatives
shall have the right to designate whether the Claimed Amount is satisfied with
cash contained in the Escrow Fund, Merger Shares or a combination of cash and
Merger Shares, provided notice of such designation is given to the Escrow Agent
and SYBRON no later than 5:00 p.m., Eastern Time, on the fifth business day
following expiration of the time period set forth in Section 7 for the giving of
an Objection Notice. If no such designation is made, the manner in which the
Claimed Amount is satisfied from the Escrow Fund shall be at the discretion of
the Escrow Agent. Any disbursement of Escrow Shares to the Claimant as described
herein shall be accomplished by delivery of the certificates representing the
Escrow Shares to BankBoston, N.A., the transfer agent for the Escrow Shares,
with instructions to transfer and deliver to the Claimant a stock certificate
evidencing the requisite number of shares to be released to the Claimant, with
certificates representing the balance to be returned to the Escrow Agent. The
Holdback Participants agree to take all actions necessary to cause such transfer
agent to so transfer the Escrow Shares.
(c) If the Escrow Agent receives a timely Objection Notice pursuant to
Section 7 from the Other Party, then the disbursement of the Escrow Fund shall
be governed by the procedures set forth in Sections 7 and 8 hereof.
7. DISPUTE OF INDEMNIFICATION CLAIM AGAINST ESCROW FUND.
(a) The Other Party shall have the right to dispute any Indemnification
Claim within the thirty (30) calendar day period following delivery of notice of
the Indemnification Claim to the Escrow Agent by delivering to the Escrow Agent
and the Claimant written notice that the Indemnification Claim is being
disputed. Such notice shall include the basis, with reasonable specificity, of
the objection and identification of the portion, if any, of the Claimed Amount
to which the Other Party has no objection and which may be released to the
Claimant.
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(b) Upon timely receipt of an Objection Notice, the Escrow Agent shall
reserve against the Escrow Fund an amount equal to the Claimed Amount (less any
portion thereof released as described in Section 7(a)) and place the amount so
reserved in a separate account (such amount so reserved and placed in a separate
account being called a "Dispute Fund"). Any Merger Shares reserved as part of
the Dispute Fund (and for all other purposes of this Escrow Agreement other than
a sale pursuant to Section 20) shall be valued at $27.1042 (the Average Sybron
Stock Price) and such reservation may be accomplished without an actual transfer
of share certificates but by an appropriate entry in the Escrow Agent's records
(pending resolution of the Indemnification Claim). The LRS Representatives shall
have the right to designate whether such reserved amount (and the portion of the
Claimed Amount which may be released in accordance with Section 7(a)) is
satisfied with cash contained in the Escrow Fund, Merger Shares or a combination
of cash and Merger Shares, provided notice of such designation is given to the
Escrow Agent and SYBRON no later than 5:00 p.m., Eastern Time, on the fifth
business day following the Escrow Agent's receipt of the Objection Notice. If no
such designation is made, the manner in which the reserved amount (or released
amount, if applicable) is satisfied from the Escrow Fund shall be at the
discretion of the Escrow Agent. The disbursement of any released portion of the
Claimed Amount (as described in Section 7(a)) to be satisfied with Escrow Shares
shall be accomplished in the same manner as set forth in Section 6(b).
(c) A Dispute Fund shall continue to be held hereunder by the Escrow
Agent pursuant to the terms hereof until the earlier of: (i) the receipt by the
Escrow Agent of joint written instructions from the Claimant and the Other
Party, in which case the Escrow Agent shall promptly follow the instructions
therein; or (ii) the receipt by the Escrow Agent, with a copy to all other
interested parties under this Escrow Agreement, of a certified copy of a Final
Judgment (as hereinafter defined) with respect to the Indemnification Claim and
the Dispute Fund by a court of competent jurisdiction, together with a notarized
affidavit (made under penalties of perjury) from the delivering party which
states that the order delivered to the Escrow Agent is a Final Judgment (as
hereinafter defined), in which case the Escrow Agent shall promptly proceed in
accordance with the Final Judgment. An order shall be deemed final (a "Final
Judgment") upon (A) the expiration of the time allowed for appeal without either
the Claimant or the Other Party having appealed such order, or (B) entry of such
final order if no right of appeal exists or such appeal shall have been finally
determined.
8. TERMINATION; RELEASE OF ESCROW FUND. The Escrow Fund shall terminate
(the "Escrow Fund Termination Date") on the earlier to occur of: (i) the date
that the first audit of SYBRON's financial statements following the execution of
this Escrow Agreement is completed (which date shall be certified to the Escrow
Agent by SYBRON), or (2) the date which is one (1) year following execution of
this Escrow Agreement; except with respect to (A) any Dispute Funds then
existing and (B) any Indemnification Claims made pursuant to Section 6 which
have not yet been paid in accordance with the provisions of Section 6 or for
which the time period for the giving of an Objection Notice in accordance with
the provisions of Section 7 has not yet expired (the "Reserved Amounts"). The
Escrow Agent shall on the business day next succeeding the Escrow Fund
Termination Date disburse to the Holdback Participants pursuant to the
guidelines set forth in SCHEDULE II and in accordance with their percentages set
forth on SCHEDULE I the property then remaining in the Escrow Fund, less the
Reserved Amounts, along with all of the Interest, if any. The Dispute Funds and
Reserved Amounts shall continue to be held hereunder by the Escrow Agent
pursuant to the terms hereof, and this Escrow Agreement shall continue in full
force and effect, until each Indemnification Claim is paid and/or each dispute
with respect thereto has been resolved in accordance with the provisions of
Section 7 and the Escrow Agent has disbursed such Dispute Funds and Reserved
Amounts in accordance with the terms of Sections 6 or 7 above. Upon disbursement
of the last of the Dispute Funds and Reserved Amounts, the Escrow Agent shall
disburse to the Holdback Participants pursuant to the guidelines set forth on
SCHEDULE II and in accordance with their percentages set forth on SCHEDULE I any
Interest earned since the Escrow Fund Termination Date on such Dispute Funds and
Reserved Amounts.
9. PERFORMANCE BY THE ESCROW AGENT. The Escrow Agent may seek advice
from counsel of its choice (other than counsel for SYBRON or any Holdback
Participant but including any in-house counsel employed by the Escrow Agent) and
may rely upon such advice as it thereupon receives in writing, or it may act or
refrain from acting in accordance with its best judgment and shall not, as a
result thereof, be liable to any party to this Escrow Agreement except for
willful misconduct, gross negligence, willful violation of this Escrow Agreement
or willful violation of applicable law. The Escrow Agent (i) shall not be
responsible for any of the other agreements referred to herein and
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shall be obligated only for the performance of such duties as are specifically
set forth in this Escrow Agreement; (ii) shall not be responsible for any aspect
of a sale of Escrow Shares as set forth in Section 20 from the time of its
release of such Escrow Shares in accordance with instructions contained in the
relevant Sale Notice (as defined in Section 20) to the time of its receipt of
sale proceeds resulting from any such sale, including without limitation the
adequacy of any purchase price received upon any such sale; and (iii) shall not
be obligated to take any legal or other action hereunder which might in its
judgment involve any expense or liability unless it shall have been furnished
with acceptable indemnification.
10. RESPONSIBILITY OF THE ESCROW AGENT.
(a) The Escrow Agent, as such, shall not be responsible or liable to
any person, whether or not a party to this Escrow Agreement, for any act or
omission of any kind so long as it has acted in good faith upon the instructions
herein contained or upon the instructions hereafter delivered to it as
contemplated by this Escrow Agreement or upon advice of counsel as provided in
Section 9. To the extent that the Escrow Agent incurs any loss or liability
(including reasonable attorneys' fees and expenses resulting from any such act
or omission or arising out of or in connection with this Escrow Agreement or
administration of its duties hereunder), SYBRON and the Holdback Participants
shall jointly and severally indemnify the Escrow Agent therefor, unless the loss
or liability resulted from the Escrow Agent's willful misconduct, gross
negligence, willful violation of this Escrow Agreement or willful violation of
applicable law.
(b) With respect to their respective obligations to indemnify the
Escrow Agent hereunder, SYBRON and the Holdback Participants expressly reserve
all of their rights as against each other to seek contribution, reimbursement or
any other appropriate relief.
(c) The Escrow Agent may rely and act upon any certificate or other
document conforming to the applicable provisions hereof and reasonably believed
by it to be genuine and to have been signed by the proper party, including
without limitation any Sale Notice received by it pursuant to Section 20. All
persons shall be conclusively bound as against the Escrow Agent by any payment
or release of the Escrow Fund pursuant to, and in conformity with, the terms of
this Escrow Agreement.
(d) SYBRON and the Holdback Participants jointly and severally agree to
assume any and all obligations imposed now or hereafter by any applicable tax
law with respect to the payment of the Escrow Fund under this Escrow Agreement,
and to indemnify and hold the Escrow Agent harmless from and against any taxes,
additions for late payment, interest, penalties and other expenses that may be
assessed against the Escrow Agent in connection with any such payment or other
activities under this Escrow Agreement. SYBRON and the Holdback Participants
undertake to instruct the Escrow Agent in writing with respect to the Escrow
Agent's responsibility for withholding and other taxes, assessments or other
governmental charges, certifications and governmental reporting in connection
with its acting as Escrow Agent under this Escrow Agreement insofar as such
items relate to the maintenance and release of the Escrow Fund. SYBRON and the
Holdback Participants jointly and severally agree to indemnify and hold the
Escrow Agent harmless from any liability on account of taxes, assessments or
other governmental charges, including without limitation the withholding or
deduction or the failure to withhold or deduct the same, and any liability for
failure to obtain proper certifications or to properly report to governmental
authorities, to which the Escrow Agent may be or become subject in connection
with or which arise out of this Escrow Agreement insofar as they relate to the
maintenance and release of the Escrow Fund, including costs and expenses
(including reasonable legal fees and expenses), interest and penalties, unless
such liability results from the Escrow Agent's willful misconduct, gross
negligence, willful violation of this Escrow Agreement or willful violation of
applicable law. In no event shall the Escrow Agent be responsible for indirect,
consequential or special damages.
(e) The foregoing indemnities set forth in this Section 10 and the
obligations set forth in Section 12 shall survive the resignation or removal of
the Escrow Agent and the termination of this Escrow Agreement. The Escrow Agent
shall have no more or less responsibility or liability on account of any action
or omission of any book-entry depository or subescrow agent employed by the
Escrow Agent than any such book-entry depository or subescrow agent has to the
Escrow Agent, except to the extent that such action or omission of any
book-entry depository or subescrow agent was caused by the Escrow Agent's own
gross negligence, bad faith or willful misconduct.
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11. RESIGNATION OF THE ESCROW AGENT. The Escrow Agent may at any time
resign by giving thirty (30) days written notice of resignation to SYBRON and
the LRS Representatives. In such event SYBRON and the LRS Representatives shall
appoint a successor escrow agent to be effective on the effective date of the
aforesaid resignation. If no successor escrow agent is named by SYBRON and the
LRS Representatives, the Escrow Agent may apply to a court of competent
jurisdiction for appointment of a successor escrow agent. All right, title and
interest to the Escrow Fund and any Interest, and any proceeds thereof, shall be
transferred to the successor escrow agent and this Escrow Agreement shall be
assigned to such successor escrow agent, and the resigning Escrow Agent shall
thereupon be released from further obligations hereunder.
12. DISCHARGE OF THE ESCROW AGENT. The Escrow Agent agrees that SYBRON
and the LRS Representatives may, by mutual written agreement at any time upon
thirty (30) days written notice, remove the Escrow Agent as escrow agent
hereunder, and substitute a bank or trust company therefor, in which event, upon
receipt of written notice thereof and payment of any accrued but unpaid fees or
expenses due the Escrow Agent, the Escrow Agent shall account for and deliver to
such substituted escrow agent the Escrow Fund held by it, and the Escrow Agent
shall thereafter be discharged from all liability hereunder.
13. EXPENSES. The Escrow Agent shall be entitled to fees for its
services hereunder and expenses payable in accordance with SCHEDULE III attached
hereto, including legal fees incurred in connection with the preparation of this
Escrow Agreement and the preparation of any amendment hereto in an amount not to
exceed the limit set forth on SCHEDULE III. Such expenses shall not include any
expenses incurred by the Escrow Agent with respect to its retention of any
book-entry depository or subescrow agent. All charges and expenses of the Escrow
Agent under this Escrow Agreement shall be borne one-half by SYBRON and one-half
by the Holdback Participants (allocated among such Holdback Participants based
on their respective percentages set forth on SCHEDULE I); except that the
Holdback Participants shall be solely responsible for all transaction fees and
charges incurred in connection with any sale of Escrow Shares as described in
Section 20. In the event that the Escrow Agent is authorized to make a cash
disbursement to any party pursuant to and in accordance with the terms of this
Escrow Agreement, and fees and expenses are then due from and payable by such
party to the Escrow Agent pursuant to the terms of this Escrow Agreement, the
Escrow Agent is hereby authorized to offset such amounts due and payable to it
against the disbursement to such party.
14. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given on the day actually
delivered when delivered personally, by commercial courier or by a telephonic
facsimile transmission and followed by hard copy sent by United States mail, or
three (3) days after being deposited in the United States mail, certified or
registered mail, postage prepaid, return receipt requested, and in each case
addressed as follows, unless and until any of such parties notifies the others
in accordance with this Section of a change of address:
If to the LRS Representatives: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
c/o Liberty Capital Partners, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
c/o Rainin Instrument Co.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
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With a copy to (which copy shall not
constitute notice to any LRS
Representative):
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Fax No. 312/▇▇▇-▇▇▇▇
If to the Holdback Participants: To the addresses set forth on SCHEDULE II.
With a copy to (which copy shall not
constitute notice to any Holdback
Participant):
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Fax No. 312/▇▇▇-▇▇▇▇
If to SYBRON or the Surviving Sybron International Corporation
Corporation: Attn: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Fax No. 414/▇▇▇-▇▇▇▇
With a copy to (which copy shall not
constitute notice to SYBRON or the
Surviving Corporation):
▇▇▇▇▇▇▇ & ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
If to the Escrow Agent: State Street Bank and Trust Company
Attn: Corporate Trust ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
15. GOVERNING AGREEMENT; AMENDMENTS. The Escrow Agent hereby
acknowledges receipt of a copy of the Agreement, but except for reference
thereto for definitions of certain words and terms not defined herein, the
Escrow Agent is not charged with any duty or obligation arising under the
Agreement and the responsibilities and duties of the Escrow Agent shall be
governed by this Escrow Agreement. As between the Escrow Agent, on the one hand,
and the other parties hereto, on the other hand, this Escrow Agreement
constitutes the entire agreement with respect to the subject matter herein. As
between the other parties hereto, this Escrow Agreement shall govern to the
extent of any conflict between it and the Agreement or any other agreement or
writing, unless otherwise provided herein. No change in, addition to, or waiver
of the terms and conditions hereof shall be binding upon any of the parties
hereto unless approved in writing by the other parties hereto.
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16. BINDING EFFECT. This Escrow Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors, assigns
and legal representatives. No party hereto may assign any of its rights,
interests or obligations hereunder without the consent of the other parties
hereto.
17. APPLICABLE LAW. This Escrow Agreement shall be governed by and
construed as to validity, enforcement, interpretation, construction, effect and
in all other respects in accordance with the internal laws (as opposed to the
conflicts of law provisions) of the State of Wisconsin applicable to contracts
made in that State.
18. COUNTERPARTS. This Escrow Agreement may be executed in two or more
counterparts, each of which is an original but all of which together shall
constitute one and the same instrument. Delivery of this Escrow Agreement may be
accomplished by facsimile.
19. INTERPRETATION. Titles and headings to Sections herein are inserted
for convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Escrow Agreement. Unless
specifically identified as a reference to another document, any reference to a
"Section" herein shall be deemed to be a reference to such Section of this
Escrow Agreement. Whenever the terms hereof call for any notice, payment or
other action on a day which is not a business day, such payment or action may be
taken, or such notice given, as the case may be, on the next succeeding business
day. As used herein, "business day" shall mean any day other than a Saturday or
Sunday, or any other day on which the Escrow Agent is closed for business.
20. RIGHTS AS SHAREHOLDERS. Other than as specifically set forth
herein, the Holdback Participants shall be entitled to exercise all rights they
may otherwise have as the record holders of the Escrow Shares, including without
limitation the right to vote and sell the Escrow Shares. The LRS Representatives
shall have the right, in their sole discretion, to obtain the release of all or
any portion of the Escrow Shares then held as part of the Escrow Fund so that
such shares may be sold; provided that such sale may only be accomplished in
accordance with the provisions of the Affiliate Letters and the Registration
Rights Agreement (each as defined in and executed pursuant to the Agreement);
provided further that any such sale shall involve a sale of Escrow Shares by all
Holdback Participants, to be allocated among such Holdback Participants in
accordance with their respective percentages set forth on SCHEDULE I; and
provided further that all proceeds from a sale of Escrow Shares as described
herein shall be promptly deposited upon receipt thereof by the Escrow Agent into
the Escrow Account to be held as part of the Escrow Fund in accordance with the
provisions of this Escrow Agreement. The Escrow Agent agrees (i) to release
(prior to the receipt of any sale proceeds) any Escrow Shares (and the
accompanying blank stock power(s)) proposed to be sold upon its receipt of
written notice of the intended sale (a "Sale Notice") from the LRS
Representatives, which notice shall be provided at least five (5) days prior to
the proposed release date of the Escrow Shares and shall specify the number of
shares to be released and appropriate delivery instructions with respect
thereto, (ii) to cooperate with the LRS Representatives in their dealings with
SYBRON's transfer agent in order to obtain new certificates representing Escrow
Shares not sold as described herein, and (iii) to accept the proceeds from any
sale of Escrow Shares as described in Section 3(b). Upon the giving of any Sale
Notice to the Escrow Agent, the LRS Representatives shall provide a copy thereof
to SYBRON.
21. ACTION BY LRS REPRESENTATIVES. At any time any action is required
or permitted to be taken by the LRS Representatives pursuant to the provisions
of this Escrow Agreement, including without limitation the execution of any
document or instrument, such action shall be deemed to have been taken if at
least two (2) of the three (3) LRS Representatives so act.
22. DISPUTE RESOLUTION. It is understood and agreed that should any
dispute arise with respect to the delivery, ownership, right of possession,
and/or disposition of the Escrow Fund (including any Dispute Fund or Reserved
Amount), or should any claim be made upon such Escrow Fund by a third party, the
Escrow Agent, upon receipt of written notice of such dispute or claim by the
parties hereto or by a third party, is authorized and directed to retain in its
possession without liability to anyone, all or any of said Escrow Fund until
such dispute shall have been settled either by the mutual written agreement of
the parties involved or by a Final Judgment. The Escrow Agent may, but shall be
under no duty whatsoever to, institute or defend any legal proceedings which
relate to the Escrow Fund (including any Dispute Fund or Reserved Amount).
7
8
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
SYBRON INTERNATIONAL CORPORATION
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Title: Vice President-Finance
-------------------------------------------
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as an LRS Representative
/s/▇▇▇▇▇▇ ▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇▇▇, as a Holdback Participant and an LRS
Representative
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as a Holdback Participant and an LRS
Representative
STATE STREET BANK AND TRUST COMPANY
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Title: Assistant Vice President
--------------------------------------------
LIBERTY PARTNERS HOLDINGS 5, L.L.C.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Managing Director
--------------------------------------------
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as a Holdback Participant
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as a Holdback Participant
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Holdback Participant
8
9
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as a Holdback Participant
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as a Holdback Participant
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as a Holdback Participant
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as a Holdback Participant
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Holdback Participant
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Holdback Participant
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 4-6-98
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
STATE BOARD OF ADMINISTRATION OF
FLORIDA
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Managing Director
--------------------------------------------
9
10
SCHEDULE I
ESCROW DEPOSIT
[ATTACHED]
10
11
HOLDBACK SHARES
2.8(b)(ii) $6,300,000 divided by $27.1042 = 232,436
------------------------------------------------------------------------------------------------------------
Name of Share Holdback
Holdback Participant Entitlement Percentage Allocation
------------------------------------------------------------------------------------------------------------
Liberty Partners Holdings 5 LLC 1,075,719.70 34.68 80,609
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,114,309.06 35.94 83,538
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 294,013.64 9.48 22,035
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 98,004.55 3.16 7,345
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 100,630.98 3.24 7,531
▇▇▇▇▇▇ ▇▇▇ 84,003.90 2.71 6,299
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 98,097.17 3.16 7,345
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 14,000.65 0.45 1,045
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 25,510.10 0.82 1,906
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 15,854.13 0.51 1,185
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 14,622.62 0.47 1,092
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 9,748.42 0.31 721
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 4,874.21 0.16 ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇. ▇▇ ▇▇▇▇▇▇▇ 151,965.78 4.91 11,413
---------- ---- ------
3,101,354.91 100% 232,436
============ ==== =======
11
12
SCHEDULE II
GUIDELINES FOR DISBURSEMENTS FROM THE ESCROW DEPOSIT
TO THE HOLDBACK PARTICIPANTS
Prior to termination of the Escrow Fund, each Holdback Participant shall submit
payment and/or delivery instructions to the Escrow Agent. The address and/or fax
number for each Holdback Participant as of the date of the Escrow Agreement is
as indicated below:
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Liberty Partners Holdings 5,
L.L.C. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
1177 Avenue of the Americas ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
11067 Ipai Court
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
c/▇ ▇▇▇▇▇▇▇▇ Associates, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Administration of Florida
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ c/o Liberty Capital
Partners, Inc.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1177 Avenue of the Americ
c/o HealthCare Ventures ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Fax No. ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
11416 Caminito Corriente ▇▇▇▇▇▇▇▇ Associates, Inc.
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Araxsys, Inc.
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ c/o Rainin Instrument Co.
Fax No. ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Fax No. ▇▇▇-▇▇▇-▇▇▇▇