ESCROW AGREEMENT
Dated as of June 16, 2025
among
SOLSTICE BIOMEDICAL DEVICES LTD.
APEX SURGICAL INNOVATIONS, INC.
and
TIDEWATER FIDUCIARY SERVICES, INC.
as Escrow Agent
TABLE OF CONTENTS
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This ESCROW AGREEMENT (this "Agreement") is made and entered into as of June 16, 2025 (the "Effective Date"), by and among:
(1) Solstice Biomedical Devices Ltd., a private limited company organized and existing under the laws of Ireland (Companies Registration Office No. 648217), with its registered office at Unit 14, Clonskeagh Business Park, Clonskeagh Road, Dublin 14, D14 YF28, Ireland (the "Depositor" or "Solstice");
(2) Apex Surgical Innovations, Inc., a corporation duly organized and existing under the laws of the State of Delaware (EIN: 51-0483762), with its principal office at 1220 North Market Street, Suite 550, Wilmington, Delaware 19801 (the "Beneficiary" or "Apex"); and
(3) Tidewater Fiduciary Services, Inc., a corporation duly organized and existing under the laws of the State of Delaware, with its principal office at 300 Delaware Avenue, Suite 1400, Wilmington, Delaware 19801 (the "Escrow Agent" or "Tidewater").
The Depositor, the Beneficiary, and the Escrow Agent are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. The Litigation. Apex Surgical Innovations, Inc. is the plaintiff in that certain civil action styled Apex Surgical Innovations, Inc. v. Solstice Biomedical, Inc., Case No. 1:24-cv-00587-RGA, currently pending before the Honorable Richard G. Andrews in the United States District Court for the District of Delaware (the "Litigation"). In the Litigation, Apex has alleged that Solstice Biomedical, Inc., a corporation organized under the laws of the State of Delaware (EIN: 84-3291056), with its principal offices at 3800 Concord Pike, Suite 410, Wilmington, Delaware 19803 — a wholly owned subsidiary of Solstice Biomedical Devices Ltd. — has infringed, and continues to infringe, United States Patent No. 9,814,237 (the "'237 Patent"), United States Patent No. 10,271,884 (the "'884 Patent"), and United States Patent No. 10,932,105 (the "'105 Patent") through the manufacture, importation, use, sale, and offer for sale of Solstice's PrecisionEdge™ line of laparoscopic trocar assemblies, including the PrecisionEdge™ 5 mm, PrecisionEdge™ 12 mm, and PrecisionEdge™ 15 mm devices, and related components, accessories, and packaging therefor.
B. The Settlement Agreement. In order to resolve the Litigation and all claims and counterclaims arising therefrom, Solstice Biomedical Devices Ltd., Solstice Biomedical, Inc., and Apex Surgical Innovations, Inc. have entered into that certain Settlement Agreement and Mutual Release dated as of June 16, 2025 (as may be amended, supplemented, or modified from time to time, the "Settlement Agreement"). The Settlement Agreement provides for, among other things, a lump-sum payment in the aggregate amount of Eight Million Seven Hundred Fifty Thousand Dollars ($8,750,000) from Solstice to Apex, payable in two tranches: (i) a first tranche of Five Million Two Hundred Fifty Thousand Dollars ($5,250,000), due on or before June 30, 2025, and (ii) a second tranche of Three Million Five Hundred Thousand Dollars ($3,500,000), due on or before September 15, 2025.
C. Escrow Arrangement. The Settlement Agreement requires that the lump-sum payments described in Recital B above be deposited into an escrow account maintained by Tidewater Fiduciary Services, Inc. and released to Apex in accordance with the terms and conditions set forth in this Agreement. The Depositor and the Beneficiary desire to establish the terms and conditions governing such escrow arrangement, and the Escrow Agent has agreed to act as escrow agent with respect thereto, subject to the terms of this Agreement.
D. Escrow Agent's Willingness. Tidewater Fiduciary Services, Inc. is willing to serve as Escrow Agent upon, and solely upon, the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below:
"Beneficiary" means Apex Surgical Innovations, Inc., a corporation organized under the laws of the State of Delaware (EIN: 51-0483762).
"Business Day" means any day other than a Saturday, Sunday, or any other day on which banking institutions in Wilmington, Delaware are authorized or required by applicable law or executive order to close.
"Depositor" means Solstice Biomedical Devices Ltd., a private limited company organized under the laws of Ireland (CRO No. 648217).
"Escrow Account" means the segregated, interest-bearing escrow account established and maintained by the Escrow Agent at a federally insured banking institution in Wilmington, Delaware, in accordance with Section 2.1 hereof, designated as "Tidewater Fiduciary Services, Inc. — Escrow Account FBO Apex Surgical Innovations, Inc. / Solstice Biomedical Devices Ltd." and bearing such account number as the Escrow Agent shall assign thereto.
"Escrow Agent" means Tidewater Fiduciary Services, Inc., a corporation organized under the laws of the State of Delaware.
"Escrow Funds" means, collectively, the Tranche 1 Deposit, the Tranche 2 Deposit, and any and all interest, earnings, or other income accrued or earned thereon while held in the Escrow Account.
"Joint Written Instructions" means written instructions executed and delivered to the Escrow Agent and bearing the original or electronic signature of an authorized representative of both the Depositor and the Beneficiary as identified in Section 4.3 hereof.
"Release Notice" means a written notice delivered by the Depositor to the Escrow Agent confirming that a deposit has been made into the Escrow Account and requesting release of such deposit to the Beneficiary in accordance with Article III hereof.
"Settlement Agreement" means the Settlement Agreement and Mutual Release dated as of June 16, 2025, by and among Solstice Biomedical Devices Ltd., Solstice Biomedical, Inc., and Apex Surgical Innovations, Inc., as may be amended, supplemented, or otherwise modified from time to time in accordance with its terms.
"Tranche 1 Deposit" means the amount of Five Million Two Hundred Fifty Thousand Dollars ($5,250,000).
"Tranche 1 Deposit Deadline" means June 30, 2025, which date falls within ten (10) Business Days following the execution and delivery of the Settlement Agreement.
"Tranche 2 Deposit" means the amount of Three Million Five Hundred Thousand Dollars ($3,500,000).
"Tranche 2 Deposit Deadline" means September 15, 2025.
Section 1.2 — Interpretation
(a) All references in this Agreement to the Settlement Agreement shall be deemed to include all exhibits, schedules, annexes, and amendments thereto, unless the context otherwise requires.
(b) Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Settlement Agreement.
(c) The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
(d) Unless the context otherwise requires, words importing the singular number shall include the plural and vice versa, and words importing a gender shall include every gender.
(e) All references herein to "Sections," "Articles," "Schedules," and "Exhibits" shall refer to Sections, Articles, Schedules, and Exhibits of this Agreement, unless otherwise specified.
(f) The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation."
(g) All references to dollar amounts or "$" refer to United States dollars unless otherwise expressly stated.
ARTICLE II — ESTABLISHMENT OF ESCROW; DEPOSITS
Section 2.1 — Establishment of Escrow Account
(a) Promptly following the execution and delivery of this Agreement, and in any event within two (2) Business Days thereafter, the Escrow Agent shall establish and maintain the Escrow Account at a federally insured banking institution located in Wilmington, Delaware. The Escrow Account shall be a segregated, interest-bearing account (money market account or its functional equivalent) and shall be maintained separate and apart from all other accounts and assets of the Escrow Agent.
(b) Within two (2) Business Days following the establishment of the Escrow Account, the Escrow Agent shall furnish to the Depositor and the Beneficiary, in writing (which may be by email), the complete account details and wire transfer instructions for the Escrow Account, including the name of the depository institution, ABA routing number, account number, account name, and any reference information required to properly credit wire transfers to the Escrow Account.
(c) The Escrow Agent shall hold the Escrow Funds in the Escrow Account and shall not commingle the Escrow Funds with any other funds or assets of the Escrow Agent or of any other person or entity.
Section 2.2 — Tranche 1 Deposit
(a) The Depositor shall deposit, or cause to be deposited, the Tranche 1 Deposit in the amount of Five Million Two Hundred Fifty Thousand Dollars ($5,250,000) into the Escrow Account by wire transfer of immediately available funds on or before the Tranche 1 Deposit Deadline (June 30, 2025).
(b) Upon receipt of the Tranche 1 Deposit, the Escrow Agent shall promptly, and in any event within one (1) Business Day following receipt, confirm receipt of the Tranche 1 Deposit in writing (including by electronic mail) to both the Depositor and the Beneficiary, substantially in the form of the Deposit Confirmation Notice attached hereto as Exhibit A.
Section 2.3 — Tranche 2 Deposit
(a) The Depositor shall deposit, or cause to be deposited, the Tranche 2 Deposit in the amount of Three Million Five Hundred Thousand Dollars ($3,500,000) into the Escrow Account by wire transfer of immediately available funds on or before the Tranche 2 Deposit Deadline (September 15, 2025).
(b) Upon receipt of the Tranche 2 Deposit, the Escrow Agent shall promptly, and in any event within one (1) Business Day following receipt, confirm receipt of the Tranche 2 Deposit in writing (including by electronic mail) to both the Depositor and the Beneficiary, substantially in the form of the Deposit Confirmation Notice attached hereto as Exhibit A.
Section 2.4 — Failure to Deposit
(a) If the Escrow Agent has not received the Tranche 1 Deposit by the close of business on the Tranche 1 Deposit Deadline, the Escrow Agent shall provide written notice of such non-receipt to both the Depositor and the Beneficiary within two (2) Business Days following the Tranche 1 Deposit Deadline.
(b) If the Escrow Agent has not received the Tranche 2 Deposit by the close of business on the Tranche 2 Deposit Deadline, the Escrow Agent shall provide written notice of such non-receipt to both the Depositor and the Beneficiary within two (2) Business Days following the Tranche 2 Deposit Deadline.
(c) For the avoidance of doubt, the rights and remedies of the Beneficiary arising from any failure by the Depositor to make either the Tranche 1 Deposit or the Tranche 2 Deposit by the applicable deadline are governed exclusively by the Settlement Agreement and are not limited, modified, or otherwise affected by this Escrow Agreement. The Escrow Agent shall have no liability whatsoever to any Party for any consequences arising from the Depositor's failure to make a timely deposit.
Section 2.5 — Depositor's Wire Transfer Instructions
(a) The Depositor shall cause all wire transfers to the Escrow Account to originate from a bank account held in the name of Solstice Biomedical Devices Ltd. or Solstice Biomedical, Inc. The Escrow Agent shall not be required to accept any funds wired from an account not held in the name of either of such entities unless the Escrow Agent receives prior written authorization from both the Depositor and the Beneficiary confirming that such alternative origination is authorized.
(b) The Depositor's wire transfer origination details, including the name and address of the originating bank, IBAN or ABA routing number (as applicable), account number, and account name, shall be set forth in a Wire Transfer Instructions Letter to be provided by Brendan Molloy, Chief Financial Officer of Solstice Biomedical Devices Ltd., to Jennifer Hsu, Vice President, Escrow Services, Tidewater Fiduciary Services, Inc., no later than two (2) Business Days following the execution of this Agreement. The Escrow Agent shall be entitled to rely on such Wire Transfer Instructions Letter in verifying the source of incoming wire transfers to the Escrow Account.
ARTICLE III — RELEASE OF ESCROW FUNDS
Section 3.1 — Release of Tranche 1 Deposit
(a) Within three (3) Business Days following the Escrow Agent's receipt and verification of the Tranche 1 Deposit in the Escrow Account, the Escrow Agent shall disburse the Tranche 1 Deposit, together with any and all interest accrued thereon from the date of deposit to the date of release, to the Beneficiary by wire transfer of immediately available funds to the account designated by the Beneficiary in Schedule 1 hereto.
(b) No Joint Written Instructions shall be required for the release of the Tranche 1 Deposit. The Escrow Agent's confirmation of receipt of the Tranche 1 Deposit in the Escrow Account shall serve as the sole and sufficient trigger for the release of the Tranche 1 Deposit to the Beneficiary, unless the Escrow Agent has received a valid stop-payment notice in accordance with Section 3.5 hereof prior to the release.
(c) Upon completion of the disbursement of the Tranche 1 Deposit, the Escrow Agent shall promptly deliver to both the Depositor and the Beneficiary a Release Confirmation Notice substantially in the form attached hereto as Exhibit B, confirming the date of release, the amount released (including principal and accrued interest), the wire reference number, and the remaining balance (if any) of the Escrow Account.
Section 3.2 — Release of Tranche 2 Deposit
(a) Within three (3) Business Days following the Escrow Agent's receipt and verification of the Tranche 2 Deposit in the Escrow Account, the Escrow Agent shall disburse the Tranche 2 Deposit, together with any and all interest accrued thereon from the date of deposit to the date of release, to the Beneficiary by wire transfer of immediately available funds to the account designated by the Beneficiary in Schedule 1 hereto.
(b) No Joint Written Instructions shall be required for the release of the Tranche 2 Deposit. The release of the Tranche 2 Deposit shall follow the same automatic mechanism applicable to the Tranche 1 Deposit as set forth in Section 3.1(b) hereof, unless the Escrow Agent has received a valid stop-payment notice in accordance with Section 3.5 hereof prior to the release.
(c) Upon completion of the disbursement of the Tranche 2 Deposit, the Escrow Agent shall promptly deliver to both the Depositor and the Beneficiary a Release Confirmation Notice substantially in the form attached hereto as Exhibit B, confirming the date of release, the amount released (including principal and accrued interest), the wire reference number, and the remaining balance (if any) of the Escrow Account.
Section 3.3 — Interest Allocation
(a) All interest, earnings, or other income earned on the Escrow Funds while held in the Escrow Account shall be disbursed to the Beneficiary together with the underlying deposit to which such interest, earnings, or other income is attributable. Interest accrued on the Tranche 1 Deposit shall be disbursed to the Beneficiary at the time of the release of the Tranche 1 Deposit, and interest accrued on the Tranche 2 Deposit shall be disbursed to the Beneficiary at the time of the release of the Tranche 2 Deposit.
(b) For all United States federal and applicable state income tax purposes, all interest earned on the Escrow Funds shall be treated as income of the Beneficiary (Apex Surgical Innovations, Inc.) in the taxable year in which such interest is earned. The Escrow Agent shall issue to the Beneficiary the appropriate Internal Revenue Service Form 1099 or other applicable information return reflecting such interest income, as more fully described in Article VII hereof.
Section 3.4 — Disputed Disbursements
(a) If at any time the Escrow Agent receives conflicting instructions or notices from the Depositor and the Beneficiary, or from their respective counsel, regarding the release, disposition, or handling of the Escrow Funds or any portion thereof, the Escrow Agent shall be entitled to refrain from taking any action with respect to the Escrow Funds (other than continuing to hold the Escrow Funds in the Escrow Account) until the Escrow Agent receives either (i) Joint Written Instructions directing the Escrow Agent as to the disposition of the disputed Escrow Funds, or (ii) a final, non-appealable order or judgment of a court of competent jurisdiction directing the disposition of the disputed Escrow Funds.
(b) In the event of any dispute between the Depositor and the Beneficiary concerning the Escrow Funds, the Escrow Agent may, in its sole and absolute discretion, commence an interpleader action and deposit the Escrow Funds, or any disputed portion thereof, with the United States District Court for the District of Delaware or any court of the State of Delaware having competent jurisdiction. Upon such deposit, the Escrow Agent shall be fully and completely released and discharged from any and all further obligations and liabilities under this Agreement with respect to the Escrow Funds so deposited, and the Depositor and the Beneficiary shall jointly and severally bear all costs, fees, and expenses (including reasonable attorneys' fees) incurred by the Escrow Agent in connection with such interpleader action.
Section 3.5 — Stop-Payment Notice
(a) The Depositor may deliver a written stop-payment notice (a "Stop-Payment Notice") to the Escrow Agent only in the event that the Depositor has terminated the Settlement Agreement in accordance with the express termination provisions thereof. Any such Stop-Payment Notice must be accompanied by a written certification from Calderwood & Harkness LLP, counsel to the Depositor, certifying that the Settlement Agreement has been validly terminated in accordance with its terms and specifying the provision of the Settlement Agreement pursuant to which such termination was effected.
(b) Upon the Escrow Agent's receipt of a valid Stop-Payment Notice together with the required legal certification described in Section 3.5(a), the Escrow Agent shall hold the applicable Escrow Funds (to the extent not previously released) in the Escrow Account pending receipt of Joint Written Instructions from the Depositor and the Beneficiary, or a final, non-appealable order of a court of competent jurisdiction, directing the disposition of such Escrow Funds.
(c) The Escrow Agent shall not be required to make any independent investigation or inquiry into the validity or sufficiency of any Stop-Payment Notice or the accompanying legal certification, and shall be entitled to rely conclusively thereon. The Escrow Agent shall promptly deliver a copy of any Stop-Payment Notice and accompanying certification to the Beneficiary upon receipt thereof.
ARTICLE IV — ESCROW AGENT
Section 4.1 — Duties and Responsibilities
(a) The Escrow Agent's duties and responsibilities under this Agreement are purely ministerial in nature and shall be limited strictly and exclusively to those expressly set forth in this Agreement. The Escrow Agent undertakes to perform only such duties as are specifically set forth herein and shall not be bound by or have any obligation with respect to any other agreement or arrangement between the Depositor and the Beneficiary, including without limitation the Settlement Agreement, regardless of whether the Escrow Agent has knowledge of or has received a copy of such agreement or arrangement.
(b) The Escrow Agent shall have no duty to determine or inquire into the occurrence or non-occurrence of any event, condition, or circumstance under the Settlement Agreement or any other agreement, and shall have no duty to verify the accuracy or completeness of any information, notice, instruction, or document delivered to it in connection with this Agreement.
(c) The Escrow Agent may rely upon, and shall not be liable for any action taken or omitted to be taken in reliance upon, the genuineness of any document, instrument, signature, notice, instruction, or other communication believed by it in good faith to be genuine and to have been signed, executed, or delivered by the proper party or parties.
Section 4.2 — Standard of Care
(a) The Escrow Agent shall act in good faith and shall exercise reasonable care in performing its duties under this Agreement. The standard of care applicable to the Escrow Agent hereunder is that of a reasonably prudent escrow agent, taking into account the ministerial nature of the Escrow Agent's duties.
(b) The Escrow Agent shall not be liable for any action taken or omitted in good faith in the performance of its duties hereunder, except for losses, liabilities, or damages directly resulting from the Escrow Agent's own gross negligence, willful misconduct, or fraud. In no event shall the Escrow Agent be liable for any indirect, incidental, consequential, special, or punitive damages of any kind, regardless of the form of action and whether or not such damages were foreseeable.
(c) The Escrow Agent shall not be liable for any delay, failure, or inability to perform its duties hereunder caused by force majeure, including without limitation acts of God, fires, floods, earthquakes, epidemics, pandemics, war, terrorism, strikes, lockouts, governmental actions or orders, interruptions of electrical power, telecommunications, or internet service, or any other cause beyond the Escrow Agent's reasonable control.
Section 4.3 — Reliance on Instructions
(a) The Escrow Agent is hereby authorized to comply with and rely upon any and all written instructions, notices, requests, waivers, consents, receipts, or other documents or communications that the Escrow Agent in good faith believes to be genuine and to have been signed or delivered by an authorized representative of the applicable Party. The Escrow Agent shall have no duty to make any independent investigation or inquiry into the authority of any person purporting to act on behalf of any Party.
(b) The authorized representatives of each Party for purposes of delivering instructions, notices, and other communications to the Escrow Agent under this Agreement are as follows:
(i) For the Depositor (Solstice Biomedical Devices Ltd.):
Eamon Rourke, General Counsel; or Brendan Molloy, Chief Financial Officer
With copies to outside counsel: Marcus Delgado Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801
(ii) For the Beneficiary (Apex Surgical Innovations, Inc.):
Martin Hale, General Counsel; or Dr. Priya Chandrasekaran, Chief intellectual Property Officer
With copies to outside counsel: Victoria Stanton Hargrove, Tate & Bennington LLP 900 North King Street, Suite 1200 Wilmington, Delaware 19801
(c) Each Party may change its authorized representatives by written notice to the Escrow Agent and the other Parties, provided that such notice shall not be effective until actually received by the Escrow Agent.
Section 4.4 — Right to Counsel
The Escrow Agent may, at any time and from time to time, consult with legal counsel of its own choosing (which may be internal or external counsel) in connection with any question or matter arising under or in connection with this Agreement, and the Escrow Agent shall not be liable for any action taken or omitted to be taken in good faith in accordance with the advice of such counsel. The reasonable fees and expenses of such counsel shall be reimbursed by the Depositor in accordance with Section 5.2 hereof.
Section 4.5 — Resignation
(a) The Escrow Agent may resign as escrow agent hereunder at any time by giving not less than thirty (30) days' prior written notice of such resignation to the Depositor and the Beneficiary.
(b) Upon the effectiveness of such resignation, the Escrow Agent shall deliver the Escrow Funds (including all accrued interest thereon) to a successor escrow agent designated by Joint Written Instructions of the Depositor and the Beneficiary. If the Depositor and the Beneficiary fail to designate a successor escrow agent within such thirty (30)-day notice period, the Escrow Agent may, in its sole discretion, (i) continue to hold the Escrow Funds pending receipt of Joint Written Instructions designating a successor escrow agent, or (ii) deposit the Escrow Funds by interpleader into the United States District Court for the District of Delaware or any Delaware state court of competent jurisdiction.
(c) Upon the delivery of the Escrow Funds to a successor escrow agent or the deposit of the Escrow Funds into a court of competent jurisdiction, the resigning Escrow Agent shall be fully and completely released and discharged from any and all further obligations and liabilities under this Agreement with respect to the Escrow Funds so delivered or deposited.
Section 4.6 — Removal
(a) The Escrow Agent may be removed at any time by Joint Written Instructions delivered to the Escrow Agent by both the Depositor and the Beneficiary, with not less than thirty (30) days' prior written notice.
(b) A replacement escrow agent shall be designated by Joint Written Instructions of the Depositor and the Beneficiary. Upon the designation of a replacement escrow agent, the removed Escrow Agent shall promptly deliver the Escrow Funds (including all accrued interest thereon) to such replacement escrow agent.
(c) If no replacement escrow agent is designated within such thirty (30)-day notice period, the provisions of Section 4.5(b) shall apply mutatis mutandis.
ARTICLE V — COMPENSATION AND EXPENSES OF ESCROW AGENT
Section 5.1 — Escrow Agent Fees
The Depositor shall pay all fees and expenses of the Escrow Agent in connection with the Escrow Agent's services under this Agreement, in accordance with the fee schedule attached hereto as Schedule 2. Such fees shall include, without limitation: (a) an initial setup fee, payable upon execution of this Agreement; (b) an annual escrow account maintenance fee (prorated for any partial calendar year during which this Agreement is in effect), payable in advance on the first Business Day of each calendar year (or, in the case of the initial year, upon execution of this Agreement); and (c) a per-transaction wire disbursement fee, payable upon each disbursement of Escrow Funds from the Escrow Account.
Section 5.2 — Expense Reimbursement
In addition to the fees set forth in Section 5.1, the Depositor shall reimburse the Escrow Agent for all reasonable and documented out-of-pocket expenses incurred by the Escrow Agent in connection with the performance of its duties under this Agreement, including, without limitation, reasonable attorneys' fees, court costs, and other legal expenses incurred in connection with any interpleader action, dispute resolution proceeding, or legal consultation pursuant to Section 4.4 hereof. The Escrow Agent shall provide the Depositor with reasonable documentation of any expenses for which reimbursement is sought.
Section 5.3 — Lien
Notwithstanding anything to the contrary contained herein, the Escrow Agent shall have no lien, security interest, or other encumbrance on or against the Escrow Funds for unpaid fees, expenses, or any other amounts owed to the Escrow Agent by the Depositor or any other Party. The Depositor's obligation to pay the Escrow Agent's fees and reimburse the Escrow Agent's expenses is a direct, unconditional obligation of the Depositor, separate and apart from the Escrow Funds, and shall not be satisfied, set off, or otherwise collected from the Escrow Funds held in the Escrow Account.
ARTICLE VI — INDEMNIFICATION
Section 6.1 — Indemnification by the Parties
The Depositor and the Beneficiary, jointly and severally, shall indemnify, defend, and hold harmless the Escrow Agent, and its respective officers, directors, employees, agents, successors, and assigns (each, an "Indemnified Person"), from and against any and all losses, liabilities, damages, claims, judgments, penalties, fines, costs, and expenses (including reasonable attorneys' fees and disbursements) (collectively, "Losses") arising out of, relating to, or in connection with the Escrow Agent's acceptance of appointment as, or performance of its duties as, Escrow Agent under this Agreement, including without limitation Losses arising from the Escrow Agent's compliance with any instructions, notices, or other communications received by it hereunder, except to the extent that such Losses are finally determined by a court of competent jurisdiction in a final, non-appealable judgment to have been caused by the Escrow Agent's own gross negligence, willful misconduct, or fraud.
Section 6.2 — Allocation Between the Parties
As between the Depositor and the Beneficiary (and for the avoidance of doubt, not vis-à-vis the Escrow Agent or any other Indemnified Person), indemnification obligations under Section 6.1 shall be borne equally (fifty percent (50%) by the Depositor and fifty percent (50%) by the Beneficiary), unless the Loss, liability, or claim giving rise to such indemnification obligation arises solely and directly from the act or omission of one Party, in which case that Party shall bear the full indemnification obligation. Nothing in this Section 6.2 shall limit or affect the right of any Indemnified Person to seek and obtain full indemnification from either or both of the Depositor and the Beneficiary on a joint and several basis.
Section 6.3 — Survival
The indemnification obligations set forth in this Article VI shall survive the termination of this Agreement, the disbursement of the Escrow Funds, and the resignation or removal of the Escrow Agent, and shall remain in full force and effect until the expiration of any applicable statute of limitations (including any extensions thereof).
ARTICLE VII — TAX MATTERS
Section 7.1 — Tax Identification Numbers
(a) Within five (5) Business Days following the execution of this Agreement, the Depositor shall provide to the Escrow Agent: (i) a properly completed and executed Internal Revenue Service Form W-8BEN-E (Certificate of Status of Beneficial Owner for United States Tax Withholding and Reporting) for Solstice Biomedical Devices Ltd. (an Irish entity); and (ii) if any wire transfer to the Escrow Account will originate from an account held in the name of Solstice Biomedical, Inc. (EIN: 84-3291056), a properly completed and executed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification) for Solstice Biomedical, Inc.
(b) Within five (5) Business Days following the execution of this Agreement, the Beneficiary shall provide to the Escrow Agent a properly completed and executed Internal Revenue Service Form W-9 for Apex Surgical Innovations, Inc. (EIN: 51-0483762).
(c) Each Party shall promptly provide any updated, revised, or replacement tax forms as may be reasonably requested by the Escrow Agent from time to time.
Section 7.2 — Tax Reporting
(a) The Escrow Agent shall report all interest, earnings, or other income earned on the Escrow Funds while held in the Escrow Account as income of the Beneficiary (Apex Surgical Innovations, Inc.) for United States federal income tax purposes and for applicable state and local income tax purposes.
(b) The Escrow Agent shall prepare and timely file (or cause to be prepared and timely filed) all required Internal Revenue Service Forms 1099 and any other applicable information returns with respect to interest income earned on the Escrow Funds, and shall furnish copies of such forms to the Beneficiary in accordance with applicable Internal Revenue Service rules and deadlines.
Section 7.3 — Tax Withholding
(a) The Escrow Agent shall withhold from the Escrow Funds any amounts required to be withheld under applicable federal, state, or local tax law, including, without limitation, backup withholding under Section 3406 of the Internal Revenue Code of 1986, as amended.
(b) The Parties acknowledge and agree that, based on the nature of the Escrow Funds (which constitute settlement payments from the Depositor to the Beneficiary, and not interest income to the Depositor), the Parties do not anticipate that any withholding will be required upon the release of the principal Escrow Funds to the Beneficiary. Notwithstanding the foregoing, the Escrow Agent shall withhold any amounts that it determines in good faith, or that it is advised by counsel, are required to be withheld under applicable law, and the Escrow Agent shall have no liability to any Party for any amounts so withheld and remitted to the applicable taxing authority.
ARTICLE VIII — REPRESENTATIONS AND WARRANTIES
Section 8.1 — Representations and Warranties of the Depositor
The Depositor hereby represents and warrants to the Beneficiary and the Escrow Agent as follows:
(a) Organization and Good Standing. Solstice Biomedical Devices Ltd. is a private limited company duly organized, validly existing, and in good standing under the laws of Ireland (CRO No. 648217), and has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.
(b) Authorization. The execution, delivery, and performance by the Depositor of this Agreement have been duly authorized by all necessary corporate action on the part of the Depositor, including without limitation all requisite approvals of its board of directors. No further corporate action, consent, or approval is required for the Depositor to execute, deliver, and perform its obligations under this Agreement.
(c) Enforceability. This Agreement constitutes a legal, valid, and binding obligation of the Depositor, enforceable against the Depositor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(d) No Conflicts. The execution, delivery, and performance by the Depositor of this Agreement do not and will not (i) conflict with or violate the Depositor's memorandum or articles of association or other organizational documents, (ii) conflict with or violate any applicable law, rule, regulation, order, judgment, or decree to which the Depositor is subject, or (iii) result in a breach of, or constitute a default under, any material agreement to which the Depositor is a party.
Section 8.2 — Representations and Warranties of the Beneficiary
The Beneficiary hereby represents and warrants to the Depositor and the Escrow Agent as follows:
(a) Organization and Good Standing. Apex Surgical Innovations, Inc. is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware (EIN: 51-0483762), and has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.
(b) Authorization. The execution, delivery, and performance by the Beneficiary of this Agreement have been duly authorized by all necessary corporate action on the part of the Beneficiary, including without limitation all requisite approvals of its board of directors. No further corporate action, consent, or approval is required for the Beneficiary to execute, deliver, and perform its obligations under this Agreement.
(c) Enforceability. This Agreement constitutes a legal, valid, and binding obligation of the Beneficiary, enforceable against the Beneficiary in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(d) No Conflicts. The execution, delivery, and performance by the Beneficiary of this Agreement do not and will not (i) conflict with or violate the Beneficiary's certificate of incorporation, bylaws, or other organizational documents, (ii) conflict with or violate any applicable law, rule, regulation, order, judgment, or decree to which the Beneficiary is subject, or (iii) result in a breach of, or constitute a default under, any material agreement to which the Beneficiary is a party.
Section 8.3 — Representations and Warranties of the Escrow Agent
The Escrow Agent hereby represents and warrants to the Depositor and the Beneficiary as follows:
(a) Organization and Good Standing. Tidewater Fiduciary Services, Inc. is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to act as Escrow Agent and to perform its obligations under this Agreement.
(b) Authorization. The execution, delivery, and performance by the Escrow Agent of this Agreement have been duly authorized by all necessary corporate action on the part of the Escrow Agent.
(c) Authority of Signatory. Jennifer Hsu, Vice President, Escrow Services, is duly authorized to execute and deliver this Agreement on behalf of Tidewater Fiduciary Services, Inc. and to act on its behalf in the administration of the Escrow Account.
(d) Enforceability. This Agreement constitutes a legal, valid, and binding obligation of the Escrow Agent, enforceable against the Escrow Agent in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.
ARTICLE IX — TERM AND TERMINATION
Section 9.1 — Effective Date
This Agreement shall become effective as of the date first written above (June 16, 2025) upon execution and delivery hereof by all three Parties.
Section 9.2 — Termination
(a) This Agreement shall terminate upon the later of: (i) the disbursement by the Escrow Agent of all Escrow Funds (including both the Tranche 1 Deposit and the Tranche 2 Deposit and all accrued interest, earnings, and other income thereon) in accordance with the terms of this Agreement; and (ii) the full satisfaction of all obligations of the Parties hereunder, including without limitation all payment obligations of the Depositor to the Escrow Agent under Article V hereof and all indemnification obligations under Article VI hereof that are then the subject of pending claims.
(b) Notwithstanding the foregoing, the following provisions of this Agreement shall survive the termination of this Agreement and shall remain in full force and effect: Article VI (Indemnification), Article VII (Tax Matters), Section 10.3 (Governing Law), Section 10.4 (Jurisdiction), Section 10.8 (Limitation of Liability), and Section 10.11 (Confidentiality).
Section 9.3 — Effect of Settlement Agreement Termination
If the Settlement Agreement is terminated in accordance with its terms prior to the release of any or all of the Escrow Funds hereunder, the Escrow Agent shall continue to hold the Escrow Funds (to the extent then held in the Escrow Account) pending receipt of (a) Joint Written Instructions from the Depositor and the Beneficiary directing the disposition of such Escrow Funds, or (b) a final, non-appealable order or judgment of a court of competent jurisdiction directing the disposition of such Escrow Funds. The Escrow Agent shall have no duty or obligation to determine whether the Settlement Agreement has been terminated and shall be entitled to rely on any Stop-Payment Notice delivered in accordance with Section 3.5 or any Joint Written Instructions or court order received by it.
ARTICLE X — GENERAL PROVISIONS
Section 10.1 — Notices
All notices, requests, demands, consents, instructions, and other communications required or permitted to be given under this Agreement shall be in writing and shall be delivered by (a) personal delivery, (b) nationally recognized overnight courier service (with proof of delivery), or (c) electronic mail (with confirmation of receipt), addressed as follows:
If to the Depositor:
Eamon Rourke General Counsel Solstice Biomedical Devices Ltd. Unit 14, Clonskeagh Business Park Clonskeagh Road, Dublin 14 D14 YF28, Ireland
Email: erourke@solsticebiomedical.ie
With a copy (which shall not constitute notice) to:
Marcus Delgado Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801
Email: mdelgado@calderwoodharkness.com
If to the Beneficiary:
Martin Hale General Counsel Apex Surgical Innovations, Inc. 1220 North Market Street, Suite 550 Wilmington, Delaware 19801
Email: mhale@apexsurgical.com
With a copy (which shall not constitute notice) to:
Victoria Stanton Hargrove, Tate & Bennington LLP 900 North King Street, Suite 1200 Wilmington, Delaware 19801
Email: vstanton@htblaw.com
If to the Escrow Agent:
Jennifer Hsu Vice President, Escrow Services Tidewater Fiduciary Services, Inc. 300 Delaware Avenue, Suite 1400 Wilmington, Delaware 19801
Email: jhsu@tidewaterfiduciary.com
Any Party may change its notice address by giving written notice of such change to each of the other Parties in accordance with this Section 10.1. Notices delivered by personal delivery or overnight courier shall be deemed effective upon receipt. Notices delivered by electronic mail shall be deemed effective upon the sender's receipt of an electronic confirmation of delivery (whether automatic or manual), provided that if such electronic mail is sent after 5:00 p.m. (Eastern Time) on a Business Day, or on a day that is not a Business Day, such notice shall be deemed effective on the next succeeding Business Day.
Section 10.2 — Amendments and Waivers
(a) This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by all three Parties hereto.
(b) No waiver of any provision of this Agreement, or consent to any departure by any Party from the terms hereof, shall be effective unless such waiver or consent is in writing and signed by the Party or Parties against whom enforcement of such waiver or consent is sought. No waiver of any breach or default shall be deemed a waiver of any subsequent breach or default of the same or any other provision of this Agreement.
Section 10.3 — Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 10.4 — Jurisdiction
(a) Each of the Parties hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the State of Delaware and the United States District Court for the District of Delaware for the purpose of any action, suit, or proceeding arising out of or relating to this Agreement, and each Party irrevocably and unconditionally waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such action, suit, or proceeding, any claim that it is not subject to the jurisdiction of such courts, that such action, suit, or proceeding is brought in an inconvenient forum, or that the venue of such action, suit, or proceeding is improper.
(b) Each Party agrees that a final, non-appealable judgment in any such action, suit, or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Section 10.5 — Entire Agreement
This Agreement, together with the Settlement Agreement, the Schedules and Exhibits hereto, and any written instruments or documents delivered in connection herewith, constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior negotiations, agreements, understandings, representations, and warranties, whether written or oral, with respect to such subject matter.
Section 10.6 — Severability
If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future applicable law, rule, or regulation, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of this Agreement. The remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement. In lieu of any such illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid, and enforceable provision as similar in terms and economic effect to such illegal, invalid, or unenforceable provision as may be possible.
Section 10.7 — Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered by facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, the Uniform Electronic Transactions Act, or any other applicable law), or other electronic transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and shall be valid and effective for all purposes.
Section 10.8 — Limitation of Liability
The Escrow Agent's aggregate liability to the Depositor and the Beneficiary under this Agreement, whether in contract, tort, or otherwise, shall not exceed the total amount of fees actually received by the Escrow Agent under this Agreement; provided, however, that the foregoing limitation shall not apply to Losses arising from the Escrow Agent's gross negligence, willful misconduct, or fraud, as finally determined by a court of competent jurisdiction in a final, non-appealable judgment.
Section 10.9 — Assignment
No Party may assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Parties, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that the Depositor may assign its rights and obligations under this Agreement to a successor entity in connection with a merger, consolidation, reorganization, or change of control of Solstice Biomedical Devices Ltd. or any of its subsidiaries, consistent with the terms of the Settlement Agreement, upon written notice to the Escrow Agent and the Beneficiary. Any purported assignment in violation of this Section 10.9 shall be null and void.