Unassociated Document


    

      EXECUTION
        VERSION


      THE


      BANK
        OF


      NEW

      YORK

      
        

        

      

       

      ESCROW
        AGREEMENT

      


      between

      


      GENTIUM
        S.P.A.,

       

      and

      


      THE
        BANK
        OF NEW YORK

       

      Dated
        as
        of October 14, 2005

      


       

      
 

      ACCOUNT
        NUMBER: 131479

      


      


      SHORT
        TITLE OF ACCOUNT: GENTIUM ESCROW ACCOUNT

      


      


      


      
        

        

      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      


       

      ESCROW
        AGREEMENT
        made
        this 14th day of October, 2005, by and between THE BANK OF NEW YORK ("Escrow
        Agent") and the undersigned (collectively the "Depositors" and each individually
        a "Depositor").

      


      Preliminary
        Statement

       

      WHEREAS,
        the
        Gentium S.p.A., a joint stock company organized under the laws of the Republic
        of Italy ("Gentium"), intends to issue warrants (collectively, the “Warrants”)
        pursuant to a securities subscription agreement (the “Subscription Agreement”)
        to be entered into among Gentium, and each of other investors whose names
        appear
        on the signature page of the Subscription Agreement (collectively, the
        "Investors") and under such Subscription Agreement to sell to the Investors
        certain warrants (the "Warrants") convertible into American Depository Shares
        (the "Warrant Shares") representing Gentium's ordinary shares of common stock;
        

       

      WHEREAS,
        in
        connection with the payment by the Investors for the Warrants, the Investors
        intend to cause funds to be deposited with the Escrow Agent and Gentium intends
        to deposit the Warrants with the Escrow Agent; 

       

      WHEREAS,
        the
        Warrants shall not be effective until Gentium's shareholders vote
        to
        approve Gentium’s
        issuance of the Warrants and/or the Warrant Shares, as applicable, free of
        the
        statutory preemptive rights that would otherwise attach to the
        issuance of those
        securities under Italian law
        or the
        Company's organizational documents ("Shareholder Approval"); and

       

      WHEREAS,
        it is a
        condition precedent to the Subscription Agreement that Gentium, the Investors
        and the Escrow Agent enter into this Agreement.

       

      NOW,
        THEREFORE,
        Depositors and Escrow Agent hereby agree that, in consideration of the mutual
        promises and covenants contained herein, Escrow Agent shall hold in escrow
        and
        shall distribute Escrow Property (as defined herein) in accordance with and
        subject to the following Instructions and Terms and Conditions:

       

      I.
        INSTRUCTIONS:

       

      
        	1.  	
                Escrow
                  Property

              


      

       

      The
        property and/or funds deposited or to be deposited with Escrow Agent by
        Depositors shall be as follows:

      


      Prior
        to
        any deposit, Gentium will notify Escrow Agent in writing 24 hours prior to
        such
        deposit, including by facsimile, that the Escrow Property and Escrow Funds
        are
        ready to be deposited.

      


      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

         

      

      Gentium
        will deliver to the Escrow Agent Warrants for an aggregate of 620,450 Warrant
        Shares, each executed by Gentium and inscribed with name of one of the Investors
        and indicating the amount of Warrant Shares for which such Investor subscribed
        pursuant to the Subscription Agreement, which shall only become effective
        upon
        Shareholder Approval (the “Escrow Warrants”), for prompt deposit into the escrow
        account at The Bank of New York. (Account No. 131479) (the “Escrow Account”) as
“Escrow Property”. The Escrow Property shall be held, administered and disposed
        of by the Escrow Agent in accordance with the terms and conditions hereinafter
        set forth.

      


      Investors
        will deliver to the Escrow Agent $2,187,086.25 in immediately available funds
        (as increased or decreased from time to time in accordance with the provisions
        hereof, the “Escrow Funds”) for prompt deposit into the Escrow Account as the
“Escrow Property”. The Escrow Property shall be held, administered and disposed
        of by the Escrow Agent in accordance with the terms and conditions hereinafter
        set forth.

      


      The
        foregoing property and/or funds, plus all interest, dividends and other
        distributions and payments thereon (collectively the "Distributions") received
        by Escrow Agent, less any property and/or funds distributed or paid in
        accordance with this Escrow Agreement, are collectively referred to herein
        as
        "Escrow Property."

      


      
        	2.  	
                Investment
                  of Escrow Funds
                  Depositors are to select one of the following
                  options:

              


      

       

      
        	 	 	(a)	Escrow
                Agent shall have no obligation to pay interest on or to invest or
                reinvest
                any Escrow Property deposited or received
                hereunder


      

       

      
        	
                 

              	
                
                
X	(b)	Upon
                written directions from Gentium the Escrow Agent shall invest or
                reinvest
                Escrow Funds without distinction between principal and income, in
                the
                following:


      

    

    
       

      
        	
                 

              	
                
                

              	
              	One
                or
                more short-term market instruments including but not limited to marketable
                obligations issued or guaranteed by the U.S. Government, its agencies
                or
                instrumentalities, bank instruments or corporate debt securities
                rated AA
                or higher by S&P that are issued by U.S. or foreign companies ,
                invested in any one or more of the aforementioned types of
                instruments.


      

       

      Escrow
        Agent shall have no liability for any loss arising from or related to any
        such
        investment other than in accordance with paragraph 4 of the Terms and
        Conditions.

      


      
        	
                3.
                   

              	
                Distribution
                  of Escrow Property and Escrow
                  Funds

              


      

      


      
        	 	
                Escrow
                  Agent is directed to hold and distribute the Escrow Property in
                  the
                  following manner:

              


      

      


      Prior
        to
        any distribution of Escrow Funds, to the extent that complete wiring
        instructions are not included for any Depositor who would receive such
        distribution on Schedule
        1
        hereto,
        Gentium will provide Escrow Agent with instructions specifying the account(s)
        into which the Escrow Funds shall be distributed, and wiring instructions
        for
        each such account, including the name of the bank, the ABA number (or SWIFT
        number for non-U.S. accounts), the account number and the account name; prior
        to
        any distribution of Escrow Property, to the extent that a complete address
        is
        not specified for any Depositor who would receive such distribution on
Schedule
        1
        hereto,
        Gentium will provide Escrow Agent with addresses to which the Escrow Property
        should be delivered.

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      If
        the
        Shareholder Approval occurs, then, upon receipt by the Escrow Agent of a
        copy of
        the resolutions effecting the Shareholder Approval certified by an officer
        of
        Gentium and an opinion of Orrick, Herrington & Sutcliffe LLP, or such other
        counsel as is mutually agreeable to the Investors and Gentium, that such
        resolutions were duly adopted,(x) the Escrow Agent take such action as may
        be
        necessary to deliver to each Investor that Warrant addressed to such Investor,
        and (y) the Escrow Agent shall take such action as may be necessary to deliver
        the Escrow Funds released to Gentium.

      


      If
        Gentium submits a copy of the resolutions of a meeting in which the Gentium
        shareholders failed to effect a Shareholder Approval when the matter was
        put to
        a vote of Gentium's shareholders, certified by an officer of Gentium, then
        the
        Escrow Agent shall deliver the Escrowed Funds to the Investors according
        to
        their respective percentages as set forth on Schedule
        1
        hereto
        and the Escrow Agent shall deliver the Escrow Warrants to Gentium.

       

      
        	
                4.
                   

              	
                Addresses

              


      

       

      
        	 	
                Notices,
                  instructions and other communications shall be sent to Escrow Agent,
                  Corporate Trust Administration, 101 Barclay Street-Floor 21W, New
                  York,
                  New York 10286, Attn.: Corporate Trust Administration / Stanislav
                  Pertsev and
                  to Depositors as follows:

              


      

       

      To
        the
        Investors: 

      


      As
        set
        forth on Schedule
        1
        hereto.

      


      To
        Gentium:

      


      Gentium
        S.p.A. 

      ATTN:
        Dr.
        Laura Ferro, 

      Chief
        Executive Officer

      Piazze
        XX
        Septembre, 2

      22079
        Villa Guardia

      Como,
        Italy

      


      With
        a
        copy to (which shall not constitute notice):

      


      Cary
        Grossman

      9821
        Katy
        Freeway, Suite 500

      Houston,
        TX 77024

       

      
        
          	
                  5.
                     

                	
                  Distribution
                    of Escrow Property Upon
                    Termination

                


        

      

       

      
        	 	
                Upon
                  termination of this Escrow Agreement, Escrow Property then held
                  hereunder
                  shall be distributed as follows:

              


      

       

      If
        the
        Shareholder Approval does not occur and Gentium does not deliver to Escrow
        Agent
        a copy of the resolutions effecting the Shareholder Approval certified by
        an
        officer of Gentium and an opinion of Orrick, Herrington & Sutcliffe LLP, or
        such other counsel as is mutually agreeable to the Investors and Gentium,
        that
        such resolutions were duly adopted by April 31, 2006, The Escrow Agent shall
        deliver the Escrowed Funds to the Investors according to their respective
        percentages as set forth on Schedule
        1
        hereto
        and the Escrow Agent shall take such action as may be necessary to deliver
        the
        Escrow Warrants to Gentium.

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

         

      

      
        
          	
                  6.
                     

                	
                  Compensation

                


        

      

      


      
        	 	
                (a)

              	
                As
                  agreed between the Escrow Agent and Gentium in the signed fee schedule
                  dated as of September 28, 2005.

              


      

      


      
        	 	
                (b)

              	
                Gentium
                  shall pay all activity charges as per Escrow Agent’s current fee
                  schedule.

              


      

      


      
        	 	
                (c)

              	
                Gentium
                  shall be responsible for and shall reimburse Escrow Agent upon
                  demand for
                  all expenses, disbursements and advances incurred or made by Escrow
                  Agent
                  in connection with this Agreement.

              


      

       

      
        	
                7.
                   

              	
                Consent
                  for Amendment or Waiver by
                  Depositors

              


      

       

      Any
        requirement under this Agreement for Depositors' consent to waiver or for
        amendment to any part of this Agreement may be satisfied by getting the written
        consent of Gentium and Investors who have made at least Fifty-one Percent
        (51%)
        of the Investors' aggregate deposits hereunder, as reflected on Schedule
        1
        hereto.

       

      II.
        TERMS AND CONDITIONS:

      


      
        	
                1.
                   

              	
                The
                  duties, responsibilities and obligations of Escrow Agent shall
                  be limited
                  to those expressly set forth herein and no duties, responsibilities
                  or
                  obligations shall be inferred or implied. Escrow Agent shall not
                  be
                  subject to, nor required to comply with, any other agreement between
                  or
                  among any or all of the Depositors or to which any Depositor is
                  a party,
                  even though reference thereto may be made herein, or to comply
                  with any
                  direction or instruction (other than those contained herein or
                  delivered
                  in accordance with this Escrow Agreement) from any Depositor or
                  any entity
                  acting on its behalf. Escrow Agent shall not be required to, and
                  shall
                  not, expend or risk any of its own funds or otherwise incur any
                  financial
                  liability in the performance of any of its duties
                  hereunder.

              


      

      


      
        	
                2.
                   

              	
                This
                  Agreement is for the exclusive benefit of the parties hereto and
                  their
                  respective successors hereunder, and shall not be deemed to give,
                  either
                  express or implied, any legal or equitable right, remedy, or claim
                  to any
                  other entity or person whatsoever.

              


      

      


      
        	
                3.
                   

              	
                If
                  at any time Escrow Agent is served with any judicial or administrative
                  order, judgment, decree, writ or other form of judicial or administrative
                  process which in any way affects Escrow Property (including but
                  not
                  limited to orders of attachment or garnishment or other forms of
                  levies or
                  injunctions or stays relating to the transfer of Escrow Property),
                  Escrow
                  Agent is authorized to comply therewith in any manner as it or
                  its legal
                  counsel of its own choosing deems appropriate; and if Escrow Agent
                  complies with any such judicial or administrative order, judgment,
                  decree,
                  writ or other form of judicial or administrative process, Escrow
                  Agent
                  shall not be liable to any of the parties hereto or to any other
                  person or
                  entity even though such order, judgment, decree, writ or process
                  may be
                  subsequently modified or vacated or otherwise determined to have
                  been
                  without legal force or effect.

              


      

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

         

      

      
        	
                4.
                   

              	
                (a)
                  Escrow Agent shall not be liable for any action taken or omitted
                  or for
                  any loss or injury resulting from its actions or its performance
                  or lack
                  of performance of its duties hereunder in the absence of gross
                  negligence
                  or willful misconduct on its part. In no event shall Escrow Agent
                  be
                  liable (i) for acting in accordance with or relying upon any instruction,
                  notice, demand, certificate or document from any Depositor or any
                  entity
                  acting on behalf of any Depositor, (ii) for any consequential,
                  punitive or
                  special damages, (iii) for the acts or omissions of its nominees,
                  correspondents, designees, subagents or subcustodians, or (iv)
                  for an
                  amount in excess of the value of the Escrow Property, valued as
                  of the
                  date of deposit.

              


      

      


      
        	 	
                (b)
                  If any fees, expenses or costs incurred by, or any obligations
                  owed to,
                  Escrow Agent hereunder are not promptly paid when due, Escrow Agent
                  may
                  reimburse itself therefor from the Escrow Property and may sell,
                  convey or
                  otherwise dispose of any Escrow Property for such
                  purpose.

              


      

      


      
        	 	
                (c)
                  As security for the due and punctual performance of any and all
                  of
                  Depositors' obligations to Escrow Agent hereunder, now or hereafter
                  arising, Depositors, individually and collectively, hereby pledge,
                  assign
                  and grant to Escrow Agent a continuing security interest in, and
                  a lien
                  on, the Escrow Property and all Distributions thereon or additions
                  thereto
                  (whether such additions are the result of deposits by Depositors
                  or the
                  investment of Escrow Property). The security interest of Escrow
                  Agent
                  shall at all times be valid, perfected and enforceable by Escrow
                  Agent
                  against Depositors and all third parties in accordance with the
                  terms of
                  this Escrow Agreement.

              


      

      


      
        	 	
                (d)
                  Escrow Agent may consult with legal counsel at the expense of the
                  Depositors as to any matter relating to this Escrow Agreement,
                  and Escrow
                  Agent shall not incur any liability in acting in good faith in
                  accordance
                  with any advice from such counsel.

              


      

      


      
        	 	
                (e)
                  Escrow Agent shall not incur any liability for not performing any
                  act or
                  fulfilling any duty, obligation or responsibility hereunder by
                  reason of
                  any occurrence beyond the control of Escrow Agent (including but
                  not
                  limited to any act or provision of any present or future law or
                  regulation
                  or governmental authority, any act of God or war, or the unavailability
                  of
                  the Federal Reserve Bank wire or telex or other wire or communication
                  facility).

              


      

      


      
        	
                5.
                   

              	
                Unless
                  otherwise specifically set forth herein, Escrow Agent shall proceed
                  as
                  soon as practicable to collect any checks or other collection items
                  at any
                  time deposited hereunder. All such collections shall be subject
                  to Escrow
                  Agent's usual collection practices or terms regarding items received
                  by
                  Escrow Agent for deposit or collection. Escrow Agent shall not
                  be
                  required, or have any duty, to notify anyone of any payment or
                  maturity
                  under the terms of any instrument deposited hereunder, nor to take
                  any
                  legal action to enforce payment of any check, note or security
                  deposited
                  hereunder or to exercise any right or privilege which may be afforded
                  to
                  the holder of any such security.

              


      

      


      
        	
                6.
                   

              	
                Escrow
                  Agent shall provide to Depositors monthly statements identifying
                  transactions, transfers or holdings of Escrow Property and each
                  such
                  statement shall be deemed to be correct and final upon receipt
                  thereof by
                  the Depositors unless Escrow Agent is notified in writing to the
                  contrary
                  within thirty (30) business days of the date of such
                  statement.

              


      

      


      
        	
                7.
                   

              	
                Escrow
                  Agent shall not be responsible in any respect for the form, execution,
                  validity, value or genuineness of documents or securities deposited
                  hereunder, or for any description therein, or for the identity,
                  authority
                  or rights of persons executing or delivering or purporting to execute
                  or
                  deliver any such document, security or
                  endorsement.

              


      

      


      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

         

      

      
        	
                8.
                   

              	
                Notices,
                  instructions or other communications shall be in writing and shall
                  be
                  given to the address set forth in the "Addresses" provision herein
                  (or to
                  such other address as may be substituted therefor by written notification
                  to Escrow Agent or Depositors). Notices to Escrow Agent shall be
                  deemed to
                  be given when actually received by Escrow Agent's Insurance Trust
                  and
                  Escrow Unit of the
                  Corporate Trust Division. Escrow Agent is authorized to comply
                  with and
                  rely upon any notices, instructions or other communications believed
                  by it
                  to have been sent or given by Depositors or by a person or persons
                  authorized by Depositors. Whenever under the terms hereof the time
                  for
                  giving a notice or performing an act falls upon a Saturday, Sunday,
                  or
                  banking holiday, such time shall be extended to the next day on
                  which
                  Escrow Agent is open for business.

              


      

      


      
        	
                9.
                   

              	
                Gentium
                  shall be liable for and shall reimburse and indemnify Escrow Agent
                  and
                  hold Escrow Agent harmless from and against any and all claims,
                  losses,
                  liabilities, costs, damages or expenses (including reasonable attorneys'
                  fees and expenses) (collectively, "Losses") arising from or in
                  connection
                  with or related to this Escrow Agreement or being Escrow Agent
                  hereunder
                  (including but not limited to Losses incurred by Escrow Agent in
                  connection with its successful defense, in whole or in part, of
                  any claim
                  of gross negligence or willful misconduct on its part), provided,
                  however,
                  that nothing contained herein shall require Escrow Agent to be
                  indemnified
                  for Losses caused by its gross negligence or willful
                  misconduct.

              


      

      


      
        	
                10.
                   

              	
                (a)
                  Depositors may remove Escrow Agent at any time by giving to Escrow
                  Agent
                  thirty (30) calendar days' prior notice in writing signed by all
                  Depositors. Escrow Agent may resign at any time by giving to calendar
                  days' prior written notice thereof.

              


      

      


      
        	 	
                (b)
                  Within ten (10) calendar days after giving the foregoing notice
                  of removal
                  to Escrow Agent or receiving the foregoing notice of resignation
                  from
                  Escrow Agent, all Depositors shall jointly agree on and appoint
                  a
                  successor Escrow Agent. If a successor Escrow Agent has not accepted
                  such
                  appointment by the end of such 10-day period, Escrow Agent may,
                  in its
                  sole discretion, deliver the Escrow Property to any of the Depositors
                  at
                  the address provided herein or may apply to a court of competent
                  jurisdiction for the appointment of a successor Escrow Agent or
                  for other
                  appropriate relief. The costs and expenses (including reasonable
                  attorneys' fees and expenses) incurred by Escrow Agent in connection
                  with
                  such proceeding shall be paid by, and be deemed a joint and several
                  obligation of, the Depositors.

              


      

      


      
        	 	
                (c)
                  Upon receipt of the identity of the successor Escrow Agent, Escrow
                  Agent
                  shall either deliver the Escrow Property then held hereunder to
                  the
                  successor Escrow Agent, less Escrow Agent's fees, costs and expenses
                  or
                  other obligations owed to Escrow Agent, or hold such Escrow Property
                  (or
                  any portion thereof), pending distribution, until all such fees,
                  costs and
                  expenses or other obligations are
                  paid.

              


      

      


      
        	 	
                (d)
                  Upon delivery of the Escrow Property to successor Escrow Agent,
                  Escrow
                  Agent shall have no further duties, responsibilities or obligations
                  hereunder.

              


      

      


      
        	
                11.
                   

              	
                (a)
                  In the event of any ambiguity or uncertainty hereunder or in any
                  notice,
                  instruction or other communication received by Escrow Agent hereunder,
                  Escrow Agent may, in its sole discretion, refrain from taking any
                  action
                  other than retain possession of the Escrow Property, unless Escrow
                  Agent
                  receives written instructions, signed by all Depositors, which
                  eliminates
                  such ambiguity or uncertainty.

              


      

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

         

      

      
        	 	
                (b)
                  In the event of any dispute between or conflicting claims by or
                  among the
                  Depositors and/or any other person or entity with respect to any
                  Escrow
                  Property, Escrow Agent shall be entitled, in its sole discretion,
                  to
                  refuse to comply with any and all claims, demands or instructions
                  with
                  respect to such Escrow Property so long as such dispute or conflict
                  shall
                  continue, and Escrow Agent shall not be or become liable in any
                  way to the
                  Depositors for failure or refusal to comply with such conflicting
                  claims,
                  demands or instructions. Escrow Agent shall be entitled to refuse
                  to act
                  until, in its sole discretion, either (i) such conflicting or adverse
                  claims or demands shall have been determined by a final order,
                  judgment or
                  decree of a court of competent jurisdiction, which order, judgment
                  or
                  decree is not subject to appeal, or settled by agreement between
                  the
                  conflicting parties as evidenced in a writing satisfactory to Escrow
                  Agent
                  or (ii) Escrow Agent shall have received security or an indemnity
                  satisfactory to it sufficient to hold it harmless from and against
                  any and
                  all Losses which it may incur by reason of so acting. Escrow Agent
                  may, in
                  addition, elect, in its sole discretion, to commence an interpleader
                  action or seek other judicial relief or orders as it may deem,
                  in its sole
                  discretion, necessary. The costs and expenses (including reasonable
                  attorneys' fees and expenses) incurred in connection with such
                  proceeding
                  shall be paid by, and shall be deemed a joint and several obligation
                  of,
                  the Depositors.

              


      

      


      
        	
                12.
                   

              	
                This
                  Agreement shall be interpreted, construed, enforced and administered
                  in
                  accordance with the internal substantive laws (and not the choice
                  of law
                  rules) of the State of New York. Each of the Depositors hereby
                  submits to
                  the personal jurisdiction of and each agrees that all proceedings
                  relating
                  hereto shall be brought in courts located within the City and State
                  of New
                  York or elsewhere as Escrow Agent may select. Each of the Depositors
                  hereby waives the right to trial by jury and to assert counterclaims
                  in
                  any such proceedings. To the extent that in any jurisdiction any
                  Depositor
                  may be entitled to claim, for itself or its assets, immunity from
                  suit,
                  execution, attachment (whether before or after judgment) or other
                  legal
                  process, each hereby irrevocably agrees not to claim, and hereby
                  waives,
                  such immunity. Each Depositor waives personal service of process
                  and
                  consents to service of process by certified or registered mail,
                  return
                  receipt requested, directed to it at the address last specified
                  for
                  notices hereunder, and such service shall be deemed completed ten
                  (10)
                  calendar days after the same is so
                  mailed.

              


      

      


      
        	
                13.
                   

              	
                Except
                  as otherwise permitted herein, this Escrow Agreement may be modified
                  only
                  by a written amendment signed by all the parties hereto, and no
                  waiver of
                  any provision hereof shall be effective unless expressed in a writing
                  signed by the party to be charged.

              


      

      


      
        	
                14.
                   

              	
                The
                  rights and remedies conferred upon the parties hereto shall be
                  cumulative,
                  and the exercise or waiver of any such right or remedy shall not
                  preclude
                  or inhibit the exercise of any additional rights or remedies. The
                  waiver
                  of any right or remedy hereunder shall not preclude the subsequent
                  exercise of such right or remedy.

              


      

      


      
        	
                15.
                   

              	
                Each
                  Depositor hereby represents and warrants (a) that this Escrow Agreement
                  has been duly authorized, executed and delivered on its behalf
                  and
                  constitutes its legal, valid and binding obligation and (b) that
                  the
                  execution, delivery and performance of this Escrow Agreement by
                  Depositor
                  do not and will not violate any applicable law or
                  regulation.

              


      

      


      
        	
                16.
                   

              	
                The
                  invalidity, illegality or unenforceability of any provision of
                  this
                  Agreement shall in no way affect the validity, legality or enforceability
                  of any other provision; and if any provision is held to be enforceable
                  as
                  a matter of law, the other provisions shall not be affected thereby
                  and
                  shall remain in full force and
                  effect.

              


      

       

      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

         

      

      
        	
                17.
                   

              	
                This
                  Agreement shall constitute the entire agreement of the parties
                  with
                  respect to the subject matter and supersedes all prior oral or
                  written
                  agreements in regard thereto.

              


      

      


      
        	
                18.
                   

              	
                This
                  Agreement shall terminate upon the distribution of all Escrow Property
                  from the Account. The provisions of these Terms and Conditions
                  shall
                  survive termination of this Escrow Agreement and/or the resignation
                  or
                  removal of the Escrow Agent.

              


      

      


      
        	
                19.
                    

              	
                No
                  printed or other material in any language, including prospectuses,
                  notices, reports, and promotional material which mentions "The
                  Bank of New
                  York" by name or the rights, powers, or duties of the Escrow Agent
                  under
                  this Agreement shall be issued by any other parties hereto, or
                  on such
                  party's behalf, without the prior written consent of Escrow
                  Agent.

              


      

      


      
        	
                20.
                   

              	
                The
                  headings contained in this Agreement are for convenience of reference
                  only
                  and shall have no effect on the interpretation or operation
                  hereof.

              


      

      


      
        	
                21.  
                  

              	
                This
                  Escrow Agreement may be executed by each of the parties hereto
                  in any
                  number of counterparts, each of which counterpart, when so executed
                  and
                  delivered, shall be deemed to be an original and all such counterparts
                  shall together constitute one and the same
                  agreement.

              


      

      


      
        	
                22.
                   

              	
                The
                  Escrow Agent does not have any interest in the Escrowed Property
                  deposited
                  hereunder but is serving as escrow holder only and having only
                  possession
                  thereof. Gentium shall pay or reimburse the Escrow Agent upon request
                  for
                  any transfer taxes or other taxes relating to the Escrowed Property
                  incurred in connection herewith and shall indemnify and hold harmless
                  the
                  Escrow Agent any amounts that it is obligated to pay in the way
                  of such
                  taxes. Any payments of income from this Escrow Account shall be
                  subject to
                  withholding regulations then in force with respect to United States
                  taxes.
                  The parties hereto will provide the Escrow Agent with appropriate
                  W-9
                  forms for tax I.D., number certifications, or W-8 forms for non-resident
                  alien certifications. It is understood that the Escrow Agent shall
                  be
                  responsible for income reporting only with respect to income earned
                  on
                  investment of funds which are a part of the Escrowed Property and
                  is not
                  responsible for any other reporting. This paragraph and paragraph
                  (9)
                  shall survive notwithstanding any termination of this Escrow Agreement
                  or
                  the resignation of the Escrow
                  Agent.

              


      

       

      IN
        WITNESS WHEREOF, each of the parties has caused this Escrow Agreement to
        be
        executed by a duly authorized officer as of the day and year first written
        above.

      

        
          	 	 	 
	 	THE
                  BANK OF NEW YORK, as Escrow Agent
	 
 	 
 	 
 
	 	By:  	/s/ 
	 	 	
                  
Name: 
	 	 	Title:
	 	
                


        

      

      
      

      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      

      


      
        
          	 	Depositor: 
	 	 	 
	 	Gentium
                  S.p.A.
	 
 	 
 	 
 
	 	By:  	/s/ Cary
                  Grossman
	
                   

                	
                  
Name: Cary
                  Grossman
	 	
                  Title:
                    Executive Vice President  

                  and
                    Chief Financial
                    Officer

                


        



      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

       

      
        	 	Depositor: 
	 	 	 
	 	Investor:
	 
 	 
 	 
 
	 	 	(Print Name)
	 	 	 
	 	By:  	 
	
                 

              	
                
Name: 
	 	
                Title:
                  

              


      

    

     

    
      


      
        
          
          

        

        
          11

          
            

          

        

        
          
          

        

      

       

      SCHEDULE
        1

      


      
        
          	
                  NAME,
                    CONTACT INFORMATION & WIRING INSTRUCTIONS

                	 	
                   AMOUNT
                    DEPOSITED

                	 	
                   PERCENTAGE
                    OF ESCROW FUNDS

                	 
	
                  BIM
                    - FONDO AZIONARIO GLOBALE

                   

                  JP
                    MORGAN CHASE, NEW YORK CHAUS33 

                  A/C
                    JP MORGAN CHASE LONDON 

                  PS75350
                    DTC 902  ID 62815 AGENT 00902 

                  a/c
                    Sanpaoloimi 

                  ref.
                    Bim SGR. - Fondo Azionario Globale

                	 	
                  $

                	
                  8,460

                	 	 	
                  3.8

                	
                  %

                
	
                  BIM
                    - FONDO AZIONARIO ITALIA

                   

                  JP
                    MORGAN CHASE, NEW YORK CHAUS33 

                  A/C
                    JP MORGAN CHASE LONDON 

                  PS75350
                    DTC 902  ID 62815 AGENT 00902 

                  a/c
                    Sanpaoloimi 

                  ref.
                    Bim SGR. - Fondo Azionario Italia

                	 	
                  $

                	
                  141,000

                	 	 	
                  6.44

                	
                  %

                
	
                  BIM
                    - FONDO AZIONARIO SMALL CAP ITALIA

                   

                  JP
                    MORGAN CHASE, NEW YORK CHAUS33 

                  A/C
                    JP MORGAN CHASE LONDON 

                  PS75350
                    DTC 902  ID 62815 AGENT 00902 

                  a/c
                    Sanpaoloimi 

                  ref.
                    Bim SGR. - Fondo Azionario Small Cap Italia

                	 	
                  $

                	
                  36,003

                	 	 	
                  1.64

                	
                  %

                
	
                  BIM
                    - FONDO BILANCIATO

                   

                  JP
                    MORGAN CHASE, NEW YORK CHAUS33 

                  A/C
                    JP MORGAN CHASE LONDON 

                  PS75350
                    DTC 902  ID 62815 AGENT 00902 

                  a/c
                    Sanpaoloimi 

                  ref.
                    Bim SGR. - Fondo Bilanciato

                	 	
                  $

                	
                  8,460

                	 	 	
                  0.38

                	
                  %

                
	
                  BIM
                    - FONDO FLESSIBILE

                   

                  JP
                    MORGAN CHASE, NEW YORK CHAUS33 

                  A/C
                    JP MORGAN CHASE LONDON 

                  PS75350
                    DTC 902  ID 62815 AGENT 00902 

                  a/c
                    Sanpaoloimi 

                  ref.
                    Bim SGR. - Fondo Flessibile

                	 	
                  $

                	
                  14,100

                	 	 	
                  0.64

                	
                  %

                
	
                  BANCA
                    INTERMOBILIARE DI INVESTIMENTI E GESTIONI S.p.A.

                   

                  CITIBANK
                    N.A., NEW YORK 097696

                  DTC
                    908 INST ID 29424 AGENT BK ID 27603

                  SAN
                    PAOLO BK LUXEMBOURG

                  SPLBLULL

                	 	
                  $

                	
                  21,150

                	 	 	
                  0.96

                	
                  %

                


        

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

        
          	
                  NAME,
                    CONTACT INFORMATION & WIRING INSTRUCTIONS

                	 	
                  AMOUNT
                    

                  DEPOSITED

                	 	
                  PERCENTAGE
                    OF ESCROW FUNDS

                	 
	
                  BIOMEDICAL
                    VALUE FUND, LP

                   

                  [WIRE
                    INSTRUCTIONS TO BE PROVIDED SEPARATELY]

                	 	
                  $

                	
                  750,000

                	 	 	
                  34.29

                	
                  %

                
	
                  BIOMEDICAL
                    OFFSHORE VALUE LTD

                   

                  [WIRE
                    INSTRUCTIONS TO BE PROVIDED SEPARATELY]

                	 	
                  $

                	
                  750,000

                	 	 	
                  34.29

                	
                  %

                
	
                  RA
                    CAPITAL MANAGEMENT, LLC

                   

                  [WIRE
                    INSTRUCTIONS TO BE PROVIDED SEPARATELY]

                	 	
                  $

                	
                  225,081.30

                	 	 	
                  10.29

                	
                  %

                
	
                  CHAUMIERE
                    CONSULTADORIA E SERVICIOS LDA

                   

                  [WIRE
                    INSTRUCTIONS TO BE PROVIDED SEPARATELY]

                	 	
                  $

                	
                  214,850.33

                	 	 	
                  9.82

                	
                  %

                
	
                  GENERATION
                    CAPITAL ASSOCIATES

                   

                  [WIRE
                    INSTRUCTIONS TO BE PROVIDED SEPARATELY]

                	 	
                  $

                	
                  16,369.55

                	 	 	
                  0.74

                	
                  %

                
	
                  RODMAN
                    & RENSHAW LLC

                   

                  [WIRE
                    INSTRUCTIONS TO BE PROVIDED SEPARATELY]

                	 	
                  $

                	
                  1,611.38

                	 	 	
                  0.0736

                	
                  %

                


        

      

      


      
        
          
          

        

        
          2