EXHIBIT 99.1
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Escrow Agreement") is entered into as of
May 22, 2002 by and among Applied Microsystems Corporation, a Washington
corporation ("Acquiror"), Xxxx Xxxxx, as agent and representative of the
stockholders of XXXX (the "XXXX Stockholders' Agent"), Xxxx Xxxx Xxxx &
Freidenrich LLP, as escrow agent (the "Escrow Agent"), and Xxxx Xxxxx, Xxxxxx
Xxxxxxx and Xxxxxx Ring (each, a "XXXX Stockholder" and collectively, the "XXXX
Stockholders").
RECITALS
A. Acquiror, Libra Networks, Inc., a Washington corporation and wholly
owned subsidiary of Acquiror ("Libra"), XXXX, and the XXXX Stockholders have
entered into an Agreement and Plan of Reorganization dated as of May 22, 2002
(the "Merger Agreement"), pursuant to which XXXX and Libra will combine into a
single company through the statutory merger of XXXX with and into Libra (the
"Merger") with Libra surviving the Merger. Capitalized terms used in this Escrow
Agreement and not otherwise defined shall have the meanings given those terms in
the Merger Agreement.
B. Pursuant to Section 2.7 of the Merger Agreement, the XXXX
Stockholders will receive Escrow Shares and Escrow Notes which are to be
deposited into the Escrow Fund. The Merger Agreement provides that the Escrow
Fund will secure the indemnification obligations of the XXXX Stockholders to
Acquiror, Libra, the Surviving Corporation and each of their respective
officers, directors and affiliates under the Merger Agreement, on the terms and
conditions set forth herein.
C. The parties desire to establish the terms and conditions pursuant to
which the Escrow Fund will be established and maintained and the procedure by
which claims for indemnification may be made against the Escrow Fund.
AGREEMENT
The parties to this Escrow Agreement hereby agree as follows:
1. Consent of XXXX Stockholders. By execution of the Merger Agreement,
each XXXX Stockholder has (a) agreed to be bound by the indemnification
obligations set forth in Section 8 of the Merger Agreement, (b) consented to the
establishment of the Escrow Fund to secure the indemnification obligations of
the XXXX Stockholders under Section 8 of the Merger Agreement and (c)
irrevocably authorized and appointed the XXXX Stockholders' Agent, with full
power of substitution and resubstitution, as his or her representative and true
and lawful attorney-in-fact and agent, to act in his or her name, place and
xxxxx as contemplated by Section 8 of the Merger Agreement and this Escrow
Agreement, and to execute in his or her name, and on behalf of such XXXX
Stockholder, this Escrow Agreement and any other agreement, certificate,
instrument and document to be delivered by the XXXX Stockholders pursuant to
Section 8 of the Merger Agreement and this Escrow Agreement.
2. Appointment of Escrow Agent. The Escrow Agent is hereby appointed to
act, and the Escrow Agent agrees to act, as escrow agent under this Escrow
Agreement.
3. Escrow and Indemnification.
(a) Escrow Fund. In addition to the Escrow Shares and the Escrow
Notes, the Escrow Fund shall consist of (i) any Additional Escrow Shares in
accordance with Section 8.1 of the Merger Agreement, which shares shall be
deposited into the Escrow Fund as of the date of such issuance or distribution
and become part of the Escrow Shares, and (ii) during the Escrow Period, any
proceeds resulting from (A) payment or prepayment of interest or principal owing
under the Escrow Notes, and (B) the sale or other disposition of any Escrow
Shares. Exhibit A hereto sets forth the name of each XXXX Stockholder and the
number of Escrow Shares and the principle amount of Escrow Notes contributed to
the Escrow Fund on behalf of each such XXXX Stockholder pursuant to Section 8 of
the Merger Agreement. Exhibit A also sets forth each XXXX Stockholder's
"proportionate interest" in the Escrow Shares and Escrow Notes. Receipt of the
Escrow Fund (including, without limitation, any Additional Escrow Shares) shall
be confirmed by the Escrow Agent as soon as practicable by account statement and
any discrepancies in any such account statement shall be noted by Acquiror and
the XXXX Stockholders to the Escrow Agent within 30 calendar days after receipt
thereof. Failure to inform the Escrow Agent in writing of any discrepancies in
any such account statement within said 30-day period shall conclusively be
deemed confirmation of such account settlement in its entirety. The Escrow Agent
shall have no duty to confirm or verify the sufficiency, appropriateness or
accuracy of the Escrow Fund.
(b) Pledge. At the Effective Time (in the case of the Escrow Shares
issued at the Effective Time) or at the time of issuance (in the case of any
Additional Escrow Shares), the Escrow Shares shall be issued in the name of and
beneficially owned by the XXXX Stockholders, on a pro rata basis according to
each such shareholder's proportionate ownership interest in the total number of
shares of Acquiror Common Stock (as defined in Section 2.6(a) of the Merger
Agreement) issued at the Effective Time (in the case of the Escrow Shares issued
at the Effective Time) or at the time of issuance (in the case of any Additional
Escrow Shares). At the Effective Time (in the case of the Escrow Shares issued
at the Effective Time) or at the time of issuance (in the case of any Additional
Escrow Shares), the XXXX Stockholders shall be deemed to have pledged such
Escrow Shares together with the Escrow Notes to Acquiror and such Escrow Shares
and Escrow Notes shall be delivered to the Escrow Agent, and such Escrow Shares
and Escrow Notes shall be held by the Escrow Agent on Acquiror's behalf in
accordance with the terms and conditions of Section 8 of the Merger Agreement
and this Escrow Agreement. In the case of the Escrow Shares, XXXX shall deliver
to Acquiror appropriate stock powers from the XXXX Stockholders endorsed in
blank and such documentation as Acquiror may reasonably request to carry out the
purposes of this Escrow Agreement. So long as any Escrow Shares or Escrow Notes
are held by the Escrow Agent under this Escrow Agreement, Acquiror shall have,
and the XXXX Stockholders shall be deemed to have granted to Acquiror, effective
as of the Effective Time (in the case of the Escrow Shares issued at the
Effective Time) or at the time of issuance (in the case of any Additional Escrow
Shares), a perfected, first-priority security interest in such shares and notes,
to secure payment of amounts payable by the XXXX Stockholders in respect of
indemnification claims made under Section 8 of the Merger Agreement and this
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Escrow Agreement. The Escrow Fund shall not be subject to any lien, attachment,
trustee process or any other judicial process of any creditor of any party to
this Escrow Agreement.
(c) Indemnification. In accordance with the terms and conditions of
Section 8 of the Merger Agreement, Escrow Shares and Escrow Notes will be
security for indemnity obligations of the XXXX Stockholders under the Merger
Agreement.
4. Administration of Escrow Fund. The Escrow Agent shall administer the
Escrow Fund as follows:
(a) Escrow Agent. The Escrow Agent agrees to accept delivery of the
Escrow Shares and Escrow Notes and to hold such escrow Shares and Escrow Notes
in escrow subject to the terms and conditions of this Agreement and Sections 2
and 8 of the Merger Agreement (which Section 8 is attached to this Agreement as
Appendix A) (collectively, the "Escrow Provisions"), until the Escrow Agent is
required to release such Escrow Shares and Escrow Notes pursuant to the terms of
this Agreement. The Escrow Agent shall have no responsibility for the
calculation or sufficiency of the Escrow Shares or Escrow Notes.
(b) Claims Upon Escrow Fund. Upon receipt by the Escrow Agent on or
before the Release Date of an Officer's Certificate stating that Damages exist
giving rise to indemnification rights under the Merger Agreement, the Escrow
Agent shall, subject to the provisions of this Section 4, deliver to Acquiror
out of the Escrow Fund, as promptly as practicable, Acquiror Common Stock or
other assets held in the Escrow Fund having a value equal to such Damages. For
the purpose of compensating Acquiror for its Damages pursuant to the Merger
Agreement, the Escrow Shares shall be valued at the average of the closing
prices of Acquiror's common stock as reported on the Nasdaq National Market (or
other exchange or quotation service) during the twenty trading days ending one
day prior to the date of receipt by the Escrow Agent of an Officer's
Certificate; provided, however, that such value shall not be less than fifty
percent of the Average Closing Price.
(i) If any Escrow Shares or Escrow Notes are retained by the
Escrow Agent or transferred to Acquiror pursuant to any provisions of this
Section 4, such Escrow Shares shall be taken from the Escrow Fund in accordance
with each XXXX Stockholder's "proportionate interest" in such Escrow Shares or
Escrow Notes (as set forth in Exhibit A hereto).
(ii) Notwithstanding the foregoing, in the event that an
Acquiror Indemnified Person has made a claim for Damages under Section 8.2(a) on
or prior to the Termination Date or that such person has made a claim for
Damages under Section 8.2(a) that has not been resolved by the Termination Date,
Acquiror shall deliver to both the XXXX Stockholders' Agent and the Escrow Agent
an Officer's Certificate setting forth a good faith reasonable estimate of
Damages related to such claim, in accordance with the provisions of this
subsection (b) and subsection (c). That number of Escrow Shares, principal
amount of Escrow Notes or other assets in the Escrow Fund that, in the
reasonable judgment of Acquiror, subject to the objection of the XXXX
Stockholders' Agent and the subsequent arbitration of the claim in accordance
with Section 4(d) of this Escrow Agreement, would be necessary to satisfy a
claim for indemnification with respect to such claimed Damages, if the Acquiror
Indemnified Person
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were to prevail in establishing its right to indemnification, shall remain in
the Escrow Fund until such claim for indemnification shall have been resolved.
(c) Uncontested Claim. At the time of delivery of any Officer's
Certificate to the Escrow Agent, Acquiror shall deliver a duplicate copy of such
Officer's Certificate to the XXXX Stockholders' Agent pursuant to the terms of
Section 8 of the Merger Agreement. For a period of thirty (30) days after such
delivery, the Escrow Agent shall make no delivery of Escrow Shares or Escrow
Notes unless the Escrow Agent shall have received written authorization from the
XXXX Stockholders' Agent to make such delivery. In the event the XXXX
Stockholders' Agent does not deliver to the Escrow Agent a written objection to
any claim or claims made in the Officer's Certificate within such thirty (30)
day period, the Escrow Agent shall make delivery to Acquiror of the uncontested
Escrow Shares or Escrow Notes pursuant to the terms of Section 8 of the Merger
Agreement.
(d) Contested Claim. In the event that the XXXX Stockholders'
Agent delivers written objection to any claim or claims made in the Officer's
Certificate to Acquiror and the Escrow Agent, Acquiror shall have thirty (30)
days to respond in a written statement to the objection of the XXXX
Stockholders' Agent. If after such thirty (30) day period there remains a
dispute as to any claims, the XXXX Stockholders' Agent and Acquiror shall
attempt in good faith for sixty (60) days to agree upon the rights of the
respective parties with respect to each of such claims. If the XXXX
Stockholders' Agent and Acquiror should so agree, a memorandum setting forth
such agreement shall be prepared and signed by both parties and shall be
furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any
such memorandum and shall distribute the Escrow Shares and Escrow Notes or other
property from the Escrow Fund in accordance with the terms thereof. If no
agreement can be reached after good faith negotiation between the parties, then
the matter will be settled by binding arbitration pursuant to the terms of
Section 8.6 of the Merger Agreement. Any portion of the claim made in the
Officer's Certificate which is not contested shall be disbursed in accordance
with Section 4(c) of this Escrow Agreement. Pursuant to the terms of Section 8.6
of the Merger Agreement, the final decision of the arbitrator shall be furnished
in writing to the Escrow Agent, and the Escrow Agent shall be entitled to make
or withhold payments out of the Escrow Fund in accordance therewith.
(e) Payment of Claims in Cash. Any XXXX Stockholder may elect to
pay its "proportionate interest" of any claim for indemnification made in an
Officer's Certificate in cash in lieu of Escrow Shares or Escrow Notes by
delivering a written notice to Acquiror and the Escrow Agent, together with a
certified or cashier's check in the amount of its "proportionate interest" of
such claim paid to the order of the Acquiror Indemnified Person, no later than
thirty (30) days after receipt of the Officer's Certificate by the XXXX
Stockholders' Agent and the Escrow Agent. Upon such payment, a corresponding
amount of such Escrow Shares or Escrow Notes will be disbursed by the Escrow
Agent to such XXXX Stockholder.
5. Release of Escrow Fund. Acquiror agrees to notify the Escrow Agent in
writing of the expiration of the Escrow Period. Subject to the provisions of
this Section 5, the Escrow Fund shall remain in existence during the Escrow
Period. Upon the expiration of the Escrow Period, the Escrow Fund shall
terminate with respect to all Escrow Shares and Escrow Notes then remaining in
the Escrow Fund and the Escrow Agent shall deliver all such Escrow Shares
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and Escrow Notes to the XXXX Stockholders; provided, however, that the number of
Escrow Shares and Escrow Notes that, in the reasonable judgment of Acquiror,
subject to the objection of the XXXX Stockholders' Agent and the subsequent
negotiation and arbitration of the matter in accordance with Section 4 hereof,
is necessary to satisfy any unsatisfied claim for Damages specified in any
Officer's Certificate delivered to the Escrow Agent as specified in Section 4
hereof prior to the Termination Date shall remain in the Escrow Fund (and the
Escrow Fund shall remain in existence) until such claims have been resolved. As
soon as all such claims have been resolved, the Escrow Agent shall deliver to
the XXXX Stockholders all Escrow Shares and Escrow Notes then remaining in the
Escrow Fund and not required to satisfy such claims. Deliveries of Escrow Shares
and Escrow Notes and other property to the XXXX Stockholders pursuant to this
Section 5 shall be made in accordance with Section 8 of the Merger Agreement.
6. XXXX Stockholders' Agent.
(a) No bond shall be required of the XXXX Stockholders' Agent, and
the XXXX Stockholders' Agent shall not receive compensation for his services.
Notices or communications to or from the XXXX Stockholders' Agent shall
constitute notice to or from each of the XXXX Stockholders. The XXXX
Stockholders' Agent shall be entitled to submit a claim and receive
reimbursement from the Escrow Fund for all reasonable, documented out-of-pocket
expenses incurred as a result of acting as the XXXX Stockholders' Agent;
provided, however, that such right to reimbursement shall be subordinate to
Acquiror's claims on the Escrow Fund, if any, and shall be paid only at the end
of the Escrow Period, after such claims have been satisfied.
(b) A decision, act, consent or instruction of the XXXX
Stockholders' Agent shall constitute a decision of all XXXX Stockholders and
shall be final, binding and conclusive upon each XXXX Stockholder and each
Acquiror Indemnified Person, and all such persons may rely upon any such
decision, act, consent or instruction of the XXXX Stockholders' Agent as being
the decision, act, consent or instruction of each and every XXXX Stockholder.
The Acquiror Indemnified Persons and any other persons are hereby relieved from
any liability to any person for any acts done by them in accordance with such
decision, act, consent or instruction of the XXXX Stockholders' Agent.
(c) The XXXX Stockholders' Agent may resign at any time. Upon such
resignation, the XXXX Stockholders' Agent shall appoint a new XXXX Stockholders'
Agent to replace such resigning XXXX Stockholders' Agent with the same powers
and duties as such resigning XXXX Stockholders' Agent.
7. Distributions; Voting.
(a) Any Additional Escrow Shares shall be added to the Escrow Fund
and become a part of the Escrow Shares. When and if cash dividends on Escrow
Shares in the Escrow Fund shall be declared and paid, they shall be distributed
to the beneficial owners of such shares on the applicable distribution date.
Such dividends will become part of the Escrow Fund and will be available to
satisfy Damages. The beneficial owners of such shares shall pay any taxes on
such dividends.
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(b) Each XXXX Stockholder shall possess voting rights with respect
to that number of Escrow Shares issued to and deposited in the Escrow Fund on
behalf of such XXXX Stockholder (and on any voting securities added to the
Escrow Fund with respect to such shares including, without limitation, any
Additional Escrow Shares), so long as such shares or other voting securities are
held in the Escrow Fund. Acquiror shall promptly deliver to the Escrow Agent,
and the Escrow Agent shall promptly deliver to the XXXX Stockholders, copies of
all proxy solicitation materials.
8. Duties of Escrow Agent.
(a) Acquiror and the XXXX Stockholders' Agent acknowledge and agree
that the Escrow Agent (i) shall be obligated only for the performance of such
duties as are specifically set forth in this Escrow Agreement with respect to
the Escrow Agent (and no implied obligations) and as set forth in any additional
written escrow instructions as the Escrow Agent may receive after the date of
this Escrow Agreement that are signed by an officer of Acquiror and the XXXX
Stockholders' Agent and in form and substance reasonably acceptable to the
Escrow Agent; (ii) shall not be obligated to take any legal or other action
under this Escrow Agreement that would, in its reasonable judgment, result in a
material expense or liability unless the Escrow Agent shall have been furnished
with indemnity acceptable to it; (iii) shall not be responsible for any of the
agreements referred to herein or in the Merger Agreement, and (iv) may rely on
and shall be protected in acting or refraining from acting upon any written
notice, instruction, instrument, statement, request or document furnished to it
under this Escrow Agreement and reasonably believed by it to be genuine and to
have been signed or presented by the proper person, and shall have no
responsibility for determining the accuracy thereof.
(b) The Escrow Agent is hereby expressly authorized to comply with
and obey any order, judgment or decree of any court of competent jurisdiction or
a written decision of arbitrators. If the Escrow Agent shall obey or comply with
any such order, judgment or decree or written decision of arbitrators, the
Escrow Agent shall not be liable to any of the parties to this Escrow Agreement
or to any other person by reason of such compliance, notwithstanding any such
order, judgment, decree or written decision being subsequently reversed,
modified, annulled, set aside, vacated or found to have been entered without
jurisdiction.
(c) The Escrow Agent shall not be liable in any respect on account
of the identity, authority or rights of the parties executing or delivering or
purporting to execute or deliver this Escrow Agreement or any documents or
papers deposited or called for under this Escrow Agreement.
(d) The Escrow Agent shall not be liable for the expiration of any
rights under any statute of limitations with respect to this Escrow Agreement or
any documents deposited with the Escrow Agent.
(e) Neither the Escrow Agent nor any of its partners, employees,
agents or affiliates shall be liable to anyone for any action taken, suffered or
omitted to be taken by it or any of its partners, employees, agents or
affiliates under this Escrow Agreement except in the case of gross negligence,
bad faith or willful misconduct (each as finally determined by a court of
competent jurisdiction or as agreed to by the parties). Anything to the contrary
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notwithstanding, in no event shall the Escrow Agent be liable for special,
punitive, indirect, consequential or incidental loss or damage of any kind
whatsoever (including, but not limited to, lost profits), even if the Escrow
Agent has been advised of the likelihood of such loss or damage. Any liability
of the Escrow Agent under this Escrow Agreement shall be limited to the amount
of fees paid to the Escrow Agent under this Agreement. The XXXX Stockholders
(collectively, the "Escrow Indemnifying Parties") covenant and agree to jointly
and severally indemnify the Escrow Agent and hold it harmless from and against
any fee, loss, claim, cost, penalty, fine, settlement, damages, liability or
expense (including reasonable attorney's fees and expenses) (an "Escrow Loss")
incurred by the Escrow Agent arising out of or in connection with this Escrow
Agreement, including but not limited to, the execution and delivery of this
Escrow Agreement, the Escrow Agent's performance of its obligations in
accordance with the provisions of this Escrow Agreement or with the
administration of its duties under this Escrow Agreement, unless such Escrow
Loss shall arise out of or be caused by the Escrow Agent's gross negligence, bad
faith or willful misconduct (each as finally determined by a court of competent
jurisdiction or as agreed to by the parties).
(f) The Escrow Indemnifying Parties agree to jointly and severally
indemnify and hold the Escrow Agent harmless from and against any taxes,
additions for late payment, interest, penalties and other expenses, that may be
assessed against the Escrow Agent on any payment or other activities under this
Escrow Agreement unless any such tax, addition for late payment, interest,
penalty or other expense shall arise out of or be caused by the gross
negligence, bad faith or willful misconduct of the Escrow Agent (each as finally
determined by a court of competent jurisdiction or as agreed to by the parties).
To the extent that the Escrow Agent becomes liable for any of the foregoing, the
Escrow Agent may, but shall not be obligated to, satisfy such liability from the
Escrow Shares or Escrow Notes remaining in the Escrow Fund, and the XXXX
Stockholders shall be deemed to have granted to the Escrow Agent at the Closing,
effective as of the Effective Time or at the time of issuance, as the case may
be, a perfected, first-priority security interest in the Escrow Shares and
Escrow Notes to secure payment of such taxes.
(g) The Escrow Agent may resign at any time with at least 30 days'
prior written notice to Acquiror and the XXXX Stockholders' Agent.
(h) The Escrow Agent shall be under no duty to institute or defend
any proceeding. In the event of any dispute between the parties to this Escrow
Agreement, or between any of them and any other person, resulting in adverse
claims or demands being made upon any of the Escrow Funds, or in the event that
the Escrow Agent, in good faith, is in doubt as to what action it should take
under this Escrow Agreement, the Escrow Agent may, at its option, file a suit as
interpleader in a court of appropriate jurisdiction, or refuse to comply with
any claims or demands on it, or refuse to take any other action under this
Agreement, so long as such dispute shall continue or such doubt shall exist. The
Escrow Agent shall be entitled to continue so to refrain from acting until (i)
the rights of all parties have been fully and finally adjudicated by a court of
appropriate jurisdiction or (ii) all differences and doubt shall have been
resolved by agreement among all of the interested persons, and the Escrow Agent
shall have been notified thereof in writing signed by all such persons. The
rights of the Escrow Agent under this Section 8 are cumulative of all other
rights which it may have by law, in equity or otherwise.
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(i) The XXXX Stockholders and the XXXX Stockholders' Agent
acknowledge and agree that the Escrow Agent is legal counsel to Acquiror. In the
event of a dispute in respect of the Escrow Fund or this Escrow Agreement, Xxxx
Xxxx Xxxx & Freidenrich LLP ("Xxxx Xxxx") shall have the right to continue to
represent Acquiror. All parties hereto hereby waive any conflict of interest
associated with Xxxx Xxxx'x continued representation of Acquiror with respect to
any dispute.
9. Incorporation by Reference of Section 8. The parties agree that the
terms of Section 8 of the Merger Agreement shall be deemed to be incorporated by
reference in this Agreement as if such Section had been set forth in its
entirety herein except that, to the extent that there is a conflict between such
Section 8 and this Agreement, the provisions of this Agreement shall control the
responsibilities and obligations of the Escrow Agent.
10. Expenses and Taxes. The Escrow Agent shall be entitled to
reimbursement from Acquiror upon 30 days' written notice for all expenses and
disbursements incurred in connection with this Escrow Agreement, and payment of
any legal fees and expenses incurred by the Escrow Agent in connection with the
resolution of any claim by any party under this Escrow Agreement. Taxes incurred
with respect to the earnings of the Escrow Fund and payments made under this
Escrow Agreement shall be paid by the party to whom such earnings are
distributed (or to be distributed) or to whom such payment is made.
11. Miscellaneous.
(a) Entire Agreement; Nonassignability; Parties in Interest. This
Escrow Agreement and the documents and instruments and other agreements
specifically referred to herein or delivered pursuant hereto, including the
exhibits hereto, (a) together constitute the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof; and (b) are not intended to confer upon any other person
any rights or remedies hereunder, and shall not be assigned by operation of law
or otherwise without the written consent of the other party.
(b) Severability. In the event that any provision of this Agreement,
or the application thereof becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this Escrow
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Escrow Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
(c) Further Assurances. The parties agree (i) to furnish upon
request to each other such further information, (ii) to execute and deliver to
each other such other documents and (iii) to do such other acts and things, all
as the other party may reasonably request for the purpose of carrying out the
intent of this Escrow Agreement and the documents referred to in this Escrow
Agreement.
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(d) Governing Law. This Escrow Agreement shall be governed by and
construed in accordance with the internal laws of Washington applicable to
parties residing in Washington, without regard applicable principles of
conflicts of law. Each of the parties hereto irrevocably consents to the
exclusive jurisdiction of any court located within King County, Washington, in
connection with any matter based upon or arising out of this Escrow Agreement or
the matters contemplated hereby and it agrees that process may be served upon it
in any manner authorized by the laws of the State of Washington for such persons
and waives and covenants not to assert or plead any objection which it might
otherwise have to such jurisdiction and such process.
(e) Rules of Construction. The parties hereto agree that they have
been represented by counsel during the negotiation, preparation and execution of
this Escrow Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party drafting such
agreement or document.
(f) Amendment; Waiver. Any amendment or waiver of any of the terms
or conditions of this Escrow Agreement must be in writing and must be duly
executed by or on behalf of the party to be charged with such waiver. The
failure of a party to exercise any of its rights hereunder or to insist upon
strict adherence to any term or condition hereof on any one occasion shall not
be construed as a waiver or deprive that party of the right thereafter to insist
upon strict adherence to the terms and conditions of this Escrow Agreement at a
later date. Further, no waiver of any of the terms and conditions of this Escrow
Agreement shall be deemed to or shall constitute a waiver of any other term of
condition hereof (whether or not similar).
(g) Notices. Any notice required or permitted by this Escrow
Agreement shall be in writing and shall be deemed sufficient upon receipt, when
delivered personally or by courier, overnight delivery service or confirmed
facsimile, or three days after being deposited in the regular mail as certified
or registered mail (airmail if sent internationally) with postage prepaid, if
such notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by written
notice.
If to Acquiror:
Applied Microsystems Corporation
0000 000xx Xxxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Attention: President
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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with a copy to:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Steel
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the XXXX Stockholders' Agent:
XXXX Technologies, Inc.
000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Escrow Agent:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Steel
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(h) Counterparts. This Escrow Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
[Signature Page Follows]
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In witness whereof, the parties have executed this Escrow Agreement as
of the date first above written.
APPLIED MICROSYSTEMS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Its: President and Chief Executive Officer
XXXX STOCKHOLDERS' AGENT
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
XXXX XXXX XXXX & FREIDENRICH, LLP
as Escrow Agent
By: /s/ Xxxx X. Steel
--------------------------------------
Name: Xxxx X. Steel
Its: Partner
XXXX STOCKHOLDERS:
/s/ Xxxx Xxxxx
------------------------------------------
Xxxx Xxxxx
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxxx Ring
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Xxxxxx Ring