Exhibit 14
ESCROW AGREEMENT
This Escrow Agreement is entered into as of October 27, 2004, by and
among BCI Ventures, Inc., a British Columbia corporation, Trian Equities Ltd.,
a British Columbia corporation, West Steag Partners GmbH, a German limited
liability company, Lake Street Capital Fund I, L.P., a Delaware limited
partnership (collectively, the "Supporting Parties"), Xxxxxxx Technology,
Inc., a Delaware corporation ("Mattson"), and U.S. Bank, National Association,
a national banking association, as escrow agent (the "Escrow Agent"). Xxxxxxx,
the Supporting Parties and the Escrow Agent are referred to individually
herein as a "Party" and are referred to collectively herein as the "Parties".
WHEREAS, Xxxxxxx and the Supporting Parties are parties to a Support
Agreement dated as of June 28, 2004 (the "Support Agreement"), in connection
with the transactions contemplated by the Arrangement Agreement, dated as of
the same date, between Mattson and Vortek Industries Ltd.; and
WHEREAS, the Support Agreement provides that an escrow account will
be established to secure the indemnification obligations of the Supporting
Parties pursuant to the terms of the Support Agreement; and
WHEREAS, the Parties desire to establish the terms and conditions
pursuant to which such escrow account will be established and maintained.
NOW, THEREFORE, the Parties hereby agree as follows:
1. Appointment. Xxxxxxx and each of the Supporting Parties hereby
appoint the Escrow Agent as the escrow agent for the purposes set forth
herein, and the Escrow Agent hereby accepts such appointment under the terms
and conditions set forth herein.
2. Designation of Supporting Parties Agent. Each of the Supporting
Parties hereby appoints Trian Equities Ltd. to act as the Supporting Parties
Agent for the purpose of this Agreement. Xxxxxxx and the Escrow Agent shall be
entitled to rely upon any communication or writing given or executed by the
Supporting Parties Agent. All communications or writings to be sent to the
Supporting Parties by Xxxxxxx or the Escrow Agent pursuant to this Agreement
shall be addressed to the Supporting Parties Agent and the other Supporting
Parties. Notwithstanding the foregoing, all notices, instructions and other
writings and communications relating to a Section 5.2 Claim (as defined in
Section 4 below) may be addressed only to the individual Supporting Party to
which such Section 5.2 Claim relates and Xxxxxxx and the Escrow Agent may not
rely on writings or communications by the Supporting Parties Agent with
respect to such Section 5.2 Claim (unless, and only to the extent, such
Section 5.2 Claim applies to the Supporting Parties Agent in its capacity as a
Supporting Party).
3. Establishment of Escrow Account and Interests Therein.
(a) In accordance with the terms of the Arrangement Agreement and the
Support Agreement, concurrently with the execution of this Agreement, Xxxxxxx
is depositing with its transfer agent irrevocable instructions to deliver to
the Escrow Agent a share certificate representing 290,561 shares of common
stock, $0.001 par value, of Xxxxxxx (the "Escrow Shares") to be held by the
Escrow Agent in a separate account to be established pursuant to this
Agreement (the "Escrow Account"). The Escrow Agent will accept delivery of the
Escrow Shares for deposit into the Escrow Account. The certificate (and any
replacement certificates to be held in the Escrow Account) representing the
Escrow Shares shall be registered in the name of U.S. Bank, National
Association and shall bear a restrictive legend providing that the shares
represented by such certificate(s) are subject to, and may not be offered,
sold, exchanged, transferred or otherwise disposed of except pursuant to the
terms of this Agreement. The Escrow Agent shall hold and safeguard the Escrow
Shares (and, together with all property at any time received or otherwise
distributed on, in respect of or in exchange for any of the Escrow Shares,
including, without limitation, all securities hereafter issued in substitution
for any of the Escrow Shares, all certificates and instruments representing or
evidencing such securities, all cash and non-cash proceeds of all of the
foregoing property (including stock dividends) and all rights, titles,
interest, privileges and preferences appertaining or incident to the foregoing
property, the "Escrow Fund") and shall disburse the Escrow Fund only in
accordance with the terms of this 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.
(b) The Escrow Agent will maintain a separate spreadsheet accounting
for the interest of each Supporting Party in the Escrow Fund (the "Supporting
Parties' Interests"), it being agreed that the Escrow Agent shall not be
required to open separate trust accounts for each Supporting Party. The
initial amounts of the Supporting Party's Interests are set forth on Schedule
I hereto and are based on each Supporting Party's proportionate interest in
the Escrow Fund (the "Applicable Percentage"). Promptly, and in any event
within 30 days following any distribution of any portion of the Escrow Fund
pursuant to Section 4 of this Agreement, the Escrow Agent will provide the
Supporting Parties Agent with a copy of the spreadsheet accounting showing the
remaining balance of each Supporting Party's Interest.
4. Administration of Escrow Account. The Escrow Agent shall
administer the Escrow Account as follows:
(a) In the event Xxxxxxx delivers a Claim Notice (as defined in the
Support Agreement), it shall specify in such Claim Notice whether such claim
for indemnification (a "Claim") is pursuant to Section 5.1 of the Support
Agreement (a "Section 5.1 Claim") or pursuant to Section 5.2 of the Support
Agreement (a "Section 5.2 Claim"). Concurrently with its delivery of such
Claim Notice, Xxxxxxx shall deliver copies of such Claim Notice to the Escrow
Agent and (x) to the Supporting Parties Agent and to the other Supporting
Parties if the Claim Notice relates to a Section 5.1 Claim and (y) to the
relevant Supporting Party if the Claim Notice relates to a Section 5.2 Claim.
Under no circumstances may Xxxxxxx deliver a Claim Notice after the Release
Date (as defined in Section 5 below).
(b) The following provisions shall apply with respect to a Claim
Notice relating to a Section 5.1 Claim:
(i) Within 60 calendar days after a Claim Notice relating to
a Section 5.1 Claim is received by the Supporting Parties Agent and the other
Supporting Parties, the Supporting Parties Agent shall provide to Xxxxxxx,
with a copy to the Escrow Agent, a written response (the "5.1 Response") which
notice shall either: (x) state that an amount of the Escrow Fund equal in
value to the full Section 5.1 Claim may be released from the Escrow Account to
Xxxxxxx, (y) state that an amount of the Escrow Fund equal in value to part,
but not all, of the Section 5.1 Claim (the "5.1 Agreed Amount") may be
released from the Escrow Account to Xxxxxxx, in which case the 5.1 Response
shall state the rationale for contesting part of the Section 5.1 Claim, or (z)
state that no portion of the Escrow Fund may be released from the Escrow
Account to Xxxxxxx, and the 5.1 Response shall state the rationale for
contesting the entire Section 5.1 Claim.
(ii) If the 5.1 Response states that all or a portion of the
Escrow Fund in an amount equal to the full amount of the Section 5.1 Claim may
be released from the Escrow Account to Xxxxxxx or the Supporting Parties Agent
does not deliver a 5.1 Response within such 60 calendar days of receipt by the
Supporting Parties Agent and the other Supporting Parties of the Claim Notice
asserting the Section 5.1 Claim, the Escrow Agent shall, following the earlier
of (x) the Escrow Agent's receipt of the 5.1 Response, or (y) the expiration
of the 60 calendar day period without a 5.1 Response, disburse to Xxxxxxx an
amount of the Escrow Fund equal to the Section 5.1 Claim (or such lesser
amount of the Escrow Fund as is then held in the Escrow Account) in accordance
with the provisions of Section 4(e).
(iii) If the 5.1 Response states that all or a portion of
the Escrow Fund in an amount equal to part, but not all, of the Section 5.1
Claim may be released from the Escrow Account to Xxxxxxx, the Escrow Agent
shall disburse to Xxxxxxx an amount of the Escrow Fund equal to the 5.1 Agreed
Amount (or such lesser amount of the Escrow Fund as is then held in the Escrow
Account) in accordance with the provisions of Section 4(e).
(iv) If the 5.1 Response contests the full amount of the
Section 5.1 Claim (the "5.1 Contested Amount"), then the Escrow Agent shall
continue to hold in the Escrow Account an amount of the Escrow Fund sufficient
to cover the 5.1 Contested Amount (up to the amount of the Escrow Fund then
available in the Escrow Account) until the Escrow Agent receives either (x) a
settlement agreement or written instruction executed by Xxxxxxx and the
Supporting Parties Agent setting forth instructions to the Escrow Agent as to
the release to Xxxxxxx of all or a portion of the Escrow Fund, if any, with
respect to the 5.1 Contested Amount or (y) a certified copy of a final,
non-appealable order of a court of competent jurisdiction ordering the Escrow
Agent to release to Xxxxxxx all or a portion of the Escrow Fund, if any, with
respect to the 5.1 Contested Amount. The Escrow Agent shall disburse any such
amount of the Escrow Fund to Xxxxxxx following the Escrow Agent's receipt of
the document described in clause (x) or (y) of the immediately preceding
sentence in accordance with the provisions of Section 4(e).
(v) Any disbursement of all or any portion of the Escrow
Fund pursuant to this Section 4(b) shall be allocated among each Supporting
Party's Interest in the Escrow Fund pro rata based on such Supporting Party's
Applicable Percentage (as defined above).
(c) The following provisions shall apply with respect to a Claim
Notice relating to a Section 5.2 Claim:
(i) Within 60 calendar days after a Claim Notice relating to
a Section 5.2 Claim is received by a Supporting Party, the Supporting Party
shall provide to Xxxxxxx, with a copy to the Escrow Agent, a written response
(the "5.2 Response") which notice shall either: (x) state that an amount of
the Escrow Fund equal in value to the full Section 5.2 Claim may be released
from the Supporting Party's Interest in the Escrow Fund to Xxxxxxx, (y) state
that an amount of the Escrow Fund equal in value to part, but not all, of the
Section 5.2 Claim (the "5.2 Agreed Amount") may be released from the
Supporting Party's Interest in the Escrow Fund to Xxxxxxx, and the 5.2
Response shall state the rationale for contesting part of the Section 5.2
Claim, or (z) state that no portion of the Escrow Fund may be released from
the Supporting Party's Interest in the Escrow Fund to Xxxxxxx and the 5.2
Response shall state the rationale for contesting the entire Section 5.2
Claim.
(ii) If the 5.2 Response states that all or a portion of the
Escrow Fund in an amount equal to the full amount of the Section 5.2 Claim may
be released from the Supporting Party's Interest in the Escrow Fund to Xxxxxxx
or the Supporting Party does not deliver a 5.2 Response within such 60
calendar days of receipt by the Supporting Party of the Claim Notice asserting
the Section 5.2 Claim, the Escrow Agent shall, following the earlier of (x)
Escrow Agent's receipt of the 5.2 Response, or (y) the expiration of the 60
calendar day period without a 5.2 Response, disburse to Xxxxxxx an amount of
the Escrow Fund equal to the Section 5.2 Claim (or such lesser amount of the
Escrow Fund as is then equal to the Supporting Party's Interest in the Escrow
Fund) in accordance with the provisions of Section 4(e).
(iii) If the 5.2 Response states that all or a portion of
the Escrow Fund in an amount equal to part, but not all, of the Section 5.2
Claim may be released from the Supporting Party's Interest in the Escrow Fund
to Xxxxxxx, the Escrow Agent shall disburse to Xxxxxxx an amount of the Escrow
Fund equal to the 5.2 Agreed Amount (or such lesser amount of the Escrow Fund
as is then equal to the Supporting Party's Interest in the Escrow Fund) in
accordance with the provisions of Section 4(e).
(iv) If the 5.2 Response contests the full amount of the
Section 5.2 Claim (the "5.2 Contested Amount"), then the Escrow Agent shall
continue to hold in the Supporting Party's Interest in the Escrow Fund an
amount of the Escrow Fund sufficient to cover the 5.2 Contested Amount (up to
the amount of the Escrow Fund then equal to the Supporting Party's Interest in
the Escrow Fund) until the Escrow Agent receives either (x) a settlement
agreement or written instruction executed by Xxxxxxx and the Supporting Party
setting forth instructions to the Escrow Agent as to the release to Xxxxxxx of
all or a portion of the Supporting Party's Interest in the Escrow Fund, if
any, with respect to the 5.2 Contested Amount or (y) a certified copy of a
final, non-appealable order of a court of competent jurisdiction ordering the
Escrow Agent to release to Xxxxxxx all or a portion of the Supporting Party's
Interest in the Escrow Fund, if any, with respect to the 5.2 Contested Amount.
The Escrow Agent shall disburse any such amount of the Escrow Fund from the
Supporting Party's Interest in the Escrow Fund to Xxxxxxx, following the
Escrow Agent's receipt of the document described in clause (x) or (y) of the
immediately preceding sentence, in accordance with the provisions of Section
4(e).
(v) Any disbursement of all or any portion of the Escrow
Fund pursuant to this Section 4(c) shall reduce the amount of the Escrow Fund
representing the relevant Supporting Party's Interest in the Escrow Fund and
shall not affect any other Supporting Party's Interest in the Escrow Fund.
(d) At any time during the term of this Agreement, the Escrow Agent
shall disburse some or all of the Escrow Fund as directed by a written
instruction signed by Xxxxxxx and all of the Supporting Parties.
(e) For purposes of determining the number of the Escrow Shares to be
delivered to Xxxxxxx in satisfaction or partial satisfaction of any Claim in
accordance with this Agreement, such number of the Escrow Shares shall be
determined by dividing the dollar amount of such claim (in U.S. dollars) by
the average closing price of a share of Xxxxxxx common stock on the Nasdaq
National Market during the thirty (30) trading days preceding the date on
which the amount to be distributed becomes fixed pursuant to Section 4 hereof
(the Determination Date"). Following the Determination Date, Xxxxxxx shall
provide notice (the "Calculation Notice") of the calculation of (x) the
Xxxxxxx common stock price determined in accordance with the preceding
sentence and (y) the number of Escrow Shares to be released by the Escrow
Agent, to the Supporting Parties Agent, the other Supporting Parties and the
Escrow Agent in the case of a Section 5.1 Claim, or to the Supporting Party
identified in the Claim Notice and the Escrow Agent in the case of a Section
5.2 Claim, and the failure by either the Supporting Parties Agent (in the case
of a Section 5.1 Claim) or the relevant Supporting Party (in the case of a
Section 5.2 Claim) to object in writing to such calculation to Xxxxxxx and to
the Escrow Agent within 2 business days after receipt of the Calculation
Notice shall be deemed acceptance of the calculation. If the Escrow Agent does
not receive such written objection within such 2 business day period, the
Escrow Agent shall within 2 business days disburse the Escrow Shares from the
Escrow Fund. In the event the Escrow Agent receives such written objection
within such 2 business day period, the Escrow Agent shall disburse the Escrow
Shares within 2 business days after such dispute is resolved in accordance
with this Agreement.
(f) For so long as the Escrow Shares are held by the Escrow Agent,
the Escrow Agent shall (x) within 2 business days after receipt thereof
forward to the Supporting Parties Agent all proxy solicitation materials,
annual reports and other information distributed by Xxxxxxx to its
shareholders, (y) vote or cause to be voted the Escrow Shares at any meeting
of Xxxxxxx shareholders in the manner set forth in a written instruction
delivered by the Supporting Parties Agent, provided such written instruction
is unambiguous and is received by the Escrow Agent at least five (5) business
days prior to the date of such shareholder meeting, and (z) within 2 business
days after receipt thereof, distribute to the Supporting Parties, pro rata in
accordance with their respective Applicable Percentages, any cash dividends or
distributions paid by Xxxxxxx with respect to the Escrow Shares.
5. Release of the Escrow Fund. On the next business day following the
12 month anniversary of the date of this Agreement (the "Release Date"), the
Escrow Agent shall distribute all Escrow Funds held in the Escrow Account on
such date to each of the Supporting Parties, based on the balances of each
Supporting Party's Interest in the Escrow Fund. Notwithstanding the foregoing,
if Xxxxxxx has previously given any Claim Notices that have not then been
resolved in accordance with Section 4, the Escrow Agent shall retain in the
Escrow Account an amount of the Escrow Fund or a Supporting Party's Interest
in the Escrow Fund, as the case may be, equal to the aggregate Claims covered
by all such Claim Notices that have not then been resolved. Any portion of the
Escrow Fund a Supporting Party's Interest in the Escrow Fund, as the case may
be, retained in the Escrow Account shall be disbursed in accordance with the
terms of the resolution of such Claims and in the manner set forth in Section
4, with any balance to be distributed promptly thereafter in accordance with
this Section 5.
6. Fees and Expenses of the Escrow Agent. Xxxxxxx, on the one hand,
and the Supporting Parties, on the other hand, hereby agree that Xxxxxxx shall
pay to the Escrow Agent all of the Escrow Agent's fees and expenses in
accepting and performing its appointment as escrow agent hereunder in
accordance with the Fee Schedule attached hereto as Attachment A and made a
part hereof.
7. Limitation of Escrow Agent's Liability.
(a) The Escrow Agent shall be obligated only for the performance of
such duties as are expressly and specifically set forth in this Agreement on
its part to be performed, and no implied duties or obligations of any kind
shall be read into this Agreement against or on the part of the Escrow Agent.
The Escrow Agent shall not be liable to anyone for any action taken, suffered
or omitted to be taken by it hereunder in good faith except in the case of the
Escrow Agent's negligence or willful misconduct (each as finally determined by
a court of competent jurisdiction). The Escrow Agent shall incur no liability
with respect to any action taken, suffered or omitted to be taken by it in
reliance upon any notice, direction, instruction (including, without
limitation, wire transfer instructions, whether incorporated herein or in a
separate written instruction), consent, statement or other documents believed
by it in good faith to be genuine and duly authorized, nor for other action or
inaction except its own willful misconduct or negligence (each as finally
determined by a court of competent jurisdiction). The Escrow Agent shall not
be responsible for the validity or sufficiency of this Agreement or for any of
the agreements referred to or described herein (including, without limitation,
the Support Agreement and the Arrangement Agreement), or for determining or
compelling compliance therewith, and shall not otherwise be bound thereby. The
Escrow may consult with and obtain advice from counsel (who may be counsel to
a party hereto or an employee of the Escrow Agent) and shall be fully
protected in taking, suffering or omitting to take any action in reliance on
said advice. In the event the Escrow Agent believes in good faith that any
ambiguity or uncertainty exists hereunder or in any notice, instruction,
direction, request or other communication, paper or document received by the
Escrow Agent hereunder, Escrow Agent, may refrain from taking any action, and
shall be fully protected and shall not be liable in any way to Xxxxxxx, the
Supporting Parties Agent or any Supporting Party or other person or entity for
refraining from taking such action, unless the Escrow Agent receives written
instructions signed by Xxxxxxx and the Supporting Parties Agent with respect
to a Section 5.1 Claim, or by Xxxxxxx and the Supporting Party identified in
the Claim Notice with respect to a Section 5.2 Claim, which eliminates such
ambiguity or uncertainty to the satisfaction of Escrow Agent.
(b) Xxxxxxx and the Supporting Parties hereby, jointly and severally,
agree to indemnify the Escrow Agent (and its officers, directors and
employees) for, and hold it (and its officers, directors and employees)
harmless against, any loss, cost, expense (including, without limitation,
reasonable attorney's fees and expenses), damage, liability, penalty,
judgment, settlement, proceeding or claim ("Losses") incurred in good faith
without negligence or willful misconduct on the part of the Escrow Agent (each
as finally determined by a court of competent jurisdiction), arising out of or
in any way connected with its execution and delivery of this Escrow Agreements
and the administration and carrying out of its duties hereunder including,
without limitation, outside counsel fees. Xxxxxxx, on the one hand, and the
Supporting Parties, on the other hand, as among themselves, shall each be
liable for one-half of such Losses; provided, however, that if a court of
competent jurisdiction determines that any such Losses are due to the bad
faith or willful misconduct of Xxxxxxx, on the one hand, or the Supporting
Parties, on the other hand, then all of such Losses shall be borne by Xxxxxxx
or the Supporting Parties, respectively. In no event shall the Escrow Agent be
liable for indirect, punitive, incidental, special or consequential damages or
loss (including, but not limited to, lost profits) whatsoever to any person or
entity, even if the Escrow Agent has been informed of the likelihood of such
loss or damage and regardless of the form of action.
(c) If any dispute between or conflicting claims by or among Xxxxxxx,
Supporting Parties Agent and/or any Supporting Party or other person or entity
with respect to this Escrow Agreement, the Escrow Fund or the Escrow Account
arises, the Escrow Agent may, in its sole discretion, at its option (A)
initiate an action in interpleader or another appropriate action, suit or
proceeding in a court of competent jurisdiction seeking to resolve such
dispute or claims and/or (B) refrain from complying with any claim, notice,
instruction, direction, request or other communication, paper or document, so
long as such dispute or conflict shall continue, and (in either case) shall be
fully protected and shall not be liable in any way to Xxxxxxx, Supporting
Parties Agent or any Supporting Party or other person or entity for failure or
refusal to comply with such conflicting claims, notices, instructions,
directions, requests, communications, papers or documents until the Escrow
Agent is satisfied, in good faith, that such conflicting claims, notices,
instructions, directions, requests, communications, papers or documents have
been definitively determined by a final, non-appealable order, judgment,
decree or ruling of a court of competent jurisdiction or settled by agreement
between the conflicting parties as evidenced in a writing reasonably
satisfactory to the Escrow Agent.
8. Termination. The Agreement shall terminate upon the release and
distribution by the Escrow Agent of the total amount of the Escrow Fund from
the Escrow Account; provided, however, that the provisions of Sections 6 and 7
shall survive such termination or any removal or resignation of the Escrow
Agent.
9. Notices. All notices, instructions and other communications given
hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent either (i) United States First
Class mail, postage prepaid, or (ii) via a reputable nationwide overnight
courier service, in each case to the address set forth below. Any such notice,
instruction or communication shall be deemed to have been delivered four
business days after it is sent by United States First class mail, return
receipt requested, postage prepaid, or one business day after it is sent via a
reputable nationwide overnight courier service.
If to Mattson:
Xxxxxxx Technology, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
If to the Supporting Parties or the Supporting Parties Agent:
To the address listed on the signature page hereto.
If to the Escrow Agent:
U.S. Bank, National Association
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
ATTN: Xxxxxxx X. Xxxxxx, Vice President
(000) 000-0000 Telephone
(000) 000.0000 Facsimile
Any Party may give any notice, instruction or communication in
connection with this Agreement using any other means (including personal
delivery, telecopy or ordinary mail), but no such notice, instruction or
communication shall be deemed to have been delivered unless and until it is
actually received by the Party to whom it was sent. Any Party may change the
address to which notices, instructions or communications are to be delivered
by giving the other Parties to this Agreement notice thereof in the manner set
forth in this Section 10.
10. Successor Escrow Agent. In the event the Escrow Agent becomes
unavailable or unwilling to continue in its capacity herewith, the Escrow
Agent may resign and be discharged from its duties or obligations hereunder by
delivering a resignation to the Parties to this Escrow Agreement, not less
than 60 days prior to the date when such resignation shall take effect.
Xxxxxxx may appoint a successor Escrow Agent with the consent of the
Supporting Parties Agent so long as such successor is a bank or trust company
organized under the laws of the United Sates of America or any State of the
United States having assets of at least $100 million, and may appoint any
other successor Escrow Agent with the written consent of the Supporting
Parties Agent, which consent shall not be unreasonably withheld, conditioned
or delayed. If, within such notice period, Xxxxxxx provides to the Escrow
Agent written instructions with respect to the appointment of a successor
Escrow Agent and directions for the transfer of the Escrow Fund then held by
the Escrow Agent to such successor, the Escrow Agent shall act in accordance
with such instructions and promptly transfer the Escrow Fund to the designated
successor.
11. Stock Certificates. Whenever under this Agreement the Escrow
Agent shall be required to disburse all or any portion of the Escrow Fund,
Xxxxxxx shall use its commercially reasonable efforts, including by providing
instructions to the transfer agent for Xxxxxxx common stock, to provide the
Escrow Agent, as promptly as practicable, with one or more replacement stock
certificates registered in the names, and representing the numbers of shares,
required to be so disbursed and, if applicable, retained in the Escrow Fund.
12. Representations and Warranties. Each of Xxxxxxx, the Supporting
Parties and the Escrow Agent individually (and only with respect to itself)
hereby represents and warrants as of the date hereof that:
(a) Such party is an entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization and has
all requisite power and authority to enter into this Agreement and perform its
obligations hereunder.
(b) The execution, delivery and performance by such party of this
Agreement and the consummation by such party of the transactions contemplated
hereby have been duly authorized by all necessary organizational action of the
board of directors or similar governing body of such party, and no other
action on the part of such party is necessary for the execution, delivery and
performance by such party of this Agreement and the consummation by such party
of the transactions contemplated hereby. This Agreement has been duly executed
and delivered by such party and is a legal, valid and binding obligation of
such party, enforceable against such party in accordance with its terms,
except to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
creditors' rights generally and by general equity principles.
(c) Except for any consent, approval, filing or notice that would
not, if not given or made, or any violation, conflict, breach, termination,
default or acceleration which does not, materially impair the ability of such
party to consummate the transactions contemplated hereby, the execution,
delivery and performance by such party of this Agreement and the consummation
by such party of the transactions contemplated hereby: (i) will not violate
any material provision of law, rule or regulation, order, judgment or decree
applicable to such party; (ii) will not require any consent or approval of, or
material filing or notice to, any Governmental Authority under any provision
of law applicable to such party; (iii) will not violate any provision of the
organizational documents of such party, if other than a natural person; and
(iv) will not require any consent or approval under, and will not conflict
with, or result in the breach or termination of, or constitute a default
under, or result in the acceleration of the performance by such party or any
of its affiliates under, any material indenture, mortgage, deed of trust,
lease, license, franchise, contract, agreement or other instrument to which
such party is a party or by which such party or any of its assets is bound or
encumbered.
13. General.
(a) Governing Law. Notwithstanding any other provision of the Support
Agreement, the internal laws of the State of California (without reference to
its principles of conflicts of law) shall govern the construction,
interpretation and other matters arising out of or in connection with this
Agreement (whether arising in contract, tort, equity or otherwise). With
respect to any action or other legal proceeding arising out of or in
connection with this Agreement (whether arising in contract, tort, equity or
otherwise), the parties irrevocably (i) consent and submit to the
non-exclusive jurisdiction of federal and state courts located in Santa Xxxxx
County of California, (ii) waive any objection to that choice of forum based
on venue or to the effect that the forum is not convenient, and (iii) WAIVE TO
THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL OR ADJUDICATION BY
JURY.
(b) Binding Effect. Subject to, and unless otherwise provided in,
this Agreement, each and all of the covenants, terms, provisions, and
agreements contained herein shall be binding upon, and inure to the benefit
of, the Parties and their respective permitted successors, executors, heirs,
representatives, administrators and assigns.
(c) 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. This Agreement may be
executed by facsimile signature.
(d) Entire Agreement. Except for those provisions of the Support
Agreement referenced herein, this Agreement constitutes the entire
understanding and agreement of the Parties with respect to the subject matter
of this Agreement and supersedes all prior agreements or understandings,
written or oral, between the Parties with respect to the subject matter
hereof.
(e) Waivers. No waiver by any Party hereto of any condition or of any
breach of any provision of this Escrow Agreement shall be effective unless in
writing. No waiver by any Party of any such condition or breach, in any one
instance, shall be deemed to be a further or continuing waiver of any such
condition or breach or a waiver of any other condition or breach of any other
provision contained herein.
(f) Amendment. This Agreement may be amended only with the written
consent of Xxxxxxx, the Supporting Parties and the Escrow Agent.
(g) Force Majeure. The Escrow Agent shall not be responsible for
delays or failures in performance resulting from acts beyond its control. Such
acts shall include but not be limited to acts of God, strikes, lockouts,
riots, acts of war, terrorist attacks, epidemics, governmental regulations
superimposed after the fact, fire, communication line failures, computer
viruses, power failures, earthquakes or other disasters.
(h) Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, (i) consents, waivers and
modifications which may hereafter be executed, and (ii) certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, optical disk, micro-card, miniature
photographic or other similar process. The Parties hereto agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
day and year first above written.
XXXXXXX TECHNOLOGY, INC.
By: /s/ Xxxxxx X. XxxXxxxxx
----------------------------
Name: Xxxxxx X. XxxXxxxxx
Title:
BCI VENTURES INC.
By: /s/ Xxxxxxx Ishewood
---------------------------
TRIAN EQUITIES LTD.
By: /s/ X. X. XxXxxx
----------------------------
WEST STEAG PARTNERS GMBH
By: /s/ Berthold Liertke-Daldrup
/s/ Xxxx Xxxxxx
LAKE STREET CAPITAL FUND I, L.P.
By: /s/ Xxxxxxx Xxxxxx
----------------------------
U.S. BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Schedule I
Percentage
Interest in the
Supporting Party Escrow Fund Initial Amounts
-------------------------------------------------------------------------------
BCI Ventures Inc. 24.182% 70,263 shares
Lake Street Capital Fund I, L.P. 4.547% 13,211 shares
Trian Equities Ltd. 35.278% 102,503 shares
West STEAG Partners GmbH 35.994% 104,584 shares
-------------------------------------------------------------------------------
100% 290,561 shares
Attachment A
Schedule of Fees for Services as Escrow Agent
For Xxxxxxx Technology, Inc. / Canadian Target
Initial Fees
01010 Acceptance Fee $1,000
The acceptance fee includes the administrative
review of documents, initial set-up of the account,
and other reasonably required services up to and
including the closing. This is a one-time fee,
payable at closing.
U.S. Bank Corporate Trust Services reserves the
right to refer any or all escrow documents for legal
review before execution. Legal fees (billed on an
hourly basis) and expenses for this service will be
billed to, and paid by, the customer. If appropriate
and upon request by the customer, U.S. Bank
Corporate Trust Services will provide advance
estimates of these legal fees.
Administration Fees Billed One Time
04480 Escrow Agent, One Time $1,000
Annual administration fee for performance of the
routine duties of the escrow agent associated with
the management of the account. Administration fees
are payable in advance.
Incidental Expenses
SUCE0000 Charge for miscellaneous expenses such as; fax, 3.0%
messenger service, overnight mail, telephone,
stationery and postage. This charge is a percent of
total Administration Fees, charged in advance.
Transaction Fees
10880 Disbursements/Draws $20.00
Charge per item disbursed. Includes the wire or
check fee.
10100 Trades $100.00
Charge per trade to buy or sell investments,
excluding automated sweep transactions.*
*Automatic sweeping of cash into money market funds
is not considered a "trade" for the purposes of this
fee. However, applicable fees are disclosed in the
"Automatic Money Market Investments" authorization
letter or the fund prospectus provided
10101 Receipts $20.00
Charge per receipt of funds via wire or check.
Direct Out of Pocket Expenses
Reimbursement of expenses associated with the At Cost
performance of our duties, including but not limited
to publications, legal counsel after the initial
close, travel expenses and filing fees.
Extraordinary Services
Extraordinary services are duties or
responsibilities of an unusual nature, including
termination, but not provided for in the governing
documents or otherwise set forth in this schedule. A
reasonable charge will be assessed based on the
nature of the service and the responsibility
involved. At our option, these charges will be
billed at a flat fee or at our hourly rate then in
effect.
Account approval is subject to review and qualification. Fees are subject
to change at our discretion and upon written notice. Fees paid in advance
will not be prorated. The fees set forth above and any subsequent
modifications thereof are part of your agreement. Finalization of the
transaction constitutes agreement to the above fee schedule, including
agreement to any subsequent changes upon proper written notice. In the
event your transaction is not finalized, any related out-of-pocket
expenses will be billed to you directly. Absent your written instructions
to sweep or otherwise invest, all sums in your account will remain
uninvested and no accrued interest or other compensation will be credited
to the account. Payment of fees constitutes acceptance of the terms and
conditions set forth.
"IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT"
To help the government fight the funding of terrorism and money
laundering activities, Federal law requires all financial institutions to
obtain, verify and record information that identifies each person who
opens an account.
For a non-individual person such as a business entity, a charity, a Trust
or other legal entity we will ask for documentation to verify its
formation and existence as a legal entity. We may also ask to see
financial statements, licenses, identification and authorization
documents from individuals claiming authority to represent the entity or
other relevant documentation."
Dated: October 27, 2004
