Exhibit 2.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is entered into as of this 30th day of April, 1998,
by and among Unique Mobility, Inc., a Colorado corporation ("Unique"), Xxxxxxx
Xxxxxxxx and Xxxxxxx XxXxxx (the "Shareholders") and Norwest Bank Colorado,
N.A.(the "Escrow Agent").
W I T N E S S E T H : WHEREAS, Unique and the Shareholders have prior to
the execution of this Escrow Agreement entered into an Agreement and Plan of
Merger and Reorganization dated as of April 30, 1998 (the "Agreement"); WHEREAS,
pursuant to the terms of the Agreement, the Shareholders have agreed that of the
total number of shares of Unique' Common Stock being transferred to the
Shareholders (the "Shares"), 69,000 of the Shares of Xxxxxxx Xxxxxxxx,
represented by certificate number 10732, and 6,000 of the Shares of Xxxxxxx
XxXxxx, represented by certificate number (the "Escrowed Shares")10734, and
assignments of such shares in blank, shall be held in Escrow pursuant to the
terms of this Escrow Agreement; and WHEREAS, in accordance with the provisions
of the Agreement, Norwest Bank Colorado, N.A. is designated to act as Escrow
Agent for the parties hereto under the terms of this Escrow Agreement and
pursuant to the terms of the Agreement, the pertinent provisions of which are
incorporated herein by reference.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
(1) Appointment of Escrow Agent. Unique and the Shareholders hereby appoint
Norwest Bank Colorado, N.A. as Escrow Agent and such person hereby agrees to
serve as Escrow Agent pursuant to the terms of this Escrow Agreement and the
Agreement. In the event of any conflict between the terms of this Escrow
Agreement and the Escrow Agreement prepared by Escrow Agent and executed by the
parties hereto on the date hereof, the terms of this Escrow Agreement shall
control.
(2) Deposit of Escrow Shares. Pursuant to the terms of the Agreement, the
Shareholders agree to assign, transfer and deliver all of the Escrowed Shares to
the Escrow Agent. The Escrowed Shares shall be evidenced by stock certificates
endorsed in blank by the Shareholders or with attached stock powers duly
executed in blank by the Shareholders in proper form for transfer, with all
signatures guaranteed and all required stock transfer stamps attached.
Thereafter, Escrow Agent shall hold the Escrowed Shares pursuant to the terms of
this Escrow Agreement and the Agreement. The Escrow Agent shall also hold any
and all Escrowed Funds pursuant to the terms of this Escrow Agreement. The term
"Escrowed Funds" shall include sale proceeds from the sale of any of the
Escrowed Shares pursuant to the terms of this Escrow Agreement and interest or
other amounts earned on such proceeds. Dividends paid on the Escrowed Shares
shall be paid to the Shareholders.
(3) Administration and Investment of Stock Certificates and Escrowed Funds.
The Escrow Agent agrees to receive and hold in escrow the Escrowed Shares and/or
Escrowed Funds pursuant to the terms of the Agreement and this Escrow Agreement
and to perform the acts and duties imposed upon it under the terms and
conditions of both this Escrow Agreement and the Agreement. Upon written request
of the Shareholders, the Escrow Agent shall sell all or a portion of the
Escrowed Shares pursuant to instructions provided by the Shareholders provided
such sale can be made pursuant to the terms of the Agreement. The Escrow Agent
shall invest and reinvest the Escrowed Funds in savings accounts, money market
funds, other short-term investment vehicles which will not incur a penalty upon
withdrawal and which are FDIC insured instruments of United States banks,
short-term securities issued by the United States Government, or other
investments if authorized by both Unique and the Shareholders in writing. All
interest, dividends and other amounts earned or paid on the Escrowed Funds shall
be held by the Escrow Agent until released pursuant to this Escrow Agreement.
(4) Disbursement of Escrowed Funds and Escrowed Shares; Termination of
Escrow Agreement. Pursuant to the terms of the Agreement, the Escrow Agent may
satisfy any and all claims of Unique for which Unique is entitled to
reimbursement (such as in the event of a post-closing adjustment to the purchase
price) or indemnification pursuant to the terms of the Agreement (collectively a
"Claim" or "Claims") by transferring all or a portion of the Escrowed Shares or
Escrowed Funds to Unique to satisfy all such Claims. Any such transfer may only
be made upon the unanimous agreement of the Shareholders or pursuant to a valid
court order, binding arbitration award or authorization as provided for herein
or in Article X of the Agreement. In satisfying such Claims the Escrow Agent
shall first disburse the Escrowed Shares or a portion thereof to Unique. To the
extent any such Claim is not fully satisfied after disbursing all of the
Escrowed Shares, the Escrow Agent shall disburse the Escrowed Funds or the
portion thereof necessary to satisfy any such Claim to Unique. The Escrowed
Shares shall be valued at $7.85 per share, subject to adjustment to reflect any
stock split or stock dividend paid on the Escrowed Shares (the "Unique Share
Value") for purposes of satisfying all such Claims regardless of what the market
value may be at the time any such Claim is satisfied. Upon written notification
from Unique and the Shareholders, or upon the 24 month anniversary of this
Escrow Agreement, whichever is earlier, Escrow Agent shall disburse the balance
of the Escrowed Shares and Escrowed Funds to the Shareholders or, if any
Shareholder has died, to his estate. Notwithstanding the foregoing, if on the
date of the escrow share distribution to the Shareholders as set forth above,
there shall be a pending Claim, there shall be withheld from the Escrowed Shares
distribution and retained in escrow that number of Escrowed Shares having a
value (determined on the basis of the Unique Share Value) and Escrowed Funds if
necessary, equal to the amount reasonably estimated by Unique to cover the
reimbursement or indemnification obligation of the Shareholders for any such
pending Claims. Any action which has been threatened by a third party, which if
brought might constitute a Claim, shall be considered a pending Claim. Unique
shall notify the Shareholders and Escrow Agent in writing of any Claim or any
such pending Claims prior to the scheduled 24 month termination of this Escrow
Agreement. Upon the disbursement of all Escrowed Funds and/or delivery of the
Escrowed Shares, including those which continue to be held in Escrow after the
24 month anniversary of this Escrow Agreement, this Escrow Agreement shall be
terminated.
(5) Voting Rights, Stock Splits, etc. The Shareholders shall have the right
to vote the Escrowed Shares during the time such shares are held in escrow
pursuant hereto. All shares of Unique Common Stock payable in respect of
Escrowed Shares as a result of any stock split or other non-cash distribution
(including a stock dividend) shall be deposited with the Escrow Agent by the
Shareholders, together with appropriate stock powers executed by the
Shareholders.
(6) Deposit Records. The Escrow Agent shall forward all account records or
statements related to the Escrowed Shares or Escrowed Funds and interest earned
thereon to Unique and the Shareholders. The Escrow Agent shall deliver to Unique
and the Shareholders, upon final disbursement, a complete accounting of all
transactions relating to this Escrow Agreement. The Shareholders shall be
responsible for any income tax or other tax, federal and state, levied upon
interest earned on the Escrowed Funds or dividends declared on the Escrowed
Shares.
(7) Provisions Concerning Escrow Agent.
(a) The Escrow Agent shall be entitled to rely, and shall be protected in
acting or refraining from acting, upon any instruction, document or instrument
furnished to them hereunder and believed by it to be genuine and believed by it
to have been signed or presented by Unique or the Shareholders. Nothing herein
contained shall be deemed to impose upon the Escrow Agent any duty to exercise
discretion, it being the intention hereof that the Escrow Agent shall not be
obligated to act except upon written instructions or direction. The Escrow Agent
shall not be liable for any action (or refraining from any action) taken by it
in good faith and believed by it to be authorized or within the rights or powers
conferred upon it in this Escrow Agreement or the Agreement. The Escrow Agent
may consult with counsel of its choice and shall be fully protected and
indemnified in acting or refraining to act in good faith in accordance with the
opinion of such counsel.
(b) The Escrow Agent shall be entitled to a $1,500 fee and reimbursement
for out-of-pocket expenses, including, but not limited to, reasonable attorneys'
fees incurred in connection with the performance of its duties hereunder, to be
paid by Unique. The Escrow Agent shall not collect any fee from the Escrowed
Shares or Escrowed Funds.
(c) Unique and the Shareholders each agree to indemnify and hold the Escrow
Agent harmless against any and all loss, damage, liability or expense incurred
arising out of or in connection with the acceptance of its position as Escrow
Agent and the administration of this Escrow Agreement, including the costs and
expenses of defending against any claim in connection with the performance of
its duties hereunder; provided, however, that the Escrow Agent shall not be
indemnified for any loss, damage, liability or expense caused by or arising out
of such Escrow Agent's gross negligence, willful misconduct or failure to act in
good faith.
(d) It shall be the Escrow Agent's responsibility for the safekeeping of
the Escrowed Funds and Escrowed Shares, the disbursement and delivery of such
Escrowed Funds and Escrowed Shares in accordance with this Escrow Agreement and
the Agreement, and the maintenance of records in accordance with this Escrow
Agreement, and the Escrow Agent shall not be required to take any other action
with reference to any matters which might arise in connection with the Escrowed
Funds, the Escrowed Shares or this Escrow Agreement.
(e) If any disagreement should arise among Unique or the Shareholders with
respect to this Escrow Agreement, the Escrowed Funds or Escrowed Shares, the
Escrow Agent shall have the absolute right to do either or both of the
following:
(i) withhold or stop all performance under this Escrow Agreement (save
and except the safekeeping of the Escrowed Funds and Escrowed Shares) until
the Escrow Agent is satisfied that such disagreement has been resolved; or
(ii) file a suit in interpleader and obtain an order from a court of
appropriate jurisdiction requiring all persons involved to litigate in such
court their respective claims arising out of or in connection with the
Escrowed Funds or the Escrowed Shares.
(f) The Escrow Agent is authorized to disregard any and all notices or
instructions given it by Unique or the Shareholders, or by any other person,
firm or corporation, except only such notices or instructions as are provided
for herein or any order or process of any court with jurisdiction. If any
property held hereunder is at any time attached, garnished, or levied upon under
any court order or by federal, state or local taxing authorities, or in case the
payment, assignment, transfer, conveyance or delivery of any such property shall
be stayed or enjoined by any court order, or in case any order, judgment or
decree shall be made or entered by any court affecting such property or any part
thereof, then and in any of such events, the Escrow Agent is authorized to rely
upon and comply with any such order, writ, levy, judgment or decree which it is
advised by legal counsel of its own choosing is binding upon it; and if it
complies with any such order, writ, levy, judgement or decree, it shall not be
liable to any of the parties hereto, or any other person, firm or corporation,
by reason of such compliance even though such order, writ, levy, judgment or
decree may be subsequently reversed, modified, annulled, set aside or vacated.
(g) The Escrow Agent shall not be required or have a duty to notify any
person of any payment or the maturity of any security held hereunder nor shall
it be required to take any legal action to enforce payment of any security held
hereunder.
(h) The Escrow Agent shall not be responsible for the sufficiency or
accuracy of the form, execution, validity or genuineness of documents or
securities now or hereafter deposited hereunder, or of endorsement thereon, or
for any lack of endorsement thereon, or for any description therein, nor shall
it be responsible or liable in any respect on account of the identity, authority
or rights of the persons executing or delivering or purporting to execute or
deliver any such document, security, endorsement or escrow instructions. (i)
Upon the resignation of the Escrow Agent, the Shareholders and Unique may
jointly appoint a successor Escrow Agent.
(8) Miscellaneous.
(a) This Escrow Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado. The parties hereto consent to the
jurisdiction of the courts of the State of Colorado to resolve any disputes
hereunder.
(b) This Escrow Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their heirs, administrators, representatives,
successors and assigns.
(c) All notices and communications hereunder shall be in writing and shall
be deemed to be duly given if delivered in accordance with the giving of notice
requirements set forth in the Agreement.
(d) This Escrow Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
(e) All capitalized terms used in this Escrow Agreement which are not
otherwise defined herein shall have the meaning assigned to them in the
Agreement unless the context hereof otherwise requires.
IN WITNESS WHEREOF, the parties have signed this Escrow Agreement as of the
date first above written.
Unique: UNIQUE MOBILITY, INC.
By:/s/ Xxxxxx X. French
Xxxxxx X. French, Treasurer
Shareholders:
/s/Xxxxxxx Xxxxxxxx
___________________________
XXXXXXX XXXXXXXX
/s/Xxxxxxx XxXxxx
___________________________
XXXXXXX XXXXXX
Escrow Agent:
NORWEST BANK COLORADO, N.A.
By:
__________________________
