EXHIBIT 2.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Escrow Agreement") is made and entered
into as of June 2, 1999, by and among Asyst Technologies, Inc., a California
corporation ("Parent"), PROGRESSIVE SYSTEM TECHNOLOGIES, INC., a Texas
corporation (the "Company"), the shareholders of the Company listed on Exhibit A
hereto (the "Shareholders"), and STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A., a national banking association (the "Escrow Agent").
RECITALS
A. Parent, Merger Sub Acquisition Corp., a Texas corporation and
wholly-owned subsidiary of Parent ("Merger Sub"), the Company, and certain
shareholders of the Company have entered into an Agreement and Plan of Merger
and Reorganization, dated June 2, 1999 (the "Reorganization Agreement") which
provides that Merger Sub will be merged with and into the Company (the
"Merger"), with the Company being the surviving corporation, on the terms and
conditions set forth therein. Capitalized terms used and not otherwise defined
in this Escrow Agreement shall have the meanings assigned to them in the
Reorganization Agreement, a copy of which is attached hereto.
B. The Reorganization Agreement contemplates the establishment of an
escrow arrangement to secure the indemnification obligations of the Shareholders
to each of the Indemnitees. As a condition precedent to Parent's consummation
of the transactions contemplated by the Reorganization Agreement and related
agreements, Parent has required that the Company and the Shareholders enter into
this Escrow Agreement; and the Shareholders desire, and have agreed, to enter
into this Escrow Agreement in order to induce Parent to consummate the Merger.
C. By virtue of the Shareholders' execution of this Escrow Agreement,
the Shareholders have agreed to be bound by the terms of this Escrow Agreement,
including without limitation (i) the establishment of this escrow to secure
their indemnification obligations under Section 9.2 of the Reorganization
Agreement, (ii) the appointment of the Majority Shareholders (as defined in
Section 3(b)) as their representative for the purposes of this Escrow Agreement
and as attorney-in-fact and agent for and on behalf of each of the Shareholders,
and the taking by the Majority Shareholders of any and all actions and the
making of any decisions required or permitted to be taken or made by them under
this Escrow Agreement, and (iii) all of the other terms, conditions and
limitations in this Escrow Agreement.
AGREEMENT
The parties to this Escrow Agreement, intending to be legally bound,
agree as follows:
1. Appointment of the Escrow Bank. Parent, the Company, the
Shareholders and the Majority Shareholders hereby appoint State Street Bank and
Trust Company of California, N.A. to act as the escrow agent under this Escrow
Agreement and State Street Bank and Trust Company of California, N.A. hereby
accepts such appointment.
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2. Deposit of Funds
(a) Simultaneously with the Closing, 50,000 shares of Parent
Common Stock (the "Escrow Stock") will be deposited by Parent at the direction
of the Shareholders with the Escrow Agent. The amount delivered and deposited by
each Shareholder shall be as set forth opposite the names of the Shareholders on
Exhibit A hereto. The Escrow Stock will be registered in the names of the Escrow
Agent on behalf of the Shareholders who otherwise would be entitled to receive
them as a result of the Merger as set forth in Exhibit A.
(b) The Escrow Agent shall acknowledge by written receipt on the
date hereof that the Escrow Stock has been delivered and deposited with the
Escrow Agent and that the Escrow Agent will hold the Escrow Stock in a separate
account (the "Escrow Fund") pursuant to the terms and conditions hereof.
(c) The value of each share of Escrow Stock for purposes of this
Escrow Agreement shall be equal to $25.60, adjusted as appropriate to reflect
any stock split, reverse stock split, stock dividend or similar transaction
effected by the Company after the Closing Date (the "Valuation Price"). Parent
shall notify the Escrow Agent of any adjustment of the Valuation Price. Unless
and until the Escrow Agent receives written notice from Parent of any adjustment
of the Valuation Price, the Escrow Agent may assume without inquiry that no such
adjustment has been or is required to be made.
3. Distributions.
(a) Dividends, Etc. Any cash, securities or other property
distributable (whether by way of dividend, stock split or otherwise) in respect
of or in exchange for any shares of Escrow Stock (including ordinary dividends)
shall not be distributed to the Shareholders, but rather shall be distributed by
Parent to the Escrow Agent and held by the Escrow Agent in the Escrow Fund. At
the time any shares of Escrow Stock are required to be released from the Escrow
Fund to any person pursuant to this Escrow Agreement, any cash, securities or
other property previously received by the Escrow Agent in respect of or in
exchange for such shares of Escrow Stock (including ordinary dividends) shall be
released from the Escrow Fund to such person. Unless and until the Escrow Agent
shall receive cash, securities or other property distributable in respect of or
in exchange for any shares of Escrow Stock, the Escrow Agent may assume without
inquiry that no such property has been, or is required to be, distributed to it
and shall be obligated only to hold in the Escrow Fund the shares of Escrow
Stock and such other property as has actually been delivered to it.
(b) Investment of Cash Received. The Escrow Agent shall invest
any cash received pursuant to Section 3(a) or any other provision of this Escrow
Agreement at, and pursuant to, the written direction of a majority in interest
of the Shareholders (based on the percentages set forth on Exhibit A hereto)
(the "Majority Shareholders") in Eligible Investments (as defined below) and
shall not be responsible or liable for any loss accruing from any investment
made in accordance herewith. All earnings received from the investment of the
cash in the Escrow Fund shall be credited to, and shall become a part of, the
Escrow Fund (and any losses on such investments shall be debited to the Escrow
Fund). The Escrow Agent shall have no liability for any investment losses,
including any losses on any investment required to be
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liquidated prior to maturity in order to make a payment required hereunder.
"Eligible Investments" as used in this Section 3(b) means (i) obligations issued
or guaranteed by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is pledged
in support thereof); (ii) obligations (including certificates of deposit and
banker's acceptances) of any domestic commercial bank having capital and surplus
in excess of $500,000,000; (iii) repurchase obligations for underlying
securities of the type described in clause (i); or (iv) shares of money market
funds rated in the highest rating categories by Xxxxx'x and Standard & Poor's.
In the absence of written direction from the Majority Shareholders as to how
cash in the Escrow Fund should be invested, the Escrow Agent shall invest such
cash in the SSgA U.S. Treasury Money Market Fund, which is a money market mutual
fund registered under the Investment Company Act of 1940, the principal of which
is invested in obligations issued or guaranteed by the United States government.
Interest on any such investment shall be allocated to the Shareholders in
accordance with their percentage interests in the Escrow Fund set forth in
Exhibit A.
4. Voting of Escrow Shares. Each Shareholder shall be entitled to instruct
the Escrow Agent as to how shares of Escrow Stock attributable to such
Shareholder are to be voted. Each Shareholder may instruct the Escrow Agent with
respect to a percentage of the total shares of Escrow Stock held in the Escrow
Fund from time to time corresponding to such Shareholder's percentage interest
in the Escrow Fund set forth in Exhibit A. In the absence of such directions,
the Escrow Agent shall not vote the shares of Escrow Stock or take any other
action as registered owner of the Escrow Stock. The Escrow Agent need not
forward to the Shareholders or anyone else any copies of annual or quarterly
reports, proxies or other documents received by it. Parent agrees to furnish
such materials directly to the Shareholders, so that they, in turn, may exercise
their voting and other rights as beneficial owners of the Escrow Stock. The
Escrow Agent shall be under no obligation to itself preserve, protect or
exercise rights in the Escrow Stock, and shall be responsible only for
reasonable measures to maintain the physical safekeeping thereof, and otherwise
to perform and observe such duties on its part as are expressly set forth in
this Escrow Agreement.
5. Transferability. The interests of Shareholders in the Escrow Fund and in
the Escrow Stock shall not be assignable or transferable, other than by
operation of law. No transfer of any of such interests by operation of law shall
be recognized or given effect until the Escrow Agent shall have received written
notice of such transfer.
6. Legend. Each certificate representing a share of Escrow Stock shall be
imprinted with a legend in substantially the following form:
THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT
TO THE CONDITIONS SPECIFIED IN THE ESCROW AGREEMENT, DATED AS OF JUNE 2,
1999 BETWEEN THE ISSUER AND THE ORIGINAL HOLDER THEREOF, AND THE ISSUER
RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF THE
CONDITIONS SHALL BE FURNISHED BY THE ISSUER TO THE HOLDER HEREOF UPON
WRITTEN REQUEST AND WITHOUT CHARGE.
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7. Disbursement of Escrowed Funds.
7.1 Claim Notice. If an Indemnitee determines in good faith that there
is or has been (a) any inaccuracy in or breach of any representation or warranty
made by the Company or the Signing Shareholder set forth in Section 2 of the
Reorganization Agreement, or in the Closing Certificates, (b) any breach of any
covenant or obligation of the Company or the Signing Shareholder (including the
covenants set forth in Sections 4 or 5 of the Reorganization Agreement), or (c)
any Legal Proceeding relating to any inaccuracy or breach of the type referred
to in clause "(a)" or "(b)" above (including any Legal Proceeding commenced by
any Indemnitee for the purpose of enforcing any of its rights under Section 9 of
the Reorganization Agreement) that entitles such Indemnitee to be indemnified
pursuant to Section 9 of the Reorganization Agreement (a "Claim") then Parent
shall deliver to both the Majority Shareholders and the Escrow Agent a written
notice of such Claim (a "Claim Notice"), setting forth (i) a brief description
of the circumstances supporting the Indemnitee's belief that such possible
inaccuracy, breach or Legal Proceeding exists or has occurred, and (ii) to the
extent possible, a non-binding, preliminary estimate of the aggregate dollar
amount of all Damages that have arisen and may arise as a result of such
possible inaccuracy or breach (such aggregate amount being referred to as the
"Claim Amount").
7.2 Response Notice. Within thirty (30) days after the delivery of a
Claim Notice to the Majority Shareholders and the Escrow Agent, the Majority
Shareholders shall deliver to the Indemnitee, with a copy to the Escrow Agent, a
written notice (the "Response Notice") containing: (a) instructions to the
Escrow Agent to the effect that the Escrow Agent shall withdraw from the Escrow
Fund and pay to the Indemnitee an amount equal to the entire Claim Amount set
forth in such Claim Notice; or (b) instructions to the Escrow Agent to the
effect that the Escrow Agent shall withdraw from the Escrow Fund an amount equal
to a specified portion (but less than the entire amount) of the Claim Amount set
forth in such Claim Notice, together with a statement that the remaining portion
of such Claim Amount is being disputed; or (c) a statement that the Claim and
the entire Claim Amount set forth in such Claim Notice is being disputed. If no
Response Notice is received by the Indemnitee and the Escrow Agent from the
Majority Shareholders within thirty (30) days after the delivery of a Claim
Notice to the Majority Shareholders and the Escrow Agent, then the Majority
Shareholders shall be deemed to have given instructions to the Escrow Agent that
an amount of the Escrow Fund equal to the entire Claim Amount set forth in such
Claim Notice is to be withdrawn from the Escrow Fund and paid to the Indemnitee.
7.3 Disbursement of Escrowed Funds to Indemnitee
(a) If the Majority Shareholders give (or are deemed to have given)
instructions to the Escrow Agent to the effect that the Escrow Agent shall
withdraw from the Escrow Fund and pay to the Indemnitee an amount in shares of
Escrow Stock, valued at the Valuation Price, equal to the entire Claim Amount
set forth in a Claim Notice, then the Escrow Agent shall promptly, following the
required delivery date for the Response Notice, (i) transfer, and deliver to
Indemnitee such shares of Escrow Stock in such amount held in the Escrow Fund
(or such lesser amount of Escrow Stock as is then held in the Escrow Fund) and
(ii) the Escrow Agent shall continue to hold the remaining portion of the Escrow
Fund pursuant to this Escrow Agreement.
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(b) If a Response Notice delivered by the Majority Shareholders in
response to a Claim Notice contains instructions to the Escrow Agent to the
effect that the Escrow Agent shall withdraw from the Escrow Fund and pay to the
Indemnitee an amount equal to a specified portion (but not the entire amount) of
the Claim Amount set forth in such Claim Notice, then (i) the Escrow Agent shall
promptly following the required delivery date for the Response Notice transfer
and deliver to the Indemnitee such lesser amount (or such lesser amount of
Escrow Stock as is then held in the Escrow Fund) and (ii) the Escrow Agent shall
continue to hold the remaining portion of the Escrow Fund pursuant to this
Escrow Agreement.
(c) If a Response Notice delivered by the Majority Shareholders in
response to a Claim Notice contains a statement that all or a portion of the
Claim Amount set forth in such Claim Notice is being disputed (such Claim Amount
or the disputed portion thereof being referred to as the "Disputed Amount"),
then, the Escrow Agent shall continue to hold in the Escrow Fund Escrow Stock
equal to the Disputed Amount or such lesser amount that remains in the Escrow
Fund. Such Escrow Stock shall continue to be held in the Escrow Fund until
receipt by the Escrow Agent of (i) a notice executed by the Indemnitee and the
Majority Shareholders setting forth instructions to the Escrow Agent regarding
the release of such Escrow Stock or (ii) a copy of a non-appealable court order
or a court order for which the appeal period has expired containing instructions
to the Escrow Agent regarding the release of such Escrow Stock. The Escrow
Agent shall thereupon release the Escrow Stock from the Escrow Fund in
accordance with the instructions set forth in such notice or order.
(d) Any distribution of Escrow Stock to the Shareholders pursuant to any
provision of this Escrow Agreement shall be made to them at their addresses and
in the percentage interests set forth in Exhibit A and shall be deemed to have
been made when the Escrow Agent instructs the stock transfer agent of the Escrow
Stock to issue and mail the appropriate number of shares of Escrow Stock.
8. Majority Shareholders.
8.1 The Shareholders hereby irrevocably appoint the Majority
Shareholders as their agent for purposes of this Escrow Agreement, and the
Majority Shareholders hereby accept such appointment as the Shareholders' agent.
Parent and the Escrow Agent shall be entitled to deal exclusively with the
Majority Shareholders on all matters relating to this Escrow Agreement, and
shall be entitled to rely conclusively (without further evidence of any kind
whatsoever) on any document executed or purported to be executed on behalf of
any Shareholder by the Majority Shareholders, and on any other action taken or
purported to be taken on behalf of any Shareholder by the Majority Shareholders,
as fully binding upon such Shareholder. If for any reason there are no Majority
Shareholders at any time, all references herein to the Majority Shareholders
shall be deemed to refer to the Shareholders.
8.2 Neither the Majority Shareholders nor any agent employed by them
shall be liable to any Shareholder relating to the performance of their duties
under the Reorganization Agreement or this Escrow Agreement for any errors in
judgment, negligence, oversight, breach of duty or otherwise except to the
extent it is finally determined in a court of competent jurisdiction by clear
and convincing evidence that the actions taken or not taken by the Majority
Shareholders constituted fraud or were taken or not taken in bad faith. The
Majority
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Shareholders shall be indemnified and held harmless by the Shareholders in the
amounts determined by applying the procedures specified in this Escrow Agreement
against all expenses (including attorneys' fees), judgments, fines and other
amounts paid or incurred in connection with any action, suit, proceeding or
claim to which the Majority Shareholders are made a party by reason of the fact
that they were acting as the Shareholders' agent pursuant to the Reorganization
Agreement or this Escrow Agreement; provided, however, that the Majority
Shareholders shall not be entitled to indemnification hereunder to the extent it
is finally determined in a court of jurisdiction by clear and convincing
evidence that the actions taken or not taken by the Majority Shareholders
constituted fraud or were taken or not taken in bad faith. The Majority
Shareholders shall be protected in acting upon any notice, statement or
certificate believed by it to be genuine and to have been furnished by the
appropriate person and in acting or refusing to act in good faith or any matter.
8.3 A decision, act, consent or instruction of the Majority
Shareholders shall be made in writing and shall constitute a decision of all the
Shareholders, and shall be final, binding and conclusive upon each of the
Shareholders, and Parent, the Escrow Agent and the Company may rely upon any
decision, act, consent or instruction of the Majority Shareholders as being the
decision, act, consent or instruction of each and all of the Shareholders.
Parent, the Escrow Agent and the Company 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 Majority Shareholders.
9. Release of Escrowed Funds
9.1 If on March 2, 2000, there are no outstanding Claims, the Escrow
Agent shall release and pay to the Shareholders the Escrow Stock and any other
assets held in the Escrow Fund, such payment to be made to each Shareholder by
multiplying the aggregate amount of the Escrow Fund by the percentage set forth
opposite such Shareholder's name on Exhibit A hereto. If, on such date, there
are one or more outstanding Claims, the Escrow Agent shall release and pay to
the Shareholders only an amount equal to the amount by which the Escrow Fund
exceeds the aggregate amount of the outstanding Claims and an amount equal to
all outstanding Claims will continue to be held until all such Claims have been
resolved. If any funds remain in the Escrow Fund after the resolution and
payment provided for in the immediately preceding sentence, the Escrow Agent
shall release and pay such remainder to the Shareholders with each Shareholder
receiving an amount determined by multiplying such remainder by the percentage
set forth opposite such Shareholder's name on Exhibit A hereto.
9.2 Upon release of the Escrow Fund pursuant to Section 9.1 of this
Escrow Agreement, any and all other assets remaining in the Escrow Fund, less
any taxes required under applicable law to be withheld by the Escrow Agent with
respect to the Escrow Fund or such other assets, shall be paid by the Escrow
Agent to the party or parties to whom such funds are being released.
10. Fees and Expenses
10.1 The Escrow Agent agrees to perform its duties hereunder in
accordance with the fee schedule attached as Exhibit B hereto, which may be
subject to change on an annual
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basis (the "Escrow Agent Fees"). In addition to the Escrow Agent Fees, the
Escrow Agent shall be entitled to reimbursement on demand for all expenses
reasonably incurred in connection with the administration of the Escrow Fund
created hereby which are in excess of its compensation for normal services
hereunder, including without limitation, payment of any reasonable legal fees
incurred by the Escrow Agent in connection with resolution of any claim by any
party hereunder. Each of (a) Parent and (b) the Shareholders shall be liable for
one-half (1/2) of the Escrow Agent Fees and such other amounts due to Escrow
Agent and Parent shall be entitled to reimbursement from the Escrow Stock if any
such excess expenses are paid by Parent and not paid by the Shareholders within
thirty (30) days after written request for such payment is made by Parent
pursuant to Section 10.3.
10.2 Except as may otherwise be provided herein, all expenses (including
attorneys' fees) incurred by any Shareholder in connection with this Escrow
Agreement shall be borne by such Shareholder.
10.3 Thirty (30) days following the delivery of a notice in writing to
the Escrow Agent and the Majority Shareholders by Parent in respect of Section
10.1 or Section 11.5, unless the Majority Shareholders shall have paid the
Shareholders' portion of the Escrow Agent fees, the Escrow Agent shall transfer,
deliver and assign to Parent, in reimbursement of fees and expenses pursuant to
the last sentence of Section 10.1 or the first sentence of Section 11.5, such
amount of Escrow Stock held in the Escrow Fund as instructed by Parent.
11. Duties of the Escrow Agent; Limitation of Escrow Agent's Liability
11.1 The sole duty of the Escrow Agent, other than as herein specified,
shall be to receive and hold the Escrow Fund, subject to disbursement in
accordance with this Escrow Agreement, and the Escrow Agent shall be under no
duty to determine whether Parent, the Majority Shareholders or the Shareholders
are complying with the requirements of this Escrow Agreement or any other
agreement. Parent and the Shareholders acknowledge and agree that the Escrow
Agent (a) shall not be responsible for any of the agreements referred to herein
but shall be obligated only for performance of such duties as are specifically
set forth in this Escrow Agreement; (b) shall not be obligated to take any legal
or other action hereunder which might in its judgment involve any expense or
liability unless it shall have been furnished with acceptable indemnification;
(c) 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 hereunder and 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, and (d) may consult counsel satisfactory to
it, and the opinion of such counsel, shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion of such counsel.
11.2 Neither the Escrow Agent nor any of its directors, officers or
employees shall be liable to anyone for any action taken or omitted to be taken
by it or any of its directors, officers or employees hereunder except in the
case of Escrow Agent's willful misconduct or gross negligence. In no event
shall the Escrow Agent be liable for incidental, consequential or punitive
damages. Parent and the Shareholders, jointly and severally, covenant and agree
to
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indemnify the Escrow Agent and its directors, officers and employees and hold
them harmless without limitation from and against any loss, liability or expense
of any nature incurred by the Escrow Agent arising out of or in connection with
this Escrow Agreement or with the administration of its duties hereunder,
including but not limited to reasonable legal fees and other costs and expenses,
except such loss, liability or expense caused by the Escrow Agent's willful
misconduct or gross negligence.
11.3 Parent and the Shareholders, jointly and severally, agree to
assume any and all obligations imposed now or hereafter by any applicable tax
law with respect to the payment of Escrow Funds under this Escrow Agreement, and
to indemnify and hold the Escrow Agent and its directors, officers and employees
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 such payment or other activities under this Escrow Agreement, except for
taxes payable by the Escrow Agent in respect of fees received by it hereunder.
Parent and the Shareholders undertake to instruct the Escrow Agent in writing
with respect to the Escrow Agent's responsibility for withholding and other
taxes, assessments or other governmental charges, certifications and
governmental reporting in connection with its acting as Escrow Agent under this
Escrow Agreement. Parent and the Shareholders, jointly and severally, agree to
indemnify and hold the Escrow Agent and its directors, officers and employees
harmless from any liability on account of taxes, assessments or other
governmental charges, including without limitation the withholding or deduction
or the failure to withhold or deduct same, and any liability for failure to
obtain proper certifications or to properly report to governmental authorities,
to which the Escrow Agent may be or become subject in connection with or which
arises out of this Escrow Agreement, including costs and expenses (including
reasonable legal fees), interest and penalties.
11.4 The Escrow Agent shall have no more or less responsibility or
liability on account of any action or omission of any book-entry depository or
subescrow agent employed by the Escrow Agent than any such book-entry depository
or subescrow agent has to the Escrow Agent, except as to the extent that such
action or omission of any book-entry depository or subescrow agent was caused by
the Escrow Agent's own willful misconduct or negligence.
11.5 As among themselves, each of (a) Parent and (b) the Shareholders
shall be liable for fifty percent (50%) of any amounts owed to the Escrow Agent
in satisfaction of any of the foregoing indemnification obligations and, subject
to the provisions of Sections 10.1 and 10.3 hereof, Parent shall be entitled to
reimbursement from the Escrow Fund of the Shareholders' share of any such loss,
liability or expense, if such share is paid by Parent. The provisions of
Section 11.2 and 11.3 shall survive termination of this Escrow Agreement.
11.6 In the event of any disagreement between Parent and the
Shareholders, or between them and any other person, resulting in adverse claims
or demands being made in connection with the assets hereunder, or in the event
that the Escrow Agent, in good faith, be in doubt as to what action it should
take hereunder, the Escrow Agent may, at its option, refuse to comply with any
claims or demands or it may refuse to take any other action hereunder, so long
as such disagreement continues or such doubt exists, and in any such event, the
Escrow Agent shall not be or become liable in any way or to any person for its
failure or refusal to act, and the Escrow Agent shall be entitled to continue so
to refrain from acting until (a) the rights of Parent
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and the Shareholders shall have been fully and finally adjudicated by a court of
competent jurisdiction, or (b) all differences shall have been adjusted and all
doubt resolved by agreement between Parent or the Shareholders and the Escrow
Agent shall have been notified thereof in writing signed by or on behalf of all
such persons. The rights of the Escrow Agent under this Section 11.6 are in
addition to all other rights which it may have by law or otherwise.
12. Replacement of the Escrow Agent. The Escrow Agent may resign at any
time by giving sixty (60) days prior written notice to all parties hereto, but
will continue to serve until a successor is appointed by mutual agreement of the
Parent and the Majority Shareholders. The Parent and the Majority Shareholders,
by mutual agreement, may at any time, and with or without cause, remove the
Escrow Agent by written notice to the Escrow Agent. In the event the Escrow
Agent is removed or for any reason is unable to serve or fails to continue to
serve as the escrow agent hereunder, the Parent and the Majority Shareholders,
by mutual agreement, shall appoint a successor escrow agent. Any successor
escrow agent shall execute and deliver an instrument accepting the appointment
as escrow agent hereunder and thereupon will have the same rights and duties as
the original Escrow Agent and be governed by the terms and conditions set forth
in this Escrow Agreement.
13. General
13.1 Other Agreements. Nothing in this Escrow Agreement is intended to
limit any of Parent's or the Shareholders' rights or obligations under the
Reorganization Agreement (or any agreement entered into in connection with the
transactions contemplated by the Reorganization Agreement).
13.2 Governing Law. This Escrow Agreement shall be construed in
accordance with, and governed in all respects, by the internal laws of the State
of California (without giving effect to the conflict of laws).
13.3 Successors and Assigns. No party hereto may assign any of its
rights or obligations hereunder without the prior written consent of the other
parties hereto. This Escrow Agreement shall be binding upon: the Company and
its successors and assigns (if any); each undersigned Shareholder and his
respective personal representatives, executors, administrators, estates, heirs,
successors and permitted assigns (if any); Parent and its successors and
permitted assigns (if any); and the Escrow Agent and its successors and
permitted assigns. This Escrow Agreement shall inure to the benefit of: the
Shareholders; Parent; the Company; the Escrow Agent; the other Indemnitees
(subject to Section 8 of the Reorganization Agreement); and the respective
successors and permitted assigns (if any) of the foregoing.
13.4 Severability. In the event that if any provision of this Escrow
Agreement, or the application of any such provisions to any Person or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Escrow Agreement, and the
application of such provision to Persons or circumstances other than those as to
which it is determined to be invalid, unlawful, void or unenforceable, shall not
be impaired or otherwise affected and shall continue to be valid and enforceable
to the fullest extent permitted by law.
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13.5 Waiver.
(a) No failure on the part of any Person to exercise any power,
right, privilege or remedy under this Escrow Agreement, and no delay on the part
of any Person in exercising any power, right, privilege or remedy under this
Escrow Agreement, shall operate as a waiver of such power, right, privilege or
remedy; and no single or partial exercise of any such power, right, privilege or
remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy.
(b) No Person shall be deemed to have waived any claim arising out
of this Escrow Agreement, or any power, right, privilege or remedy under this
Escrow Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such Person; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
13.6 Amendments. This Escrow Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of all of the parties hereto; provided however,
that this Escrow Agreement may be amended on behalf of all Shareholders by the
Majority Shareholders.
13.7 Attorneys' Fees. Subject to Section 11.2, if any action or
proceeding relating to this Escrow Agreement or the enforcement of any provision
of this Escrow Agreement is brought against any party hereto, the prevailing
party shall be entitled to recover reasonable attorneys' fees, costs and
disbursements (in addition to any other relief to which the prevailing party may
be entitled).
13.8 Notices. Any notices and other communications required or
permitted to be delivered to any party under this Escrow Agreement shall be in
writing and shall be deemed properly delivered, given and received when
delivered (by hand, by registered mail, by courier or express delivery service
or by facsimile) to the address or facsimile telephone number set forth beneath
the name of such party below (or to such other address or facsimile telephone
number as such party shall have specified in a written notice given to the other
parties hereto):
If to Parent: Asyst Technologies, Inc.
00000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Chief Financial Officer
Facsimile: (000) 000-0000
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If to Escrow Agent to: State Street Bank and Trust Company
of California, N.A.
Library Tower
000 Xxxx 0/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Corporate Trust Administration
(Asyst/Progressive System Technologies 1999 Escrow)
Facsimile: (000) 000-0000
If to the Shareholders: as set forth on the signature page hereto
Notwithstanding the foregoing, notices addressed to the Escrow Agent shall
be effective only upon receipt. The Escrow Agent may assume that Claims
Notices, Response Notices or other documents or notices required to be delivered
to the Escrow Agent and any other person have been delivered to such other
person if they have been received by the Escrow Agent, but the Escrow Agent need
not inquire into or verify such delivery.
13.9 Headings. The headings contained in this Escrow Agreement are for
convenience of reference only, shall not be deemed to be a part of this Escrow
Agreement and shall not be referred to in connection with the construction or
interpretation of this Escrow Agreement.
13.10 Construction.
(a) For purposes of this Escrow Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Escrow Agreement.
(c) As used in this Escrow Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this Escrow
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Escrow Agreement and Exhibits to this Escrow Agreement.
13.11 Further Assurances. Each party hereto shall execute and cause to be
delivered to each other party hereto such instruments and other documents, and
shall take such other actions, as such other party may reasonably request for
the purpose of carrying out or evidencing any of the transactions contemplated
by this Escrow Agreement.
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13.12 Absence of Third Party Beneficiary Rights. No provisions of this
Escrow Agreement are intended, nor will be interpreted, to provide or create any
third party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, stockholder, partner or any party hereto or any other
person or entity unless specifically provided otherwise herein, and, except as
so provided, all provisions hereof will be personal solely between the parties
to this Escrow Agreement.
13.13 Entire Agreement. This Escrow Agreement and the Reorganization
Agreement referred to herein set forth the entire understanding of the parties
hereto relating to the subject matter hereof and thereof and supersede all prior
agreements or understandings among or between any of the parties relating to the
subject matter hereof and thereof.
13.14 Authorization. The execution, delivery of and performance under this
Escrow Agreement by each of Parent, the Company, the Shareholders and the Escrow
Agent have been duly authorized by all necessary and appropriate action.
13.15 Counterparts. 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 instrument.
13.16 Tax Reporting Language. Parent, the Company and the Shareholders
agree to provide the Escrow Agent with certified tax identification numbers for
each of them by furnishing appropriate Forms W-9 (or W-8 in the case of non-U.S.
persons) and other forms and documents that the Escrow Agent may reasonably
request (collectively, "Tax Reporting Documentation") to the Escrow Agent within
30 days after the date hereof. The parties hereto understand that, if such Tax
Reporting Documentation is not so certified to the Escrow Agent, the Escrow
Agent may be required by the Internal Revenue Code, as it may be amended from
time to time, to withhold a portion of the Escrow Shares or cash otherwise
distributable pursuant to this Escrow Agreement.
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In Witness Whereof, the parties have executed this Escrow Agreement as of
June 2, 1999.
Asyst Technologies, Inc.
By: /s/ Xxxxxxx X. XxXxxxxxxx
-------------------------
Printed Name: Xxxxxxx X. XxXxxxxxxx
---------------------
Title: Senior Vice President, CFO
--------------------------
State Street Bank and Trust Company
of California, N.A.
By: /s/ Xxxxxx Mar
---------------------------------
Printed Name: Xxxxxx Mar
-----------------------
Title: Assistant Vice President
------------------------
Progressive System Technologies, Inc.
By: /s/ Xxxxxxx XxXxxxxx
----------------------------
Printed Name: Xxxxxxx XxXxxxxx
-----------------------
Title: Chairman
----------------------------
Shareholders:
/s/ Advent International Investors LP
/s/ GPE II
/s/ Envirotech
/s/ Petra Capital
/s/ Xxxxxxx XxXxxxxx
/s/ Xxxxxxx XxXxxx
/s/ Xxx XxXxxx
/s/ Xxxx Xxx
/s/ Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxx
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Exhibit A
Percent (%)
Name and Address Number of Escrow Shares Interest in Escrow Fund
--------------------------------- ----------------------------- ------------------------------
Xxxxxxx XxXxxxxx 7,088 14.17%
Xxxxxxx XxXxxx 8 .02%
Xxx XxXxxx 4 .01%
Xxxx Xxx 9 .02%
Xxxxxx Xxxxxxxx 9 .02%
Xxxxx Xxxxxx 18 .04%
Advent International Investors LP 29 .06%
Growth Capital Partners 1,783 3.57%
GPE II 19,472 38.94%
Envirotech 6,665 13.33%
Petra Capital 13,041 26.08%
Xxxxxx Xxxxx 460 .92%
Xxx Xxxxx 460 .92%
Xxxxxx Xxxxxx 460 .92%
Xxxx Xxx Xxxxxx 460 .92%
Other holders 36 .07%
A-1
Exhibit B
ESCROW AGENT FEE SCHEDULE
B-1
