EX 2.2
ESCROW AGREEMENT
This ESCROW AGREEMENT (the "Escrow Agreement") is made as of
September 20, 2004, between Tekelec, a California corporation ("Parent"), and
Core Capital Partners, L.P. as the representative (the "Representative") of the
preferred stockholders listed on Exhibit A hereto (the "Escrow Stockholders")
and U.S. Bank National Association (the "Escrow Agent").
RECITALS
A. Parent, VocalData, Inc., a Delaware corporation ("Company"),
Punkydoo Inc., a Delaware corporation and wholly owned subsidiary of Parent
("Acquisition Subsidiary"), and the Representative have entered into an
Agreement and Plan of Merger (the "Merger Agreement"), dated as of September 14,
2004, pursuant to which, among other things, the parties thereto agreed to the
merger of Acquisition Subsidiary with and into the Company.
B. The transactions contemplated by the Merger Agreement are being
closed (the "Closing") contemporaneously with the execution of this Escrow
Agreement.
C. Pursuant to the Merger Agreement, a certain portion of the Merger
Consideration is to be deposited in escrow, subject to the terms and conditions
of the Merger Agreement and this Escrow Agreement.
D. The Escrow Agent has agreed to hold the Escrow Deposit (as
hereinafter defined) and disburse and apply the same in accordance with the
terms and conditions of this Escrow Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements expressed herein and in the Merger Agreement, the parties hereto
agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings attributed to them in the Merger
Agreement.
2. APPOINTMENT OF ESCROW AGENT. Parent and the Representative, on
its own behalf and on behalf of the Escrow Stockholders, hereby appoint the
Escrow Agent to serve as escrow agent hereunder, and the Escrow Agent hereby
accepts such appointment and agrees to act as escrow agent hereunder and to
accept, hold and distribute the Escrow Deposit in accordance with and subject to
the terms and conditions hereof.
3. DEPOSIT OF ESCROW DEPOSIT.
3.1. Pursuant to Sections 1.4 and 1.9 of the Merger Agreement,
as soon as practicable after the Effective Time, Parent will cause to be
delivered to the Escrow Agent and deposited into escrow 311,998 shares of Parent
Common Stock (the shares so deposited, as adjusted for stock splits,
combinations, stock dividends and distributions, and any other property,
including without limitation, cash dividends, issued in respect of such Parent
Common Stock as a result of any of the foregoing, the "Escrow Deposit"). All
shares of Parent Common Stock included in the Escrow Deposit (the "Subject
Shares") shall be registered in the name of
Representative as nominee for the Escrow Stockholders. The Representative shall
deliver to the Escrow Agent an original stock power endorsed in blank.
3.2. The Escrow Deposit shall include any income earned
thereon.
4. INVESTMENTS.
4.1. The Escrow Agent shall hold and safeguard the Escrow
Deposit in accordance with the terms of this Escrow Agreement and applicable
provisions of the Merger Agreement and not as the property of Parent, Company or
any Escrow Stockholder.
4.2. As set forth below, at each meeting of Parent
stockholders, the Representative shall be entitled to direct the vote of such
whole number of Subject Shares as may comprise the Escrow Deposit on behalf of
the Escrow Stockholders on the record date for such meeting. Upon receipt of
proxy materials in connection with any such meeting, the Escrow Agent shall
promptly forward copies of such materials to the Representative for delivery to
the Escrow Stockholders. The Representative shall, in accordance with the
instructions received from the Escrow Stockholders, exercise any voting rights
pertaining to the Subject Shares, and the Representative shall comply with any
such written instructions. In the absence of such instructions, the
Representative shall vote the Subject Shares in its discretion.
4.3. The Escrow Agent shall cause any cash in the Escrow
Deposit from time to time to be invested and reinvested as directed in writing
by the Representative, in Authorized Investments, provided that all such
investments shall have appropriately blended maturities but in no event shall
any individual investment mature more than 91 days from the date of investment
or reinvestment. For the purpose of this Escrow Agreement, "Authorized
Investments" means (1) short term interest bearing or discount debt obligations
issued or guaranteed by the Government of the United States and /or (2) money
market funds rated AAA by Standard and Poor's which invests in short term
interest bearing or discount debt obligations issued or guaranteed by the
Government of the United States including funds offered by Escrow Agent. Any
direction by the Representative to the Escrow Agent as to investment or
reinvestment of funds shall be in writing and shall be provided to the Escrow
Agent no later than 9:00 a.m. on the day on which the investment is to be made.
Any such direction received after 9:00 a.m. or received on a non-Business Day
shall be deemed to have been given prior to 9:00 a.m. the next Business Day. If
a direction is not received, the Escrow Agent shall not have any obligation to
invest any cash included in the Escrow Deposit in Authorized Investments and
pending receipt of same shall be entitled to hold such Escrow Deposit uninvested
in its trust account.
4.4. As directed by the Representative, all earnings,
dividends or other property (including securities, but excluding the Subject
Shares) received in connection with the Escrow Deposit shall be converted into
cash and invested as provided in this Section 4. The Escrow Agent shall supply a
written statement to Parent and the Representative monthly listing all
transactions with respect to the Escrow Deposit during each such period.
4.5. The Escrow Agent shall not be held liable for any losses
incurred in the investments of any funds in Authorized Investments provided that
the Escrow Agent is not grossly negligent or does not act willfully or in bad
faith in connection with such investments.
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5. APPLICATION OF ESCROW DEPOSIT TO CLAIMS OF PARENT.
5.1. If Parent claims that a Parent Indemnified Person has
suffered Indemnified Losses for which it is entitled to indemnification under
Section 8.1 of the Merger Agreement at any time prior to 11:59 p.m. (California
time) on March 20, 2006 (the "Release Date"), Parent shall deliver the written
notice required by Section 8.5 of the Merger Agreement (any notice from Parent
under this Section 5 shall be referred to as a "Release Notice") to the
Representative and the Escrow Agent to release from the Escrow Deposit such
amount (the "Claimed Amount"). The parties acknowledge that there may be
multiple Release Notices given by Parent during the term hereof and that any
Release Notice may be amended by Parent from time to time in writing on or prior
to the Release Date (e.g., to increase or decrease the Claimed Amount stated
therein), any such amendment being effective as of and from the date of delivery
thereof to the Escrow Agent. The Claimed Amount shall be paid by the Escrow
Agent out of the Escrow Deposit to or at the direction of Parent in accordance
with the Release Notice unless the Representative disputes the validity or
amount of such claim by notifying Parent and the Escrow Agent in a writing, as
required by Section 8.5 of the Merger Agreement (a "Dispute Notice"), within
fourteen (14) calendar days after Parent has provided the Representative and the
Escrow Agent with a Release Notice. If a Dispute Notice has not been delivered
to Parent and the Escrow Agent within the required fourteen (14) calendar day
period, the Escrow Agent shall promptly disburse from the Escrow Deposit to or
at the direction of Parent the portion of the Escrow Deposit specified in the
Release Notice.
5.2. In the event that a Dispute Notice signed by the
Representative has been provided to Parent and the Escrow Agent within the
required fourteen (14) calendar day period, the Escrow Agent shall distribute
promptly to or at the direction of Parent the undisputed portion (if any) of the
amount set forth in the Release Notice, and withhold the amount in dispute (the
"Disputed Amount"), which amount shall continue to be held by the Escrow Agent
in accordance with this Section 5.2. The Disputed Amount shall be held by the
Escrow Agent in accordance with the terms hereof until the earlier to occur of
the following: (i) the Representative and Parent jointly direct the disbursement
of the Disputed Amount by delivering written instruction to the Escrow Agent, or
(ii) the Escrow Agent receives a copy of a final non-appealable judgment or
order of a court of competent jurisdiction (a "Directive") with respect to the
Disputed Amount (which judgment or order shall also be delivered by Parent to
the Representative or by the Representative to Parent, as the case may be). Upon
receipt of such instructions or Directive, or as promptly as practicable but in
no event more than fifteen (15) calendar days after receipt of such instructions
or Directive, the Escrow Agent shall disburse or continue to hold (as the case
may be) the Disputed Amount, as required by such instructions or Directive, as
the case may be.
5.3. All disbursements of the Escrow Deposit under this
Section 5 shall be made first, in cash up to the amount of cash and Authorized
Investments held in the Escrow Funds and second, in an amount of whole shares of
Parent Common Stock (rounded down to the nearest whole number of shares) equal
to the dollar amount of the balance of such required disbursement divided by
$18.59.
6. DISBURSEMENT OF ESCROW DEPOSIT TO ESCROW STOCKHOLDERS. Promptly
following the Release Date, the Escrow Agent shall release to the Representative
in accordance with this Section 6 the Escrow Deposit remaining in the escrow
account; provided, however, the
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Escrow Agent shall retain (and not deliver to the Representative) such portion
of the Escrow Deposit in the amount equal to all Disputed Amounts outstanding on
the Release Date which have not been resolved in accordance with Section 5 and
all Claimed Amounts that have not then been paid to Parent or disputed by the
Representative in accordance with Section 5 hereof. Following the resolution of
any Disputed Amounts in accordance with Section 5 hereof, the Escrow Agent shall
disburse the Disputed Amounts as provided in the Directive or in written
instructions from Parent and the Representative. The Escrow Agent shall
distribute all such amounts (less any reasonable out of pocket costs and
expenses incurred by the Representative in connection with services hereunder to
the extent such Representative have not previously been reimbursed for such
amounts) to the Representative for distribution to the Escrow Stockholders, with
each Escrow Stockholder being entitled to receive a pro rata portion of such
distribution (in the same proportion of cash and whole shares of Parent Common
Stock (rounded to the nearest whole share) as made in the entire disbursement)
equal to such Escrow Stockholder's percentage interest in the Merger
Consideration set forth on Exhibit A attached hereto (the "Pro Rata Amount").
7. CERTAIN COVENANTS. Parent and the Representative, on its own
behalf and on behalf of the Escrow Stockholders, hereby agree that all taxes
payable with respect to the interest earnings on the Escrow Deposit shall be the
responsibility of the Escrow Stockholders as the parties entitled to such
interest earnings. Parent and the Representative agree that the Escrow Agent
shall report the interest earnings to the Escrow Stockholders on the appropriate
tax forms and, to the extent required by the Code, withhold the appropriate tax.
The Representative agrees that it will use its reasonable efforts to timely
provide to the Escrow Agent all documents and information necessary to satisfy
the reporting obligations with respect to the interest earnings, including the
aggregate amount of interest earnings allocable to each Escrow Stockholder (or
the aggregate amount includible in gross income of each Escrow Stockholder), the
name, address and taxpayer identification number of each Escrow Stockholder, and
such other information as may be required by the tax forms. In addition, the
Representative agrees that it will cooperate with the Escrow Agent to obtain
each Escrow Stockholder's Certification of Taxpayer Identification Number on
Substitute Form W-9 or Substitute Form W-8BEN from each Escrow Stockholder. In
addition, Parent and the Representative hereby agrees that they will make all
reasonable efforts to resolve as quickly as possible any claims still pending
pursuant to Sections 5 or Section 6 at the time a disbursement is required to
made hereunder.
8. JOINT WRITTEN INSTRUCTIONS AND DIRECTIONS; DISBURSEMENTS.
Notwithstanding any other provisions of this Escrow Agreement, the Escrow Agent
shall deal with the Escrow Deposit, or any part thereof, at any time in
accordance with any directions given in an undisputed Release Notice or jointly
given in writing by Parent and the Representative to the Escrow Agent or in a
Directive. The parties hereto agree that all disbursements of Parent Common
Stock required to be made hereunder shall be made by delivery of a certificate
registered in the name of Parent or an Escrow Stockholder, as applicable, to, in
the case of a delivery to an Escrow Stockholder, the Representative, or, in the
case of a delivery to Parent, the address specified in Section 11. The parties
hereto agree that all disbursements of cash to any Escrow Stockholder shall be
made to the Representative for the benefit of each such Escrow Stockholder or to
Parent, as applicable, in each case, by wire transfer of immediately available
funds in accordance with the wire transfer instructions specified in the notice
directing the Escrow Agent to make such disbursement.
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9. PROVISIONS CONCERNING THE ESCROW AGENT.
9.1. This Escrow Agreement sets forth, exclusively, the duties
of the Escrow Agent and no additional duties or obligations shall be inferred
herefrom or implied hereby.
9.2. The Escrow Agent shall not be responsible for the
validity of any documents or other property delivered to it pursuant hereto, may
act and rely conclusively upon any instrument or signature believed by it to be
genuine and may assume that any person purporting to give any notice or
instructions hereunder, believed by the Escrow Agent to be authorized, has been
duly authorized so to do.
9.3. The Escrow Agent shall not be liable for any error of
judgment, or for any act done or step taken or omitted by it in good faith, or
for any mistake of fact or law, or for anything which it may in good faith do or
refrain from doing in connection herewith, except to the extent that any act or
omission constitutes gross negligence or willful misconduct. In no event shall
the Escrow Agent be liable for special, indirect or consequential loss or damage
of any kind whatsoever (including, but not limited to, lost profits), even if
the Escrow Agent has been advised of such loss or damage and regardless of the
form of action.
9.4. The Escrow Agent may consult with, and obtain advice
from, legal counsel in the event of any dispute or question as to the
construction of any of the provisions hereof or its duties hereunder, and it
shall incur no liability and shall be fully protected in acting in good faith in
accordance with the advice of such counsel.
9.5. The Escrow Agent shall not be bound by any modification
of this Escrow Agreement unless it shall have specifically consented thereto in
writing.
9.6. The Representative, on the one hand, and Parent, on the
other hand, shall each upon demand pay to the Escrow Agent 50% of the amount of
all reasonable expenses, including the reasonable fees and expenses of counsel,
which the Escrow Agent may incur, and its normal fees for all services rendered,
in each case in connection with the discharge of its duties, and the exercise or
enforcement of the rights of the parties hereunder. The Escrow Agent may deduct
any unpaid fees from the Escrow Deposit. In the event Escrow Agent deducts any
unpaid fees for which Parent is responsible hereunder from the Escrow Deposit,
Parent shall promptly deposit into the escrow account, Parent's portion of such
unpaid fees and in the event Escrow Agent deducts any unpaid fees for which the
Representative is responsible hereunder from the Escrow Deposit, the
Representative shall promptly deposit into the escrow account their portion of
such unpaid fees.
9.7. The Escrow Agent may resign by giving written notice in
writing to Parent and the Representative of such resignation, specifying a date
which such resignation shall take effect, which shall in no event be earlier
than sixty (60) days after the giving of such notice, and shall be discharged
from its duties and obligations upon the appointment of a successor Escrow Agent
as hereafter provided and the delivery to such successor of the Escrow Deposit.
Immediately upon receipt of such notice, Parent and the Representative shall
appoint a successor Escrow Agent who shall be mutually acceptable to them. Any
such successor Escrow Agent shall deliver to Parent and the Representative and
to the resigning Escrow Agent a written instrument accepting such appointment
hereunder, and thereupon it shall succeed to all the rights
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and duties of the Escrow Agent hereunder, and shall be entitled to receive the
Escrow Deposit. In the event that a successor Escrow Agent shall not be so
appointed by the date of resignation specified by the Escrow Agent, the Escrow
Agent shall have the right to appoint as a successor Escrow Agent any national
bank, and the parties hereto agree to accept any such successor Escrow Agent
appointed by the Escrow Agent.
9.8. In the event of any dispute between Parent or the
Representative, or between the Escrow Agent and any one or more of the other
parties hereto, with regard to the Escrow Agent or its duties, or any other
matter concerning the disposition of the Escrow Deposit or in the event that the
Escrow Agent, in good faith, is in doubt as to what action it should take
hereunder, the Escrow Agent may deposit the Escrow Deposit with any court
described in Section 10.10 of the Merger Agreement pending the decision of such
court, and the Escrow Agent shall be entitled to refrain from action pending,
and rely upon, the decision of such court. The rights of the Escrow Agent under
this Section 9.8 are cumulative of all other rights which it may have by law or
otherwise.
9.9. The Representative and Parent hereby agree that the
Escrow Agent shall be indemnified from and against any loss, liability or
expense reasonably incurred, without gross negligence, willful misconduct or bad
faith on its part, arising out of or in connection with the Escrow Agreement,
including the expense of defending itself against any claim or liability arising
therefrom. Any payment required to be made pursuant to this Section 9.9 shall be
paid from the Escrow Deposit. The Escrow Agent shall not be required to give any
bond or surety or report to any court despite any statute, custom or rule to the
contrary. Notwithstanding the foregoing, Parent and the Representative agrees
that any payment required to be made pursuant to this Section 9.9 shall be paid
50% by Parent and 50% by the Representative. The Escrow Agent may deduct any
unpaid amounts from the Escrow Deposit. In the event Escrow Agent deducts any
unpaid amounts for which Parent is responsible under this Section 9.9 from the
Escrow Deposit, Parent shall promptly deposit into the escrow account Parent's
portion of such unpaid amounts and in the event Escrow Agent deducts any unpaid
amounts for which the Representative is responsible hereunder from the Escrow
Deposit, the Representative shall promptly deposit into the escrow account their
portion of such unpaid amounts.
9.10. Parent and the Representative together may terminate the
appointment of the Escrow Agent hereunder upon written notice specifying the
date upon which such termination shall take effect. In the event of such
termination, Parent and the Representative shall before the date of such
termination jointly appoint a successor Escrow Agent, and the Escrow Agent shall
deliver the remaining Escrow Deposit to such successor Escrow Agent.
10. PROVISIONS CONCERNING THE REPRESENTATIVE.
10.1. Until the later of the Release Date or the date on which
no Escrow Deposit remains held in escrow hereunder, the Representative shall,
and shall have full power and authority to, exclusively act on behalf of each
Escrow Stockholder in connection with all matters relating to this Escrow
Agreement and the Merger Agreement. The Representative shall also have full
power and authority to give and receive notices by or on behalf of each Escrow
Stockholder.
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10.2. The Representative shall be entitled to reimbursement
from the Escrow Stockholders of all reasonable expenses incurred in the
performance of its duties as Representative under this Escrow Agreement and the
Merger Agreement. To the extent that expenses of the Representative remain
unreimbursed by the Escrow Stockholders and Escrow Deposit remains in the escrow
account on the Release Date, the reimbursement obligations contained in this
Section 10.2 shall be satisfied by the Escrow Stockholders from the Escrow
Deposit (less, in either case, any Disputed Amounts), as appropriate to the
expenses being reimbursed, pro rata from each such Escrow Stockholder based on
the Escrow Stockholder's Pro Rata Amount.
10.3. By giving notice to the Representative in the manner
provided by Section 11, a party shall be deemed to have given notice to all of
the Escrow Stockholders and any action taken by the Representative may be
considered by any other party to be the action of each such Escrow Stockholder
for all purposes, including for all purposes of this Escrow Agreement and the
Merger Agreement. In addition, the parties hereto acknowledge and agree that (i)
none of the Escrow Stockholders shall be entitled to individually take any
action which the Representative is authorized hereunder to take on behalf of
such Escrow Stockholders and (ii) the failure of the Representative to take any
action it is permitted or authorized to take hereunder on behalf of the Escrow
Stockholders during the applicable time period in which such action is permitted
to have been taken by the Representative, including, without limitation,
providing any Dispute Notice hereunder or under the Merger Agreement, shall be
deemed for all purposes to constitute a complete waiver and release by each
Escrow Stockholder of the right to individually take any such action.
10.4. In the event that the Representative is unable or
refuses to serve, the Escrow Stockholders will promptly notify Parent and the
Escrow Agent in writing of the designation by a majority in interest of the
Escrow Stockholders of successors to act as Representative hereunder.
10.5. The provisions contained in this Section 10 are in
addition to, and not in limitation of, Section 1.12 of the Merger Agreement, and
to the extent any conflict or contradiction exists between this Section 10 and
Section 1.12 of the Merger Agreement, then the provisions of Section 1.12 of the
Merger Agreement shall control; provided that Section 10.4 shall control the
matters addressed therein regarding this Agreement.
11. NOTICES AND WRITTEN DIRECTIONS. All notices, requests, demands,
and other communications required or permitted under this Escrow Agreement shall
be in writing and shall be deemed to have been duly given and made upon being
delivered either by courier or fax delivery to the party for whom it is intended
and by depositing such notice, postage prepaid, certified or registered mail,
return receipt requested, in the United States mail, bearing the address shown
in this Section 11 for, or such other address as may be designated in writing
hereafter by, such party:
If to Parent:
Tekelec
00000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
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Attention: President
Facsimile No.:(000) 000-0000
and
Xxxxxx X. Xxxxxx
00000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxxxx X. Xxxxxx
Xxxxx Xxxx LLP
000 Xxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
If to the Representative:
Core Capital Partners, L.P.
000 00xx Xxxxxx X.X., 0xx Xxxxx
Xxxxxxxxxx X.X. 00000
Attention: Xxxx Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Xxxx X. Xxx
Xxxxxx & Xxxxxx L.L.P.
Terrace 7
0000 Xxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
If to the Escrow Agent:
U.S. Bank National Association
One U.S. Bank Plaza
Mail Code: SL-MO-T6CT
Xx. Xxxxx, Xxxxxxxx 00000
Attention : Xxxxx X. Xxxxxx
Facsimile No. : (000) 000-0000
12. TRANSFER OF INTERESTS. The interests of the Escrow Stockholders
or the Representative in the Escrow Deposit and the rights and obligations of
the parties hereunder may
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not be transferred except by operation of law, and will not be represented by
any certificate or instrument; provided, however, that, notwithstanding anything
to the contrary contained in this Agreement, Parent may assign any interest in
its rights hereunder to any of its lenders without consent. Neither the
Representative nor the Escrow Stockholders shall be entitled to withdraw the
Escrow Deposit except as provided hereunder or to substitute any other property
therefore.
13. RIGHTS TO ESCROW DEPOSIT. Neither Parent nor any Stockholder
shall be deemed to have any right, title or interest in or possession of the
Escrow Deposit and therefore shall not have the ability to pledge, convey,
hypothecate or grant as security any portion of the Escrow Deposit unless and
until such deposit has been disbursed or is required to be disbursed to Parent
or the Representative pursuant to Sections 5 or 6. Accordingly, the Escrow Agent
will not act as a custodian of either Parent or any Escrow Stockholder for the
purposes of perfecting a security interest therein, no creditor of Parent or any
Escrow Stockholder shall have any right to have or to hold any portion of the
Escrow Deposit as collateral for any obligation and shall not be able to obtain
a security interest in any assets (tangible or intangible) contained in or
relating to the Escrow Fund.
14. LIABILITIES OF PARENT, REPRESENTATIVE AND STOCKHOLDERS. Neither
the depositing hereunder of the Escrow Deposit nor any of the other provisions
of this Escrow Agreement shall directly or indirectly limit or expand any of the
liabilities or obligations of any Party under the Merger Agreement.
15. COUNTERPARTS. Counterpart copies of this Escrow Agreement may be
signed by all parties and signature pages exchanged by fax or otherwise. The
parties intend that counterpart copies signed and exchanged as provided in the
preceding sentence shall be fully binding. Counterpart originals of this Escrow
Agreement shall be exchanged by U.S. mail or overnight courier service at the
earliest reasonable date following the exchange of signature pages by fax.
16. AMENDMENT; WAIVER. No modification, amendment or waiver of any
provision of this Escrow Agreement will be effective unless such modification,
amendment or waiver is approved in writing by Parent, the Representative, and
the Escrow Agent. The failure of any party to enforce any of the provisions of
this Agreement will in no way be construed as a waiver of such provisions and
will not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
17. BINDING EFFECT; ASSIGNMENT. This Escrow Agreement shall be
binding upon and inure to the benefit of the respective successors and permitted
assigns of the parties hereto.
18. HEADINGS. The headings of the various sections of this Escrow
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Escrow Agreement.
19. SEVERABILITY. If any provision of this Escrow Agreement shall be
determined to be illegal or unenforceable, the remaining provisions of this
Escrow Agreement shall remain in full force and effect, and this Escrow
Agreement shall be construed as if the illegal or unenforceable provision were
not a part hereof, so long as the remaining provisions of
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this Escrow Agreement shall be sufficient to carry out the overall intent of the
parties as expressed herein.
20. GOVERNING LAW. This Escrow Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to its conflicts of law doctrine.
21. FURTHER ASSURANCES. Each party hereto shall perform all other
acts and execute and deliver all other documents as may be necessary or
appropriate to carry out the purposes and intent of this Escrow Agreement.
22. THIRD PARTY BENEFICIARY. Nothing set forth in this Escrow
Agreement shall be construed to confer any benefit to any third party who is not
a party to this Escrow Agreement.
23. VENUE AND JURISDICTION. Any disputes arising out of, in
connection with or with respect to this Escrow Agreement, the subject matter
hereof, the performance or non-performance of any obligation hereunder, or any
of the transactions contemplated hereby shall be adjudicated as set forth in
Section 10.10 of the Merger Agreement.
24. ENTIRE AGREEMENT. This Agreement and the Merger Agreement embody
the entire agreement and understanding of the parties hereto with respect to the
subject matter hereof, and supersede all prior and contemporaneous agreements
and understandings relative to such subject matter.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the date first set forth above.
TEKELEC
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CORE CAPITAL PARTNERS, L.P.
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
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EXHIBIT A
SCHEDULE OF PRO RATA PORTIONS OF ESCROW STOCKHOLDERS
ESCROW STOCKHOLDER PRO RATA PORTION
------------------------------------- ----------------
Seed Company Partners, L.P. 0.09680
SD-CO4 Partners, L.P. 6.33690
SD-CO5 Partners, L.P. 3.62246
Capital Southwest Corporation 0.53398
SAIC Venture Capital Corporation 3.76541
Access Technology Partners, L.P. 3.28656
Xxxxxxxxx & Xxxxx California 0.26122
Access Technology Partners Brokers Fund, L.P. 0.02180
H&Q Employee Venture Fund 2000, L.P. 0.02756
Xxx Xxxxx 0.03558
Xxxxxxxxx & Xxxxx Employee Venture Fund, X.X. XX 0.05865
Starbow Partners 0.18109
Hickory Venture Capital Corporation 1.88879
Xxxx Xxxxxx 0.08237
Xxxx Xxxxx 0.01378
Xxxxx Xxxxxx 0.01378
Rob Geneiser 0.05449
Xxxxx Xxxxxx 0.02756
Xxxx Xxxxxxxx 0.00545
Xx Xxxxxx 0.00224
Xxxxx Xxxx 0.00833
Xxxx Xxxxxxx 0.00096
ESCROW STOCKHOLDER PRO RATA PORTION
------------------------------------- ----------------
Austin Ventures VII, L.P. 31.24026
Capital Southwest Venture Corporation 0.09359
Trinity Ventures VII, L.P. 16.06933
Trinity VII Side-by-Side Fund, L.P. 0.78943
SD-VDI Partners, L.P. 7.33370
Core Capital Partners, L.P. 19.31871
Minotaur LLC 4.82920
A-2
