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FORM OF
TENDER AGREEMENT
THIS TENDER AGREEMENT (this "Agreement") dated as of December 17, 1999 is
entered into by and among GE Energy Services, Inc., a Delaware corporation
("Parent"), Emmy Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of Parent ("Buyer"), and , in his capacity as a stockholder
of the Company and a resident of the State of ("Securityholder"), with
respect to certain equity securities owned by Securityholder of Showpower, Inc.,
a Delaware corporation (the "Company"), and, for purposes of Section 1.7 hereof,
the Company.
WITNESSETH:
WHEREAS, Parent, Buyer and the Company have entered into an Agreement and
Plan of Merger (the "Merger Agreement") dated as of the date hereof pursuant to
which Buyer has agreed to make a cash tender offer described therein and
thereafter merge with and into the Company (the "Merger") in accordance with the
provisions of the Delaware General Corporation Law of the State of Delaware;
WHEREAS, as of the date hereof, Securityholder beneficially owns and has
the power to vote certain shares of the common stock, par value $.01 per share,
of the Company (the "Company Common Stock"); and
WHEREAS, in consideration of Buyer's and Parent's agreements herein and in
the Merger Agreement, Securityholder has agreed to cooperate with Buyer and
Parent with respect to the acquisition of the Company by Parent and Buyer upon
the terms and subject to the conditions set forth in the Merger Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Certain Covenants.
1.1 Lock-Up. Securityholder hereby covenants and agrees during the
term of this Agreement that (a) except as consented to in writing by
Parent in its sole discretion, Securityholder will not, directly or
indirectly, sell, transfer, assign, pledge, hypothecate or otherwise
dispose of or limit its right to vote in any manner any of the
Securities (as hereinafter defined), or agree to do any of the
foregoing, and (b) Securityholder will not take any action which would
have the effect of preventing or disabling Securityholder from
performing its obligations under this Agreement.
1.2 No Solicitation. During the term of this Agreement, neither
Securityholder nor any person acting as an agent of Securityholder or
otherwise on Securityholder's behalf shall, directly or indirectly,
solicit, encourage or initiate negotiations with, or provide any
information to, any corporation, partnership, person or other entity or
group (other than Parent or an affiliate or an associate of Parent)
concerning any sale, transfer, pledge or other disposition or conversion
of the Securities. Securityholder will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any of the foregoing.
Securityholder will notify Buyer immediately if any party contacts
Securityholder following the date hereof (other than Buyer or an
affiliate or associate of Buyer) concerning any sale, transfer, pledge
or other disposition or conversion of the Securities.
1.3 Voting Agreement.
(a) Securityholder has revoked or terminated any proxies, voting
agreements or similar arrangements previously given or entered into
with respect to the Securities and hereby irrevocably appoints Buyer,
during the term of this Agreement, as proxy for Securityholder to
vote (or refrain from voting) in any manner as Buyer, in its sole
discretion, may see fit, all of the Securities of Securityholder for
Securityholder and in Securityholder's name, place and stead, at any
annual, special or other meeting or action of the securityholders of
the Company, as applicable, or at any adjournment thereof or pursuant
to any consent of securityholders of the
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Company, in lieu of a meeting or otherwise, with respect to (i) the
adoption and approval of the Merger Agreement, (ii) any extraordinary
corporate transaction (other than the Merger), such as a merger,
consolidation, business combination, tender or exchange offer,
reorganization, recapitalization, liquidation or other change of
control involving the Company or any of its subsidiaries, including,
but not limited to, any Acquisition Proposal (as defined in the
Merger Agreement), and (iii) any sale or transfer of a material
amount of the assets or securities of the Company or any of its
subsidiaries (other than pursuant to the Merger). The parties
acknowledge and agree that neither Buyer, nor Buyer's successors,
assigns, subsidiaries, divisions, employees, officers, directors,
shareholders, agents and affiliates shall owe any duty to, whether in
law or otherwise, or incur any liability of any kind whatsoever,
including without limitation, with respect to any and all claims,
losses, demands, causes of action, costs, expenses (including
reasonable attorney's fees) and compensation of any kind or nature
whatsoever to Securityholder in connection with, as a result of or
otherwise relating to any vote (or refrain from voting) by Buyer of
the Securities subject to the irrevocable proxy hereby granted to
Buyer at any annual, special or other meeting or action or the
execution of any consent of the securityholders of the Company.
(b) Notwithstanding the foregoing grant to Buyer of the
irrevocable proxy, in the event Buyer elects not to exercise its
rights to vote the Securities pursuant to the irrevocable proxy,
Securityholder agrees to vote all of the Securities during the term
of this Agreement (i) if the issue on which Securityholder is
requested to vote is a proposal to approve the Merger, Securityholder
agrees to vote in favor of or give its consent to, as applicable,
such transaction or (ii) otherwise in the manner directed by Buyer at
any annual, special or other meeting or action of securityholders of
the Company, in lieu of a meeting or otherwise with respect to any
issue brought before the securityholders of the Company.
1.4 Tender of Securities.
(a) Securityholder agrees to tender, and not withdraw, the
Securities owned by Securityholder to Buyer in the Initial Offer (as
defined in the Merger Agreement), and in any event no later than 10
business days following the commencement of the Initial Offer.
(b) Buyer shall withhold 10% of Securityholder's gross aggregate
Offer Price (as defined in the Merger Agreement) received in the
Initial Offer for the Securities (which amount is equal to
$ at a $7 per share Offer Price) and place such amount into
an escrow account (the "Indemnification Escrow") pursuant to the
terms of an escrow agreement in substantially the form of Exhibit A
hereto (the "Escrow Agreement"). The funds in the Indemnification
Escrow shall secure the indemnification obligations of Securityholder
and shall be distributed to Securityholder on the first anniversary
of the Closing, subject to claims made in accordance with the
Indemnification Agreement (as defined in the Merger Agreement).
1.5 Public Announcement. Securityholder shall consult with Parent
before issuing any press releases or otherwise making any public
statements with respect to the transactions contemplated herein and
shall not issue any such press release or make any such public statement
without the approval of Buyer, except as may be required by law.
1.6 Stop Transfer Instruction. Promptly following the date hereof,
Securityholder and Buyer shall deliver joint written instructions to the
Company and to the Company's transfer agent stating that the Securities
may not be sold, transferred, pledged, assigned, hypothecated or
otherwise disposed of in any manner without the prior written consent of
Buyer or except in accordance with the terms and conditions of this
Agreement.
1.7 Debt to the Company. Pursuant to the terms of Securityholder's
note payable to the Company and related pledge agreement (collectively,
the "Loan Agreement"), the Company hereby consents to Securityholder
entering into this Agreement and agreeing to tender the Securities in
the Initial Offer.
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2. Representation and Warranties.
2.1 Representations and Warranties of Buyer and Parent. Buyer and
Parent, hereby jointly and severally, represent and warrant to
Securityholder, as of the date hereof and as of the date Buyer purchases
shares of Company Common Stock pursuant to the Initial Offer, as
follows:
(a) Authorization. Each of Buyer and Parent is a corporation
duly organized, validly existing and in good standing under the laws
of its state of incorporation. Each of Buyer and Parent has all
requisite power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. Each of Buyer
and Parent has duly authorized, executed and delivered this Agreement
and this Agreement is a legal, valid and binding agreement of Buyer,
enforceable against Buyer in accordance with its terms.
2.2 Representations and Warranties of
Securityholder. Securityholder hereby represents and warrants to Buyer
and Parent, as of the date hereof and as of the date Buyer purchases
shares of Company Common Stock pursuant to the Initial Offer, as
follows:
(a) Ownership. Securityholder is the sole record and beneficial
owner of, and has good and marketable title to, shares
of Company Common Stock (collectively, the "Securities"), in each
case free and clear of all liabilities, claims, liens, options,
proxies, charges, participations and encumbrances of any kind or
character whatsoever, except for any security interest securing the
obligations under the Loan Agreement.
(b) Authorization. Securityholder has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and has sole voting power and sole
power of disposition, with respect to all of the Securities owned by
Securityholder with no restrictions on its voting rights or rights of
disposition pertaining thereto. Securityholder has duly authorized,
executed and delivered this Agreement and this Agreement is a legal,
valid and binding agreement of Securityholder, enforceable against
Securityholder in accordance with its terms.
(c) No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated
hereby will (a) require Securityholder to file or register with, or
obtain any material permit, authorization, consent or approval of,
any governmental agency, authority, administrative or regulatory
body, court or other tribunal, foreign or domestic, or any other
entity, or (b) violate, or cause a breach of or default under, any
contract, agreement or understanding, any statute or law, or any
judgment, decree, order, regulation or rule of any governmental
agency, authority, administrative or regulatory body, court or other
tribunal, foreign or domestic, or any other entity or any arbitration
award binding upon Securityholder. No proceedings are pending which,
if adversely determined, will have a material adverse effect on any
of the Securities. Securityholder has not previously assigned or sold
any of the Securities to any third party.
(d) Securityholder Has Adequate Information. Securityholder is
a sophisticated seller with respect to the Securities and has
adequate information concerning the business and financial condition
of the Company to make an informed decision regarding the sale of the
Securities and has independently and without reliance upon Buyer or
Parent and based on such information as Securityholder has deemed
appropriate, made its own analysis and decision to enter into this
Agreement. Securityholder acknowledges that neither Buyer nor Parent
has made and neither make any representation or warranty, whether
express or implied, of any kind or character except as expressly set
forth in this Agreement. Securityholder acknowledges that the
agreements contained herein with respect to the Securities by
Securityholder are irrevocable, and that Securityholder shall have no
recourse to the Securities or Buyer or Parent, except with respect to
breaches of representations, warranties, covenants and agreements
expressly set forth in this Agreement, and pursuant to indemnities
contained herein.
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(e) Buyer's Excluded Information. Securityholder acknowledges
and confirms that (a) Buyer or Parent may possess or hereafter come
into possession of certain non-public information concerning the
Securities and the Company which is not known to Securityholder and
which may be material to Securityholder's decision to sell the
Securities ("Buyer's Excluded Information"), (b) Securityholder has
requested not to receive Buyer's Excluded Information and has
determined to sell the Securities notwithstanding its lack of
knowledge of Buyer's Excluded Information, and (c) Buyer and Parent
shall have no liability or obligation to Securityholder, in
connection with, and Securityholder hereby waives and releases Buyer
and Parent from, any claims which Securityholder or its successors
and assigns may have against Buyer or Parent (whether pursuant to
applicable securities laws or otherwise) with respect to, the
non-disclosure of Buyer's Excluded Information; provided, however,
nothing contained in this Section 2.2(e) shall limit Securityholder's
right to rely upon the express representations and warranties made by
Buyer and Parent in this Agreement, or Securityholder's remedies in
respect of breaches of any such representations and warranties.
(f) No Setoff. Securityholder has no liability or obligation
related to or in connection with the Securities other than the
obligations to Buyer and Parent as set forth in this Agreement. There
are no legal or equitable defenses or counterclaims that have been or
may be asserted by or on behalf of the Company, as applicable, to
reduce the amount of the Securities or affect the validity or
enforceability of the Securities.
3. Survival of Representations and Warranties. The respective
representations and warranties of Securityholder, Parent and Buyer
contained herein or in any certificates or other documents delivered in
connection herewith shall not be deemed waived or otherwise affected by any
investigation made by the other party hereto, and each representation and
warranty contained herein shall survive the closing of the transactions
contemplated hereby until the expiration of the applicable statute of
limitations, including extensions thereof.
4. Specific Performance. Securityholder acknowledges that Buyer and
Parent will be irreparably harmed and that there will be no adequate remedy
at law for a violation of any of the covenants or agreements of
Securityholder which are contained in this Agreement. It is accordingly
agreed that, in addition to any other remedies which may be available to
Buyer and Parent upon the breach by Securityholder of such covenants and
agreements, Buyer and Parent shall have the right to obtain injunctive
relief to restrain any breach or threatened breach of such covenants or
agreements or otherwise to obtain specific performance of any of such
covenants or agreements.
5. Miscellaneous.
5.1 Term. This agreement shall terminate upon the termination of
the Merger Agreement.
5.2 Expenses. Each of the parties hereto shall pay its own
expenses incurred in connection with this Agreement. Each of the parties
hereto warrants and covenants to the others that it will bear all claims
for brokerage fees attributable to action taken by it.
5.3 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their
respective representatives and permitted successors and assigns.
5.4 Entire Agreement. This Agreement contains the entire
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter.
This Agreement may be amended only by a written instrument duly executed
by the parties hereto.
5.5 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Time is of the essence with respect to
all provisions of this Agreement.
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5.6 Assignment. This Agreement may not be transferred or assigned
by Securityholder but may be assigned by Buyer to any of its affiliates
or to any successor to its business and will be binding upon and inure
to the benefit of any such affiliate or successor.
5.7 Counterparts. This Agreement may be executed in two
counterparts, each of which shall be an original, but both of which
together shall constitute one and the same Agreement.
5.8 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given if so given) by delivery,
telegram or telecopy, or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any national courier service,
provided that any notice delivered as herein provided shall also be
delivered by telecopy at the time of such delivery. All communications
hereunder shall be delivered to the respective parties at the following
addresses (or at such other address for a party as shall be specified by
like notice, provided that notices of a change of address shall be
effective only upon receipt thereof):
If to Parent or Buyer:
General Electric Company
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: C. Xxxxxxx Xxxxxx, Esq.
Xxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
If to Securityholder:
Telecopy:
5.9 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Delaware, without regard to its principles of conflicts of laws.
5.10 Enforceability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity
or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
5.11 Further Assurances. From time to time at or after the date
Buyer purchases shares of Company Common Stock pursuant to the Initial
Offer, at Buyer's request and without further consideration,
Securityholder shall execute and deliver to Buyer such documents and
take such action as Buyer may reasonably request in order to consummate
more effectively the transactions contemplated hereby and to vest in
Buyer good, valid and marketable title to the Securities, including, but
not limited to, using its best efforts to cause the appropriate transfer
agent or registrar to transfer of record the Securities.
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IN WITNESS WHEREOF, Buyer, Parent, Securityholder and the Company have
caused this Agreement to be duly executed as of the day and year first above
written.
EMMY ACQUISITION CORP.
By:
--------------------------------------
Name
Title
GE ENERGY SERVICES, INC.
By:
--------------------------------------
Name
Title
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Securityholder
SHOWPOWER, INC.,
for purposes of Section 1.7 only
By:
--------------------------------------
Name
Title
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EXHIBIT A
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement"), dated as of ,
2000, is entered into by and among GE Energy Services, Inc., a Delaware
corporation ("Parent"), Emmy Acquisition Corp., a Delaware corporation and
wholly owned subsidiary of Parent ("Buyer"), and G. Xxxxxxxx Xxxxxxxx and Xxxx
X. Xxxxxxx, in their capacity as the stockholder representatives (the
"Stockholder Representatives") of the stockholders identified on Schedule I
hereto (the "Securityholders") of Showpower, Inc., a Delaware corporation (the
"Company"), and , a banking corporation, as escrow
agent (the "Escrow Agent"). Capitalized terms used but not otherwise defined in
this Agreement shall have the meanings ascribed to such terms in the
Indemnification Agreements (as hereinafter defined).
WITNESSETH:
WHEREAS, Parent, Buyer and the Company have entered into an Agreement and
Plan of Merger (the "Merger Agreement") dated as of December , 1999 pursuant
to which Buyer has agreed to make a cash tender offer described therein and
thereafter merge with and into the Company (the "Merger") in accordance with the
provisions of the Delaware General Corporation Law of the State of Delaware;
WHEREAS, as of the date hereof, Stockholder Representatives are the
representatives of the Securityholders who beneficially own and have the power
to vote in the aggregate [ ] shares of the common stock, par value
$.01 per share, of the Company (the "Company Common Stock") as set forth on
Schedule I hereto;
WHEREAS, concurrently with the execution and delivery of the Merger
Agreement, Parent, Buyer, the Stockholder Representatives and each of the
Securityholders have entered into agreements, dated as of the date hereof (the
"Indemnification Agreements"), pursuant to which, among other things, each
Securityholder has irrevocably appointed the Stockholder Representatives as
their agent and attorney-in-fact and has agreed to indemnify Parent and Buyer
for breaches of representations, warranties and covenants contained in the
Merger Agreement, subject to the terms and conditions contained in the
Indemnification Agreement;
WHEREAS, concurrently with the execution and delivery of the Merger
Agreement, Parent, Buyer, the Company and each of the Securityholders have
entered into agreements, dated as of the date hereof (the "Tender Agreements"),
pursuant to which, among other things, each Securityholder has agreed to tender
his shares of Company Common Stock in the Initial Offer (as defined in the Merge
Agreement);
WHEREAS, Section 1.4(b) of the Tender Agreements provides for Buyer to
withhold from the Offer Price (as defined in Section 1.1(a) of the Merger
Agreement) payable to the Securityholders and deliver to the Escrow Agent
[ ] in the aggregate (the "Indemnification Escrow Fund") (each
Securityholder's portion of such Indemnification Escrow Fund is identified on
Schedule I hereto) on the date the shares of Company Common Stock are purchased
by Buyer pursuant to the Initial Offer (the "Purchase Date"); and
WHEREAS, Parent, Buyer and each Securityholder intend for the
Indemnification Escrow Fund to secure the indemnification obligations of such
Securityholder under Section 3 of the Indemnification Agreements and to be held
by the Escrow Agent in accordance with the provisions of this Agreement;
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and for other good and valuable consideration, the receipt of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Appointment of the Escrow Agent. Parent, Buyer and each
Securityholder hereby appoint and designate the Escrow Agent as escrow
agent to receive, hold and disburse the Indemnification Escrow Fund in
accordance with the terms of this Agreement. The Escrow Agent hereby
accepts its appointment
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as the escrow agent and agrees to receive, hold and disburse the
Indemnification Escrow Fund and any income, interest or other amounts
received thereon in accordance with the terms of this Agreement.
2. The Indemnification Escrow Fund.
2.1 Receipt of the Indemnification Escrow Fund. The Escrow Agent
hereby acknowledges receipt of the Indemnification Escrow Fund.
2.2 Investment of the Indemnification Escrow Fund. The Escrow
Agent shall invest the Indemnification Escrow Fund as instructed by the
Stockholder Representatives in (i) savings accounts with, repurchase
agreements, or certificates of deposit issued by, federally chartered
banks or trust companies, the assets of which are at least $100,000,000
in excess of their liabilities, (ii) United States Treasury Bills (or an
investment portfolio or fund investing only in United States Treasury
Bills), (iii) commercial paper rated in the highest grade by a
nationally recognized credit rating agency or (iv) the [TREASURY
OBLIGATIONS MONEY MARKET FUND] (as long as such money market fund is
rated AAA by a nationally recognized credit rating agency), with the
income from such invested cash being held by the Escrow Agent as part of
the Indemnification Escrow Fund. The parties hereto agree that the
income from such invested cash shall be recognized as income by each
Securityholder for federal, state and local tax purposes.
2.3 Disbursement of the Indemnification Escrow Fund. The
Indemnification Escrow Fund shall secure each Securityholder's
obligations with respect to a claim by a Buyer Indemnitee (as defined in
Section 3.1 of the Indemnification Agreements) for indemnification from
each Securityholder (an "Indemnity Claim") pursuant to the
indemnification obligations set forth in Section 3 of the
Indemnification Agreements.
(i) The Escrow Agent shall disburse to any Buyer Indemnitee an
amount equal to that Buyer Indemnitee's Indemnity Claim promptly
following receipt of (A) the written consent or agreement of Parent
and the Stockholder Representatives to the payment of such Indemnity
Claim, specifying the amount thereof, or (B) a final decision, order,
judgment or decree of an arbitrator or court having jurisdiction
which is either not subject to appeal or as to which notice of appeal
has not been timely filed or served (a "Final Decision") with respect
to such Indemnity Claim, specifying the amount thereof.
(ii) On the first anniversary of the Closing (as defined in
Section 1.4 of the Merger Agreement), the Escrow Agent shall, subject
to the disbursement of the Indemnification Escrow Fund pursuant to
Section 2.3(i) of this Agreement, disburse to the Stockholder
Representatives, or in the manner directed by the Stockholder
Representatives, the remaining balance of the Indemnification Escrow
Fund, less the amount of any unresolved Indemnity Claims of which the
Escrow Agent has received notice.
All disbursements from the Indemnification Escrow Fund shall be made
by wire transfer of cash in immediately available funds to the person
entitled thereto.
2.4 Stockholder Representatives. Escrow Agent shall be able to
rely conclusively, without inquiry or liability, on the instructions,
agreements and decisions of the Stockholder Representatives, acting
jointly, with respect to all actions or matters permitted to be taken by
the Stockholder Representatives hereunder or under the Indemnification
Agreements, and no party shall have any cause of action against Escrow
Agent for any action taken by Escrow Agent in reliance upon the
agreements, instructions or decisions of the Stockholder Representatives
acting jointly. All actions, agreements, decisions and instructions of
the Stockholder Representatives shall be conclusive and binding upon
each Securityholder.
3. Termination of the Indemnification Escrow Fund. The escrow
provided for hereunder shall terminate upon the disbursement of the
Indemnification Escrow Fund pursuant to Section 2.3(ii) of this Agreement.
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4. Covenants of the Escrow Agent. The Escrow Agent hereby agrees and
covenants to Parent, Buyer, the Stockholder Representatives and each
Securityholder as follows:
(a) The Escrow Agent agrees to perform all of its obligations
under this Agreement and not to deliver custody or possession of any
of the Indemnification Escrow Fund to anyone except pursuant to the
express terms of this Agreement.
(b) The Escrow Agent agrees to send, within three (3) business
days after receipt of a written notice from any party hereto, one
copy of such written notice to all other parties hereto.
5. Resignation and Removal of the Escrow Agent. The Escrow Agent may
resign from the performance of its duties hereunder at any time by giving
thirty (30) days' prior written notice to Parent and the Stockholder
Representatives or may be removed, with or without cause, by Parent at any
time by the giving of thirty (30) days' prior written notice to the Escrow
Agent.
Such resignation or removal shall take effect upon the appointment of
a successor escrow agent as provided herein. Upon any such notice of
resignation or removal, Parent and the Stockholder Representatives shall
appoint a successor escrow agent hereunder, which shall be a commercial
bank, trust company or other financial institution with a combined capital
and surplus in excess of $100,000,000. Upon the acceptance in writing of
any appointment as Escrow Agent hereunder by a successor escrow agent, such
successor escrow agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Escrow Agent,
and the retiring Escrow Agent shall be discharged from its duties and
obligations under this Agreement, but shall not be discharged from any
liability for actions taken as Escrow Agent hereunder prior to such
succession. After any retiring Escrow Agent's resignation or removal, the
provisions of this Agreement shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Escrow Agent under this
Agreement.
6. Liability of the Escrow Agent. The Escrow Agent shall have no
liability or obligation with respect to the Indemnification Escrow Fund
except for the Escrow Agent's willful misconduct or gross negligence. The
Escrow Agent may rely upon any instrument, not only as to its due
execution, validity and effectiveness, but also as to the truth and
accuracy of any information contained therein, which the Escrow Agent shall
in good faith believe to be genuine, to have been signed or presented by
the person or parties purporting to sign the same and to conform to the
provisions of this Agreement. The Escrow Agent may consult legal counsel
selected by it in the event of any dispute or question of the construction
of this Agreement, the Merger Agreement or the Indemnification Agreements
or seek the assistance of a court of competent jurisdiction, and shall
incur no liability and shall be fully protected in acting in accordance
with the opinion or instruction of such counsel or such court. Provided
that the Escrow Agent shall be in compliance with its duties hereunder,
Parent and each Securityholder hereby jointly agree to indemnify and hold
harmless the Escrow Agent against any and all losses, claims, damages,
liabilities and expenses, including reasonable costs of investigation and
counsel fees and disbursement, which may be imposed upon the Escrow Agent
or incurred by the Escrow Agent in connection with its acceptance of
appointment as escrow agent hereunder, or the performance of its duties
hereunder, including any litigation arising from this Agreement or
involving the subject matter hereof of the cash deposited hereunder.
7. Compensation of the Escrow Agent. Parent shall compensate the
Escrow Agent for performing its duties hereunder in accordance with
Schedule II attached hereto.
8. Miscellaneous.
8.1 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their
respective representatives and permitted successors and assigns.
8.2 Entire Agreement. This Agreement contains the entire
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject
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matter. This Agreement may be amended only by a written instrument duly
executed by the parties hereto.
8.3 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.4 Waiver. Any party hereto may, at its option, waive in writing
any or all of the conditions herein contained to which its obligations
hereunder are subject. No waiver of any provision of this Agreement,
however, shall constitute a waiver of any other provision (whether
similar or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
8.5 Time of the Essence. Time is of the essence with respect to
all provisions of this Agreement.
8.6 Assignment. This Agreement may not be transferred or assigned
by any Securityholder but may be assigned by Parent or Buyer to any of
its affiliates or to any successor to its business and will be binding
upon and inure to the benefit of any such affiliate or successor.
8.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which
together shall constitute one and the same Agreement.
8.8 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given if so given) by delivery,
telegram or telecopy, or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any national courier service,
provided that any notice delivered as herein provided shall also be
delivered by telecopy at the time of such delivery. All communications
hereunder shall be delivered to the respective parties at the following
addresses (or at such other address for a party as shall be specified by
like notice, provided that notices of a change of address shall be
effective only upon receipt thereof):
If to Parent or Buyer:
General Electric Company
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: C. Xxxxxxx Xxxxxx, Esq.
Xxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
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If to Stockholder Representatives:
Showpower, Inc.
00000 Xxxxx Xxxxx Xx Xxxxxx
Xxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: G. Xxxxxxxx Xxxxxxxx
Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Escrow Agent:
Attention:
Telecopy:
8.9 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Delaware, without regard to its principles of conflicts of laws.
8.10 Enforceability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity
or enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
8.11 Further Assurances. From time to time at or after the
Purchase Date, at Parent's or Buyer's request and without further
consideration, the Stockholder Representatives shall execute and deliver
to Parent or Buyer such documents and take such action as Parent or
Buyer may reasonably request in order to consummate more effectively the
transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, Buyer, Parent, the Stockholder Representatives and the
Escrow Agent have caused this Agreement to be duly executed as of the day and
year first above written.
EMMY ACQUISITION CORP.
By:
------------------------------------
Name
Title
GE ENERGY SERVICES, INC.
By:
------------------------------------
Name
Title
STOCKHOLDER REPRESENTATIVE,
on behalf of the Securityholders
identified on Schedule I hereto
--------------------------------------
G. Xxxxxxxx Xxxxxxxx
STOCKHOLDER REPRESENTATIVE,
on behalf of the Securityholders
identified on Schedule I hereto
--------------------------------------
Xxxx X. Xxxxxxx
[ESCROW AGENT]
By:
------------------------------------
Name
Title
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SCHEDULE I
SECURITYHOLDERS
SECURITYHOLDER NUMBER OF SHARES PORTION OF ESCROW
-------------- ---------------- -----------------
Xxxx X. Xxxxxxx and Xxxxxx Xxx.............................. 209,184 $146,428.80
X. Xxxxxxxx and Xxxxxxx Xxxxxxxx............................ 104,012 72,808.40
Xxxxxxx X. Xxxxxxxxx........................................ 113,670 79,569.00
Xxxxxxx X. Xxxxx............................................ 359,828 251,879.60
Xxxxxx X. Xxxx.............................................. 148,633 104,043.10
Xxxxxx X. Xxxxxxxxx......................................... 244,329 171,030.30
Xxxxx X. and Xxxxxx Xxxxxxxxx............................... 180,093 126,065.10
Xxxxxxx X. Xxxxxxx.......................................... 55,132 38,592.40
Xxxx X. Xxxxxxx............................................. 75,493 52,845.10
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SCHEDULE II
COMPENSATION OF THE ESCROW AGENT
Escrow Agent's Fee: [$ ]
The Escrow Agent's fee for the term of this Escrow Agreement is due at
signing.
Out of pocket expenses such as, but not limited to, postage, courier,
insurance, overnight mail, long distance telephone, stationery, travel, legal or
accounting, etc., will be billed at cost.
These fees do not include extraordinary services which will be priced
according to time and scope of duties.
It is acknowledged that the schedule of fees shown above is acceptable for
the services mutually agreed upon and the undersigned authorizes
to perform these services.
All escrow agent fees and expense reimbursements shall be paid by
.
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